J.C. Verma, J.
1. A suit for eviction was filed by the respondent plaintiff in November, 1985 against the appellant on the ground of recovery of arrears of rent, material alteration and nuisance etc. in respect of the disputed premises.
2. Vide order dated 10.12.1986, the rent Court had determined the provisional rent as required under Section 13(3) of the Rajasthan (Control of Rent and Eviction) Act, (here-in-after referred to as the Rent Act) with interest etc. vide another order dated 17.7.1987, the Rent Court had directed the appellant defendant to deposit month to month rent in the bank account of the plaintiff. But it was stated that no such rent had been deposited in the bank account and because of such defect, the defence of the appellant was ultimately struck off vide order dated 5.2.1992, which order is under challenge.
3. It is the case of the appellant that the rent stood deposited in the Court which is the admitted fact in the order impugned dated 5.2.1992 and, therefore, the impugned order could not have been passed.
4. As per the order of the trial Court, the following facts stand admitted; (1) the rent from 1.6.1991 to 3.5.1992 had been deposited in the bank accounts; (2) the rent prior to 1.6.1991 stood deposited in the Court itself.
5. Even though the full rent along with arrears etc. stood deposited for the period prior to 1.6.1991 in the Court itself and for the period subsequent to 1.6.1991 in the bank account of the plaintiff, but the trial Court observed that the appellant defendant was directed to deposit the rent in the bank account of the plaintiff in Account No. 265, State Bank of India, Vishwakarma Industrial Area branch and for the reason that instead of depositing in the bank account, the rent had been deposited in the Court and relying on 1971 (1) RCR 179 to the effect that after the order dated 17.7.1987, the rent should have been deposited in the bank account and not in the Court, the Trial Court had observed that even though rent had been deposited in the Court, but that deposit cannot be considered a valid deposit in accordance with the order of the Court as it should have been deposited only in the bank account. On such observations, the defence of the present appellant was struck off under Sub-section (5) of Section 13. In the present case Sections 13(3), 13(4) and 13(5) of the Rent Act are material sections which are reproduced as under:
13(3).–In a suit for eviction on the ground set forth in Clause (a) of Sub-section (1), with or without any of the other grounds referred to in that Sub-section, the Court shall, on the first date of hearing or on any other date the Court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable up to the date of determination:
Provided that While determining the amount under this Sub-section, the Court shall not take into account and amount of rent which was barred by limitation on the date of filing of the suit.
13(4)–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. The tenant shall also continue to deposit in Court or pay to the landlord month by month, the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time not exceeding fifteen days, as may be extended by the Court, at the monthly rate at which the rent was determined by the Court under Sub-section (3).
13(5)–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.
6. Section 13(3)(4) of the Rent Act provides that the Court shall pass the orders for deposit and in case deposit is not made that should be considered as default and under Sub-section (5) of Section 13, the defence is to be struck off.
7. Counsel for the appellant states that the Court is only to see whether the amount stands deposited or not and it shall not make any difference whether it is deposited in the Court, or in the bank account and even if there is a deviation from the order of the Court in depositing the arrears of rent in the Court instead of bank account, such deviation shall not and cannot amount to be considered as ‘default’ under the Act.
8. Per contra counsel for the respondents Shri P.C. Jain vehemently argued that the amount is to be deposited as per the directions of the Court and if the Court had directed that the amount should be deposited in the bank account of the landlord and instead the amount had been deposited in the Court, even though technically it may not amount to default, but the appellant defendant was bound to comply with the orders of the Court and non-compliance of the order in letter and spirit would result in attacking the provisions of Sub-section (5) of Section 13 and, therefore, the order of stricking off the defence is legal and justified.
9. Reliance is placed for such a proposition on a Single Bench judgment of this Court in the case of Rajeev Kumar v. Dr. Kailash Nath Bhargava and Ors. RLR 1990 (2) page 393, wherein in view of the cumbersome provisions of the withdrawal from the treasury of the amount of rent deposited by the tenant is not effective and the landlords are suffering a lot in the process of withdrawal; this Court had held that the judicial notice can be taken of the fact that the difficulties being felt by the landlords in withdrawing the amount and relying on circular No. 27 P1/December 3, 1986 on the subject of simplification of the procedure regarding refund of rent deposited under Sections 13(4) and 19-A(3) of the Rent Act, the procedure was adopted to opt for option from the landlord whether he would like the amount to be deposited in bank account, number of which was to be given by the landlord and such deposit would be without prejudice to the right of the parties concerned. The controversy in Rajiv Kumar’s case was that the landlord had desired the amount to be deposited in the bank account which contention was accepted and the tenant was directed to deposit the amount in the bank account of the landlord. This authority does not say that in case the amount is not deposited in the bank account and it is deposited in the Court contrary to the direction of the trial Court in such situation, the tenant is to be considered as if he is defaulter. Therefore, the facts of this authority are not relevant.
10. Another authority relied upon by the counsel is Ram Sewak v. Munna Lal wherein on the facts of that case and in view of Section 7-C and Section 3(1)(a) of the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in case of refusal by the landlord to accept the rent, the tenant had a right to deposit the rent in the Court and on such deposit the Court was to issue notice to the landlord. The point involved before the Apex Court was to the effect whether rent could be deposited in the Court without showing that the landlord had ever refused to accept the rent and in such situation it was held that the rent so deposited was not a valid tender and an enquiry was required in this case. The suit itself was filed after four years of such deposit in the Court. Facts and points involved in the said authority had no relevancy.
11. This Court in the case of Smt. Kishni Devi v. State of Rajasthan and Ors. had held that the powers and functions are conferred on the statutory authorities by the statute and their statutory functions could not be curtailed by any executive instructions issued by he State Government or any authority. The Registration Act authorised the Sub-Registrar to refuse to register a document, if it is not properly executed or presented or the subject matter of the document lay beyond the territorial jurisdiction of the Registrar or Sub-Registrar, as the case may be, Refusal by Sub-Registrar to register a sale-deed executed by the holder of the General Power of Attorney of vendors on the ground that the inquiry report had not been received from the Secretary of Urban Improvement Trust, would be illegal.
12. On the same analogy counsel for the petitioner submits that any instruction issued by the High Court or directions to the Court below to get the amount of rent deposited in the bank account of the land lord can be a guideline for convenience, but can not over ride the specific provisions under the Rent Act and even if the rent is deposited in the Court instead of the bank account of the land lord it would not amount to default as to warrant to close the evidence under the Act.
13. Reliance is also placed on the decision in the case of M/s. Kailash Industrial Mills v. Shanti Swamp RLW 1980 P. 262 to the effect that the tenant had option to pay rent to the land lord or deposit the same in Court.
14. In the case of Onkar Mal Lakhotia v. Laxmi and Ors. AIR 1983 Delhi 254, it was held that the power to strike off the defence is discretionary and should be only exercised sparingly in extreme cases of contumacious and deliberate default and not in cases of bonafide mistake. One is to look at the conduct of the party before the order of striking off the defence is passed or when the application for striking off the defence is filed or before that and not afterwards.
15. In view of the law laid down and in view of the relanve provisions of the Act and Sections 13(3), 13(4) and 13(5) of the Act, it is no doubt true that it is more convenient for the landlord to received the rent if it is deposited in the bank account of the land lord and the procedure for depositing as well withdrawing the rent deposited in the Court is onerous and cumber-some, but in case the tenant by omission or commission does deposit the rent in the Court despite the orders of the Court to deposit the same in the bank account of the land-lord, such action of the tenant may not be appropriate, but it cannot be said that it amounts to non-deposit of rent as to fall within the definition of default.
16. In view of the above-said discussion and for the reason that the rent stood deposited in the Court, I find merit in the submission made by the learned counsel for the petitioner that there was no default and, therefore, the provisions of Section 13(5) of the Rent Act were not warranted nor attracted and thus the impugned order cannot be sustained in the eyes of law and is quashed and the appeal is allowed.
17. Unfortunately, in the present case the suit of eviction is pending since 1985. This revision petition was kept pending for about 8 years. Both the parties must be suffering and it shall be appropriate in this case to give a direction to the concerned Trial Court to finally conclude the proceedings within one year from the date of receipt of the certified copy of the order. The plaintiff shall endevour to conclude his all evidence within six months and the respondents within four months thereafter. Extension shall not be granted except with express permission of this Court.
18. However, even though the appeal petition is allowed, but the learned counsel for the petitioner has no objection if the amount of rent deposited in the Court is allowed to be withdrawn by the appellant himself and before such withdrawal the petitioner undertakes to, deposit the equivalent rent as deposited in the Court for the period in question in the bank account of the landlord so as to save the landlord of exercise of withdrawing the amount from the Court. This is so accepted by the learned counsel for the respondent also. I order accordingly. The petitioner tenant shall deposit the amount of rent for the period in question which he had deposited in the Court and is lying in the Court, in the bank account of the plaintiff landlord and thereafter shall be at liberty to withdraw the amount deposited by him in the Court.
19. With the above-said observations, the appeal is allowed. Impugned order is set aside. No order as to costs.