1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Deep Lal. Versus Shiv Puri. S.B. Civil Writ Petition No.1047/2007 ... Date of Order: August 26, 2008 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr. J.K. Bhaiya and Durga Ram, for the petitioner. Mr. S.P. Arora, for the respondent. BY THE COURT: By the instant writ petition under Articles 226 and 227 of the Constitution of India, the judgment Annx.5 dated 4-5- 2006 passed by the Additional District Judge No.3, Udaipur (for short, “the Appellate Court” hereinafter) has been challenged by the petitioner. Heard learned counsel for the parties. It is contended by the learned counsel for the petitioner that by the order dated 12-3-2003 (Annx.1), the Civil Judge (Junior Division), Udaipur City (North), Udaipur (for short, “the trial Court” hereinafter) determined the provisional rent 2 under sub-section (3) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short, “the Old Act” hereinafter) and the petitioner was directed to deposit the determined provisional rent within fifteen days; however, subsequent thereto, the period for depositing the determined provisional rent was extended upto 19-4-2003. The order extending the period upto 19-4-2003, came to be challenged by the respondent-landlord before the Appellate Court and the Appellate Court, vide impugned judgment Annx.5 dated 4-5- 2006, allowed the appeal and set aside the order Annx. 4 passed by the trial Court extending the time to deposit the determined provisional rent upto 19-4-2003 and also struck out the defence of the petitioner-tenant. Hence this writ petition. It is contended by the learned counsel for the petitioner that sub-section (4) of Section 13 of the Old Act provides that the tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. According to the learned counsel for the petitioner, the trial Court extended the time for three months, i.e. the time was extended for depositing the determined rent upto 19-4-2003 and within that time, the provisional rent has been deposited. The power has been exercised by the trial Court 3 under Section 13 (4) of the Old Act and, therefore, the petitioner has not committed any default in depositing the determined provisional rent and the Appellate Court fell in error in not only setting aside the order of the trial Court Annx.4 extending the period by three months but also erred in striking out the defence of the petitioner-tenant without there being any application by the respondent-landlord under Section 13 (5) of the Old Act. Sub-section (5) of Section 13 of the Old Act provides that if a tenant fails to deposit or pay any amount referred to in sub- section (4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. Such an application was neither moved by the respondent-landlord before the Appellate Court, nor the Appellate Court was called upon to decide such issue. However, the Appellate Court, while hearing the appeal against extending the time by three months by the trial Court as provided under sub-section (4) of Section 13 of the Old Act, set aside the order of the trial Court extending the time as also struck out the defence of the petitioner-tenant. In my view, the impugned order Annx.5 cannot be sustained firstly because there was no such application under sub-section (5) of Section 13 of the Old Act filed by the respondent-landlord, and secondly no such case was put by the respondent-landlord before the trial Court and as such, the 4 impugned order is liable to be set aside. So far as the order Annx.4 passed by the learned trial Court extending the period upto three months is concerned, the law provides such power under sub-section (4) of Section 13 of the Old Act and the trial Court, exercising the discretion, extended the time judiciously. Therefore, the impugned order is liable to be set aside. Even otherwise, by an interim order dated 8-3-2007 passed by this Court, the operation of the impugned order Annx.5 striking out of the defence of the petitioner-tenant was stayed and the trial proceeded. Consequently, the writ petition is allowed and the impugned order Annx.5 dated 4-5-2006 passed by the Appellate Court is set aside. There shall be no order as to costs. (H.R. PANWAR), J. mcs