JUDGMENT
Rajesh Balia, J.
1. This is defendant’s second appeal against the judgment and decre dated December 7, 1993, passed by the Civil Judge No. 3 Udaipur dismissing the appeal against the judgment and decree passed by the Munsif and Judicial Magistrate, Udaipur City (North), dated November 23, 1987.
2. The plaintiff-respondent had filed a suit for eviction against the appellant interalia on the ground of default a second time. Both the courts below found the defendant to have committed default in payment of rent to the landlord for a period of more than six months on the date of filing of the suit and decreed the eviction of the appellant.
3. It was first contended by the learned Counsel for the appellant that the petitioner-appellant has tendered rent from time to time to the landlord and therefore, he cannot be treated as defaulter because one cannot be considered as defaulter merely on the ground that the rent is not paid but it is also to be established that the amount has not been tendered by the tenant to the landlord. So far as this question is concerned, the fact of tender made by the defendant has not believed by both the courts below and it being a finding of fact, cannot be interfered with in this second appeal. This is also not seriously disputed by the appellant.
4. The next contention of the learned Counsel for the appellant is that the finding of the two courts below is vitiated because the plaintiff has wrongly averred in the plaint that the defendant has not paid rent from November 1978 to February 1981 whereas in fact the appellant has paid the rent upto March 1979 and thereafter tendered the ernt for April 1979 through Money Order. However, there is no dispute now that after 1979 no amount was tendered or paid to the plaintiff.
5. So far as the ground of default is concerned, the aforesaid facts even assumed to be correct, makes no difference in as much as even if it be held that the defendant had paid or tendered rent up to April 1979, admittedly no rent was paid or tendered from April 1979 to the date of filing of the suit (March 5, 1981) that is to say on the date of filing of the suit, the defendant has failed to pay or tender rent for a period of more than six months. Therefore, this contention of the learned Counsel has no effect on the finding that the defendant has committed default in payment of rent rendering him liable to eviction in terms of Section 13(1)(a) of the Rent Control Act.
6. It was next contended by the learned Counsel for the appellant that in terms of the Civil Courts Ordinance as amended, appeal against the order of the Munsif lay to the District Judge and Civil Judge has no jurisdiction to hear and decide the appeal against the order of the Munsif, I find no force in this contention. It is not disputed that appeal was filed before the District Judge, Udaipur. It was after the appeal was registered at District Court Udaipur that it was transferred Under Section 24 of the Code of Civil Procedure to the Civil Judge for its decision. It is not a case where appeal was preferred before the Civil Judge and the Civil Civil Judge entertained the appeal. The Rajasthan Courts Ordinance does not control the provisions of the Code of Civil Procedure under which the District Judge enjoys independent power of transferring any case pending before it to a Court subordinate to it for its decision. The Civil Judge is not incompetent to decide the appeal against any order made by a court inferior to it on transfer being made to it by the District Judge Under Section 24. Therefore, this contention of the learned Counsel for the appellant cannot be accepted.
7. I am fortified in my aforesaid view by a decision of this Court in S.B. Civil Revision Petition No. 602/92 Sunder Lal v. Laxmi Lal decided on December 18, 1992.
8. No other point has been raised.
9. I, therefore, find no force in this appeal and the same is hereby dismissed with no order as to costs.
10. The learned Counsel for the appellant lastly urged that as the appellant is carrying on business in the suit shop for about 25 years, he may be given reasonable time to surrender the vacant possession of the suit premises.
11. Keeping in view the facts and circumstances of the case, it is ordered that the decree for eviction against the appellant shall not be executed until December 31, 1994 provided that the appellant furnishes an undertaking within one month that he shall surrender the vacant possession of the suit shop in favour of the plaintiff on or before December 31, 1994 and shall not part with its possession in favour of any one else in any manner and shall further continue to pay mesne profits @ Rs. 40/-P.M. for its use and occupation until the vacant possession of the same is surrendered, every month by 10th of every month.