JUDGMENT
Tatia, J.
1. Heard learned counsel for the parties. At the request of learned counsel for both the parties, this appeal is heard finally.
2. The brief facts of the case are that the plaintiff- respondent filed the suit for eviction against the defendant- tenant on the ground that the suit premises was let out by the plaintiff to defendant on 1.4.1959. The defendant-tenant committed default in payment of rent, therefore, plaintiff filed the suit No. 154/80 wherein the defendant was declared defaulter in payment of rent by judgment and decree dated 13.1.1984 but in view of the relevant provision, the suit of the plaintiff was dismissed after giving benefit of first default to the tenant. That judgment is final. It is alleged by the plaintiff that defendant-tenant paid rent up to March, 1985 but thereafter he did not pay any rent of the premises. Ultimately, the plaintiff filed the present suit seeking decree for eviction as well as decree for arrears of rent on the ground of second default committed by the defendant-tenant. The plaintiff claimed that defendant has not paid rent for the seven years.
3. The defendant submitted written statement and admitted that earlier defendant was declared defaulter but benefit of first default was given under the provisions of Rent Control Act. It is submitted that defendant was always ready and willing to pay the rent of the premises to the plaintiff, therefore, defendant challenged the decree dated 13.1.1984 by filing appeal but that was dismissed by the appellate court on 2.7.1993. It is submitted that during the pendency of the appeal, plaintiff took rent of the premises from the defendant for the period from April, 1984 to March, 1985 but he did not give any receipt of the rent, therefore, the defendant submitted an application before the first appellate court hearing the appeal against the judgment and decree dated 13.1.1984. It is submitted that in view of the plaintiff’s conduct, the defendant was compelled to deposit the rent again in the court and defendant paid rent up to 30.6.2003 to the landlord by depositing it in court. After the decision of the appeal, the defendant again offered rent of the premises but plaintiff did not accept it, therefore, the defendant sent a Money Order on 30.7.1993 to the plaintiff which was returned back to the defendant on refusal of the plaintiff from accepting the rent. The defendant thereafter sent a notice to the plaintiff with a request that the plaintiff may give details of bank account where defendant may deposit the rent but no reply was given by the plaintiff. Therefore, the defendant started depositing rent in court as per the provisions of Section 19-A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. Therefore, the defendant has not committed any default in payment of the rent of the premises in dispute. Hence, defendant prayed that the suit of the plaintiff may be dismissed.
4. The trial court, vide its judgment and decree dated 20.2.1996, dismissed the suit of the plaintiff. The plaintiff- respondent preferred appeal against the judgment and decree of the trial court. The said appeal No. 99/97 was allowed by the first appellate court. The first appellate court held that the defendant committed second default in payment of rent as defendant did not deposit the rent of the premises as per the provisions of Section 19-A of the Act of 1950. The first appellate court held that deposit of rent by the defendant in pursuance of the order dated 7.5.1985 passed in earlier appeal (No. 18/98) preferred against the judgment and decree passed in earlier suit No. 154/80 decided on 13.1.1984 cannot save the defendant and despite deposit of rent by the tenant in pursuance of the order dated 7.5.1985, the defendant-appellant is defaulter, the first appellate court interpreted the order dated 7.5.1985 in a way which shows that meaning of the deposit of rent “in accordance with rules/law only means that defendant was required to pay the rent of the premises to the plaintiff landlord in accordance with law and deposit of rent in the appellate court or in the trial court wherein earlier decree dated 13.1.1984 was passed cannot be said to be a payment of rent “in accordance with law” and proper procedure for the defendant-tenant was to deposit under the provisions of Section 19-A of the Act of 1950.
5. The following substantial question of law is involved in this appeal:-
“Whether in the facts of this case, defendant has committed second default in payment of rent of the rented premises despite the fact that defendant deposited the rent of the alleged default period in trial court in pursuance of the order passed by the first appellate court in earlier proceedings?”
6. It is clear from the facts that the plaintiff’s earlier suit No. 154/80 was decreed by the trial court holding that defendant has committed default in payment of rent and as per Section 136 of the Act of 1950 the defendant is entitled for the benefit and decree for eviction cannot be passed against the tenant. In this case, admittedly the benefit of first default was given to the defendant-tenant in earlier suit No. 154/80. There was some controversy with respect to the fact what course is required to be taken/adopted by the tenant after the dismissal of the suit or during the pendency of the appeal against a decree where controversy regarding default is involved. The earlier view of this court was that the defendant-tenant is not required to deposit the rent during of the pendency of the appeal against the decree for eviction based on the ground of default. Now the law has been settled by the Hon’ble Supreme Court in the case of Shivdutt Jadia v. Ganga Devi (1), wherein the Hon’ble Supreme Court held that question of payment, remittance or deposit of rent by tenant in one of the modes provided by Section 19-A could have been arisen if there was no suit or appeal pending between the landlord and the tenant and therein the tenant was not required to deposit or could not have made deposit of rent in court. In view of the above decision, the reasons given by the first appellate court goes contrary to the law laid down by the Apex court and the first appellate court committed illegality in holding that the tenant was required to deposit the rent only under Section 19-A of the Act of 1950 and deposit of rent by the defendant-tenant during the pendency of the appeal in the matter of earlier suit is wrong. It will be worthwhile to mention here that the Hon’ble Supreme Court considered the judgment of this court delivered in case of Kamruddin v. Wahid Ali wherein Single Bench of this Court held that after the decision of the suit, tenant is under no obligation to deposit rent month by month after holding that Section 13 of the Act of 1950 applies to suits only and appeal cannot be held to continuation of suit for the purpose of Section 13 (4) of the Act of 1950. This Court distinguished the judgment of the Hon’ble Supreme Court in the case of Mranalini B. Shah and Anr. v. Bapa Lal Mohan Lal Shah (2), and after considering other judgments of this Court. The said judgment of Kamruddin (3), which was considered by the Full Bench of this Court in the case of Raghunath Singh (Minor) v. Vikrani Sharma and Ors. (4), and the Full Bench also took the same view that tenant is not required to deposit the provisional rent as determined under Section 13(3) of the Act at the stage of appeal and non-payment of such rent would also not entail the consequence of striking out the defence of the tenant. Though the decision of Full Bench of this Court was not brought to the notice of the Hon’ble Supreme Court when case of Shivdutt Jadia was decided by the Hon’blc Apex Court but it is clear that point in controversy has been decided by the Hon’ble Supreme Court and the decision which was upheld by the Full Bench of this Court that is Kamruddin’s case was before the Hon’ble Supreme Court, therefore, the decision of this Court in case of Kamruddin v. Wahid Ali as well as the Full Bench of this Court delivered in case of Raghunath v. Vikram Sharma do not hold the field and the position of law as laid down by the Hon’ble Supreme Court in the case of Shiv Dutt Jadia squarely covers the controversy.
7. In view of the decision of the Hon’ble Supreme Court even if the order dated 7.5.1985 would not have been passed on the application of the defendant in earlier appeal still the appellant-tenant was entitled for the benefit of his deposit of rent in the court. Apart from it, it is clear from the order dated 7.5.1985 that the first appellate court in impugned judgment wrongly interpreted the order dated 7.5.1985. The order dated 7.5.1985 is clear permission to the defendant to deposit the rent in trial court which certainly means the trial court which concluded the trial of the suit against which the appeal was preferred and order dated 7.5.1985 was passed. Therefore on facts also, the first appellate court committed grave error of law resulting into reversal of the judgment and decree of the trial court.
8. Hence, the appeal of the appellant deserves to be allowed. The judgment and decree of the first appellate court dated 30.1.1999 is set aside and the suit of the plaintiff stands dismissed. No order as to costs.