C.M. Lodha, J.
1. This is a defendant-tenant's second appeal arising out of a suit for ejectment in respect of a portion of a house situated in the city of Ajmer.
2. The suit was based on three grounds:--
(i) default in payment of rent for theperiod 13-1-1968 to 31-12-1968;
(ii) material alterations having been made in the suit premises by the defendants without permission of the landlord; and
(iii) sub-letting a part of the premises by the tenant without the consent of the plaintiff.
3. It may be stated here that the plaintiff had previously filed a suit for ejectment in respect of the suit premises against the defendant which was registered as Civil Suit No. 270 of 1964: That suit for ejectment was also based on default of payment of rent. On the introduction of Section 13-A in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (which will hereinafter be referred to as 'the Act'), the defendant deposited the arrears of rent along with interest and costs of the suit so that the suit for ejectment was dismissed. The plaintiff's case is that after having taken benefit of Section 13-A of the Act in the previous suit the defendant again committed default in payment of rent for more than six months, and, therefore, he was liable to be ejected. As already stated above he relied on two more grounds for ejectment viz. material alterations by the tenant in the premises and sub-letting by him, but both these grounds have been repelled by the courts below and none of them has been relied upon before me. The only short question, therefore, for my decision is whether the decree for eject-ment granted by the courts below on the ground of default in payment of rent is sustainable?
4. The defendant's case is that he tendered the amount of rent due from him to the plaintiff personally as well as by money order but the plaintiff did not accept the same. The question of oral tender has not been substantiated and it is only tender by money order which has been relied upon by the appellant. The relevant documentary evidence in this connection consists of the money order receipt issued by the Post Office dated 19-3-1968 for Rs. 48/- only and the money order coupon Ex. A.16. It appears from Ex. A.16 that the name of the payee has been mentioned as Bhanwar Lal Goyal. In the space for message it has been mentioned that two months' rent for the months of February and March 1968 Rs. 48/- is being remitted. There is a further endorsement on Ex. A. 16 that the money order was refused on 22-3-1968. The contention on behalf of the defendant-appellant is that since the landlord had declined to accept the rent for two months remitted by money order Ex. A. 16, he was not bound to send rent every month thereafter, and repeat this useless formality. It is contended that the Act of the tenant in sending the rent for two months February and March 1968 clearly indicates readiness and willingness on his part to pay the rent and therefore it cannot be said that the ten-ant had not tendered the amount of rent due from him.
5. On the other hand the contention raised on behalf of the respondent is that even though the rent for the month of January 1968 had fallen due the same was not remitted and the rent for the month of March was sent in advance which the plaintiff was not bound to accept. It is thus submitted that there was no valid tender. In the alternative, it is submitted that even though the plaintiff did not accept the rent sent by money, order Ex, A.16, it was imperative for the tenant to have deposited the rent fallen due in the court under Section 19-A of the Act. It has also been contended that thereis no evidence on the record that the rent was offerred to and refused by the plaintiff.
6. D. W. 1 Sobhraj has stated that he had sent the money order to the plaintiff at his usual address namely Hindu Modi Mohalla, Ajmer, and that the coupon Ex. A. 16 was written by him. On the other hand the plaintiff P. W. 1 Bhariwar Lal has stated that he cannot say whether the money order corresponding to the receipt Ex. A.14 was brought at his house or not. Under Section 114 of the Evidence Act the Court may presume that the common course of business has been followed in particular cases (Illustration (F)). In the present ease the money order has been remitted for delivery to the addressee residing in the same town. The correctness of the address at which the money order was remitted as stated by D. W. 1 Sobhraj has no been denied by the plaintiff. In such circumstances it would be reasonable to presume in the absence of any evidence to contrary that the money order was tendered in the ordinary course to the addressee. The money order coupon bears the endorsement 'refused'. If would, therefore, be not unreasonable in the circumstances of the case also to presume that the money order Ex. A. 16 was tendered to the plaintiff and he did not accept the same. It is significant that he has not specifically stated that he did not refuse Ex. A. 16. His reply on the point is evasive inasmuch as he states that he does not know whether the money order was brought to his place or not. It is not his case that on 22-3-1968 which is the date mentioned of refusal, he was not at his house. I, therefore, find myself in agreement with the court below that the money order Ex. A.16 was refused by the plaintiff.
7. Now the question is what is the effect of this refusal? Admittedly the rent due from the defendant was from 13-1-1968 as alleged in para 2 of the plaint. Consequently, two months' rent had fallen due on 19-3-1968 when the money order in question was remitted, i.e. from 13-1-1968 to 12-2-1968 and from 13-2-1968 to 12-3-1968. These two months covered part of January 1968, whole of February 1968 and a part of March 1968, but the defendant did not specify the period in detail in the money order coupon and merely mentioned 'Two months -- February and March.' The argument advanced on behalf of the respondent that the rent for January 1968 had not been remitted at all but that the rent for the month of March 1968 had been remitted in advance is, in my opinion, devoid of force. It should have been clear to the plaintiff that the rent was for two months for the period which had elapsed. I am unable to accept the respondent's contention that the rent for the month of January 1968 had not been remitted at all and the rent for the month of March 1968 had been sent in advance. In my opinion, this money order covered the period of two months from 13-1-1968 to 12-3-1968, which fact is obviousby the method of calculation adopted by both the parties after the decision of the previous suit. There is, therefore, no substance in the respondent's contention that there was no valid tender by the money order Ex. A.16.
8. The next important question that arises is whether the defendant must be treated as a defaulter for not having remitted the rent month to month after 13-3-1968 upto 31-12-1968. Section 13(3) of the Act provides that for the purpose of clause (a) of Sub -section (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has remitted such amount to the landlord by postal money order, at his ordinary address. By virtue of this provision the tenant shall be deemed to have tendered the amount of rent due from him in time.
9. In Babu Ram v. Narayan Dass, 1959 Raj LW 81 it was held that once it is established that the rent was tendered to the landlord by the money order and the landlord refused the same it was not necessary for the tenant to make useless offer subsequently and send the rent to the landlord by money order. This view was followed by another Single Bench of this Court in Shiv Shanker v. Sanwal Singh, 1963 Raj LW 105. Thereafter Section 19-A was introduced in the Act on 9th June, 1965. In Jagdish Kumar v. Roopchand, 1970 Raj LW 315 Jagat Narayan, J., observed that 'it was to nullify the effect of the aforesaid ruling that Section 19-A was introduced.' It was held that if the landlord refuses to accept rent when it is tendered to him either personally or by money order, then it is the duty of the tenant to deposit the rent in court. The aforesaid three rulings came up for consideration before the Full Bench in Martin & Harris (Pvt.) Ltd. v. Prem Chand, 1974 Raj LW 115 = (AIR 1974 Raj 136) (FB).
10. One of the questions referred to the Full Bench was
'whether under Section 19-A of the Act it is necessary for the tenant every time before making a deposit of rent in court to tender the same to the landlord and to have his refusal or once the landlord has refused the tender of rent, then for every subsequent deposit in court the tenant will not be required to first tender the rent to the landlord and have it refused. In other words, which of the two cases namely 1959 Raj LW 81 or 1970 Raj LW 315 lays down the correct law?' The answer to this question has been returned by the Full Bench in the following words :--
'Section 19-A of the Act requires that every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by fifteenth day of the month next following the month for which it is payable and where the landlord does not accept the rent tendered to him within the time aforesaid the tenant may deposit such rent with the court. It is not necessary that on each subsequent occasion he should first tender therent to the landlord and obtain his refusal and thereafter deposit the rent in court.'
11. The point for decision before their Lordships was whether it is necessary for the tenant before making a deposit of rent under Section 19-A to tender the same to the landlord when the landlord has refused it once? The point involved in the present case is however a bit different. Here the question is whether it is obligatory on the tenant to make the deposit of rent as provided under Section 19-A after the landlord has refused to accept the rent once? No doubt in view of the Full Bench case the tenant need not tender the rent every time after it has been refused once, but the question is whether immunity from tendering the rent also absolves the tenant from depositing the rent in court as provided under Section 19-A (2) of the Act. In order to appreciate the point I may reproduce here Section 19-A (1) and (2) for ready reference :--
'19-A-- Deposit of rent by tenant:--
(1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable.
(2) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Sub-section (1) or where there is bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the court and such deposit of rent shall be a full discharge of the tenant from the liability to pay rent to the landlord.'
12. The Full Bench has observed,
'These provisions (Section 19-A) as we read them, provide a machinery to immunise a tenant from being labelled as a defaulter if despite the tenant's tender the landlord refused to accept rent. The deposit of rent is not only notified to the landlord personally but is also published by its being fixed on the notice board. The landlord may, if he chooses, withdraw such rent. The payment to the Court by fiction of the law would mean payment to the landlord so far as the tenant's liability for rent is concerned.'
13. From the above observations made by the Full Bench it appears that their Lordships' view was that in order to obtain immunity from being ejected as a defaulter despite the refusal by the landlord to accept the rent, the tenant must make the deposit under Section 19-A. Under Sub-section (5) of Section 19-A a notice is sent to the landlord to receive the rent so deposited by the tenant and this has been held by the Full Bench as 'again an offer to the landlord, by tenant through the court to receive the rent.' The Full Bench goes on to observe that
'thus each deposit in Court and a notice thereof to the landlord would imply a tender enabling the landlord to ask the tenant topay the rent directly. The landlord is thus given repeated options to ask for the rent directly, if he so wishes.'
It further appears to me that Section J9-A was introduced with a view to avoid dispute between the landlord and the tenant regarding tender and non-acceptance of rent by the landlord. Consequently, there is no escape from the conclusion that if the tenant wants to escape from the liability of being ejected on; the ground of rent having not been paid or tendered for six months he must make the deposit as provided under Section 19-A even though the tender of rent by the tenant to the landlord has been refused once. If he does not do so and rests content by merely tendering the rent once which has been refused by the landlord he shall be deemed to have committed default in payment of rent due, and if such arrears mount for sis months or more it would certainly become a ground for the landlord to seek ejectment on that basis. In the present case the tenant admittedly did not make deposit of rent as required by Section 19-A and has thereby committed default in respect of the amount of rent due from him for more than six months and is therefore liable to be ejected.
14. Another point urged by the learned counsel for the appellant is that proviso to Section 13 (7) cannot apply in the present case inasmuch as it is not proved that the appellant had committed default previously. It is true that in the previous suit no enquiry was held into the allegation of default because the appellant had applied under Section 13-A of the Act within the time prescribed therein and consequently the suit for ejectment was dismissed without holding any enquiry into the allegations made by the parties. The proviso however makes it clear that a tenant shall not be entitled to any relief under this sub-section (Sub-section (7)), if having obtained such benefit or benefit under Section 13-A in respect of any such accommodation, he again makes a default in the payment of rent of that accommodation for six months. It is not the requirement of law that there must be a finding as to the previous default. What is required is that the tenant must have obtained the benefit under Section 13-A. That the appellant has admittedly done previously. As already held above he has again made a default in the payment of rent for more than six months and consequently he cannot save himself from ejectment by making deposit under Section 13 (4).
15. The last point urged by the learned counsel is that the notice of ejectment served by the landlord was invalid inasmuch as it did not expire with the end of the month of tenancy. Admittedly the date of commencement of the tenancy was first of calendar month and the tenancy has been terminated by notice Ex. 2 by the end of the calendar month. The contention of the learned counsel for the appellant is that sincethe mode of payment was changed from first of the calendar month to 13th on account of the decree in the previous suit the month of the tenancy should also be deemed to have been changed. This argument is not correct. It is not the case of either of the parties that there was alteration of the month of the tenancy either by the agreement of the parties or by operation of law. Apart from that there is a clear condition in the notice that the tenancy may be considered to have been terminated on such other date as the tenancy month expires according to the tenant. This clause, in my opinion, remedies the defect, if any, though according to me there is none.
16. The result of the foregoing discussion is that this appeal has no force and is hereby dismissed, but in the circumstances of the case the parties are left to bear their own costs.
17. Learned counsel for the appellant prays for leave to appeal under Section 18 (2) of the Rajasthan High Court Ordinance. The prayer is refused.