JUDGMENT
D.L. Mehta, J.
1. This revision petition is directed against the judgment dated 19th February, 1987, passed by the learned Additional District Judge, No. 3, Jaipur City, Jaipur, in Civil Misc. Appeal No. 55 of 1986.
2. It is an admitted case of the parties that after the determination of the provisional rent, the amount was deposited by the present petitioner defendant on the first date of hearing and during the continuation of the proccedings. The case of the petitioner is that he was depositing the amount in advance. He further submits that 6 months advance was given to the Advocate for depositing in the court but the Advocate did not deposit the amount in the court resulting in default of one month payment in time. The Rajasthan Premises (Control of Rent and Eviction Act, 1950, is a beneficial legislation needs interpretation for the benefit of those for whose benefit, the law has been enacted. It is an admitted position that the past conduct of the tenant shows that he was not in paying the monthly rent. The Hon’ble Guj. High Court has taken the view that owing to the lapses on the part of the Advocate, it cannot be said that such tenant was un-willing and was not ready to pay the rent and thus was liable to be evicted. Hon’ble Supreme Court had an opportunity to consider the case of Miss Santosh v. Om Prakash 1980(II) RCR 516, in which Hon’ble Supreme Court has held that the defence of the tenant should not be struck-out unless there is a deliberate and wilful default. Hon’ble Supreme Court further held that the power to strike-out the defence is discretionary and not mandatory. In the same case also the mistake was committed by the Advocate. Hon’ble Supreme Court was pleased to hold that the defence of the tenant should not be struck-off. This Court had also the opportunity to discuss about the applicability of the provisions of Section 5 of the Limitation Act. In the (case of Gopal Dass and Ors. v. Nathulal Baraya . In this case the Division Bench of this Court held that the provisions of Limitation Act, will apply and the delay if any can be condoned. My brother Hon’ble Justice G.M. Lodha, in the case of Desraj v. Om Prakash and Anr. 1987 (1) RLR 244 held as under:
In my opinion, what on account of Section 13-A, disappears is a ground. Payment being made under Section 13(4), default ground also disappears on account of sub-section (6), even though Section 13(A), cannot be made applicable, and no research is required but a reading of Section 13(6) which is patent and not latent shows that no decree on the ground of default can be granted, once compliance of Section 13(4) is made. In my view what Section 13-A, provided for special cases which were pending at the time when the amendment was introduced for providing additional benefit to tenants even though they had committed defaults, has been provided in the form of a protection under Section 13(6). In both the cases, the ground of eviction on account of default in payment of rent disappears, once the amount is paid. In both the cases, decree can be passed on other ground contained in Clause (b) to (1). In this view of the matter, with the greatest respect, I am unable to agree with the principle laid down in Ramsaran’s case (supra), and firmly, I am of the view that the decision in Sivaram’s case is not to be imprisoned in the fetters of Section 13-A only but, it has got wider dimensions related to Section 13(1) because Section 13(6) is the protective umbrella which applies to all the present case under Section 13 as a whole Section 13-A was meant only providing double protection for a limited period.
My brother Hon’ble Justice G.M. Lodha, has held that the wider dimensions should be given to the provisions of Section 13 as a whole. This Court in the case of Firm Kripa Ram Ganesh Lal v. Nijay Kumar Goyal 1986 CLR 236 in which this Court has held as under:
Raj. Premises (Control of Rent and Eviction) Act, 1950, Section 13(3) (4) and (5) striking out of defence for not dispositing arrears of rent determined by court under Section 13(4) even within the extended time–Held, Court had no power to extend time beyond 3 months–No indulgence warranted in view of mandatory provisions of Sub-section (5)–Defence rightly struck out.
3. The question needs further determination whether the provisions of Section 5, of the Limitation Act, can be applied in the matter of the provisions of Section 13(4) or not. It requires further consideration also that whether after the decision referred above, the provisions of Section 13(4) as imprisoned in the fetters against justice and equity.
4. In the facts and circumstances of the case, I consider it just and proper that the view of the Larger Bench, should be obtained to avoid inconsistency. The following issues are referred for the consideration to the Larger Bench:
(1) Whether the provisions of Section 5, of the Limitation Act, can be applied in the matter of depositing of rent under Section 13(4) of the Act, 1950?
(2) Whether the Court has no power even in the interest of justice and equity to extend time beyond the limit prescribed under Section 13(4) of the Act?
(3) Whether Section 13(5) of the Act, is directory?
5. The case may be placed before Hon’ble the Chief Justice for determination of the issues. There exist inconsistencies in the decisions of the Division Bench of this Court. Preferably, the Larger Bench could be of the 3 Judges or more than 3 Judges as the Hon’ble the Chief Justice may deem it proper. Meanwhile, the further proceedings in the trial court is stayed.