- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 140 of 2008 KRISHAN LAL MALIK V/S A.D.J. NO. 2 SRIGANGANAGAR & ORS. Mr. VIJAY AGGARWAL, for the appellant / petitioner Date of Order : 28.2.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- Heard learned counsel for the appellant, and perused the impugned order. It was firstly contended that the learned Single Judge has erred in observing that admittedly the rent was not paid, while as a matter of fact, rent had been paid. To appreciate the arguments, we asked the learned counsel about the dates, and it was told that rent was deposited on 13.1.2005. Thus, it is clear that rent for the months of October and November 2004 was not paid till 13.1.2005. It was then contended that in view of the fact that during pendency of the present suit, another suit was filed by the landlord on 27.1.2004, wherein the revised rent was determined on 24.9.2004, and we are informed that it was revised to Rs.543/- per month as on 31.3.2003 with - 2 - permissible increase. It is contended that in view of the revision of rent in the subsequent suit, the provisional determination of rent made under Section 13(3) comes to an end automatically, and the appellant did not remain under any obligation to continue to pay the rent in accordance with Section 13(4). It was also contended that there is a doctrine of implied repeal, and in the present case, since the landlord had resorted to filing of the fresh suit in accordance with the provisions of new Rent Control Act, for all intent and purposes, the present suit was required to be treated as having been abandoned, as the landlord cannot sail on two boats, one being under the present suit, and other being of the fresh suit filed under the New Act. We have considered the submissions, and do not find ourselves able to be persuaded with the submissions. The aspect about revision of rent in the subsequent suit has been considered by learned Single Judge, and relying upon the provisions of Section 32 of the new Act, it has been held that the present suit is required to be continued, and disposed of in accordance with the provisions of the old Act itself, as if the new Act had not been enacted. Admittedly, the present suit is a suit for eviction inter-alia on the ground of default, while the subsequent suit was not filed for eviction, but was only for determination of rent in accordance with the new Act. In that view of the matter, it cannot be said that the - 3 - plaintiff had, or had tried to sail on the two boats at the same time, and we are in perfect agreement with the reasoning given by the learned Single Judge on the anvil of Section 32 of the new Act. With this, when undisputedly the rent for the month of October and November 2004 has not been paid, or deposited within the time permissible, or even extendable, in view of the judgment of Hon'ble the Supreme Court in Nasiruddin's case, it cannot be said that the learned Courts below were in error in striking out the defence. Learned counsel also relied upon the provisions of Section 13(5), (6), (7) & (8) of the old Act to contend that at the time of final decision of the suit, the Court is to make adjustment of the rents, and therefore also, the defence should not be struck off. In our view, suffice it to say that Section 13(5) has it's own individual field of operation, inasmuch as, it is not in dispute that determination under Section 13(3) was made vide order dated 3.8.2001, and that had become final, with the result that per force, Section 13(4), the tenant was required to continue to deposit rent month by month at the pain of defence to be liable to be struck off under Section 13(5). By the way, we may also observe that may be that the rent may have been determined in the second suit, but then the appellant has not deposited the rent for the - 4 - months of October and November 2004 at either of the two rates, i.e. agreed rate as was determined under Section 13 (3), or the revised rate. Thus, even on equitable considerations, we do not find any ground to interfere with the impugned order. The appeal thus, has no force, and is dismissed summarily. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. /tarun/