N.M. Kasliwal, J.
1. This is a defendant's revision against the order of learned Additional District Judge No. 1, Alwar dated 9-12-1980 up-holding the order of Additional Munsif cum-Judicial Magistrate, Alwar dated 3-10-79, whereby defence of the defendant-petitioner was struck off.
2. Brief facts leading to this revision are that the plaintiff-non-petitioner filed a suit for eviction of two shops situated in Mohalla Shivpura, Alwar against the petitoner on 4-10-75. According to the plaintiff, one shop was let out to the petitioner on 19-2-67 at Rs. 30/- p.m and another shop was let out at Rs. 5/- p.m. on 1-5-67. The suit for eviction was based on the ground of reasonable and bonafide necessity of the plaintiff. The defendant filed his written statement on 24-11-75 and took the plea, inter-aha, that one shop was taken on rent on 19-2-67 and the tenancy of that shop also began from that date. As regards the other shop, it was admitted that the tenancy began from 1-5-67. It was also pleaded that the plaintiff wanted to enhance the rent and the suit was filed with an ulterior motive and the plaintiff had no reasonable and bonafide requirement of the shop. It was also pleaded that both the shops were separate and were taken on rent separately by executing two separate rent notes and as such one suit could not be filed for eviction of both the shops.
3. On the aforesaid pleadings of the parties, the trial court framed the following issues on 17-1-76:
(a) Whether the shops are required reasonably and bonafide by the plaintiff for his own use and occupation ?
(b) Whether the requirement of defendant is greater for the suit shops than that of the plaintiff and passing of an eviction decree will cause greater hardship to the defendant ?
(c) Whether the tenancy has been terminated by a valid notice ?
(d) Whether single suit for the two shops does not lie ?
(e) Relief ?
It may also be mentioned at this stage that though the suit was not initially based for eviction on default in payment of rent, but the trial court on 19-12-75 determined the arreas of rent upto 31-12-75 to the tune of Rs. 225/- as arrears of rent & Rs. 3/- by way of interest, in total Rs 228/-& directed the defendant to deposit the same within 30 days of the order. The plaintiff non-petitioner then moved an application on 28-10-78 before the trial court for amendment of the plaint seeking to add two new grounds for the eviction of the disputed shops on the basis of default in payment of rent and sub-letting, assignment or parting with the possession of the shops. The defendent-petitioner contested the aforesaid application for amendment, but the same was allowed by the trial court. The plaintiff non petitioner thus filed an amended plaint on 30-l-'/9 inserting the additional grounds of default in payment of rent and sub-letting. The petitioner then submitted an amended written statement on 14-2 79 and took the plea that he had already deposited the rent upto 31-3-79. It was also pleaded that the defendent petitioner was himself in possession of the disputed shops and had not sublet, assigned or parted with the shops. On the amended pleadings of the parties, the trial court framed the following two additional issues on 24-3-79:
^^6vk;k izfroknh us nwljh nqdku tks fnukad 19&4&67 dks 15 ekgokj fdjk;s ij yh Fkh tks oknh dh fcuk lgefr o f[kykQ 'krsZ fdjk;snkjh eSleZ txnh'k izlkn egsUnz dqekj dks vlknu] lcysV vFkok ikVZ&fon; dj fn;k A ftldk nkos ij D;k vlj gS A
7 vk;k izfroknh us oknh dks ekg tuojh 1978 ls fdjk;k vnk ugh fd;k A vr% izfroknh fMQkYVj gks pqdk gS A^^
Thereafter, on 25-4-79 the plaintiff moved an application before the trial court for striking out the defence of the petitioner against eviction on the ground that the petitioner had not deposited the rent in time and had also not deposited the rent from the month of January, 1978. The defendant-petitioner replied to the aforesaid application on 21-1-79 and took the plea that he had deposited rent in the court upto June, 1979, as such no rent was due against him. However, by way of abundant caution the defendant also moved any application before the trial court on 2 7-79 for seeking permission of the trial court to deposit the rent for 3 months i. e April, May and June, 1979 on the ground that he had fallen ill and in the month of June, the court was closed for summer vacations. The learned trial court found that the rents for the months of April, May and June, 1979 were deposited on 2-7-79 and as the rent for the month of April, 1979 ought to have been deposited latest by 15th of May, 1979 and since that has not been done, so the delay in depositing the rent cannot be condoned and the defence of the petitioner was liable to be struck off. The appeal filed by the petitioner was also dismissed by the learned Additional District Judge No. 1, Alwar.
4. It was contended by the learned Counsel for the petitioner that originally the suit was not based on default in payment of rent and no issue was framed with regard to default in payment of rent, the order passed by the trial court on 19-12-75 determining the amount of Rs. 228/- was without jurisdiction, illegal and non est According to the plaintiff himself, he took the plea of default in payment of rent by seeking amendment in the plaint, which was allowed by the tria1 court on 30-1-79. Thereafter, there was no order of the trial court determining the rent under Section 13(3) of the Rajas-than Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act). It was thus contended that there was no question of striking off the defence against eviction when the rent was not determined under Section 13(3) of the Act and the plaintiff cannot take any benefit of an order passed without jurisdiction on 19-12-75. It was also argued that the petitioner had sought time to deposit 3 months rent for the months of April, May and June 1979 on 2-7-79 out of abundant caution and the amount was also deposited on 2-7-79. Both the courts below having not considered the ground of illness of the petitioner, otherwise the petitioner was entitled to deposit the rents of 3 months on 2-7-79 As regards the month of April, 79 it was contended that the tenancy of the shop began from 19th of each month and its rent fell due on 18th May and could have been paid by 3rd of June and as the trial court was closed for summer vacation on 3rd June, the rent could have been paid on 2nd day of July, 1979, which was the opening day of the court after summer vacation.
5. On the other hand, it was contended by the learned Counsel for the plaintiff-non-petitioner that there was no question of commencement of tenancy on 19th of the month as alleged by the defendant. The defendant himself in memo of appeal before the first appellate court had admitted that the rent for the month of April, 1979 was to be deposited by 15th of May, 1979 which he could not deposit due to his illness. Even if the ground of illness taken by the defendant is taken to be correct, the maximum period for depositing the rent for the month of April, 1979 could have been extended upto 30th May, 1979 and as the summer vacations had not started on that day, there was no question of extension of time upto 2-7-79. It was submitted that the rent was paid by the defendant of both the shops according to first and last day of English calender month and the trial court had also determined the amount on 19-12-75 by treating the monthly rent payable according to English calender month and as such there was no question of payment of rent for the month of April, 1979 of one shop till 3rd June, 1972 as contended by the petitioner. It was further contended in this regard that in any case, admittedly the rent of another shop for the month of April, 1979 had become due on 30th April, 1979 and ought to have been deposited by 15-5-1979 and even the court could not have extended the period beyond 30th May, 1979. It was also argued that the trial court had determined the rent on 19-12-75 and thereafter the defendant was depositing the rent month by month and as such there was no necessity to determine the rent subsequently after the ground of default in payment of rent was taken in the plaint by way of amendment. It was also argued that the ground, that no order under Section 13(3) of the Act was passed after introducing the ground of default in the plaint, was not taken in either of the courts below and as such this ground cannot be raised for the first time in revision before this Court.
6. I have given my careful consideration to the arguments advanced by learned Counsel for both the parties. The courts below have struck off the defence against eviction only on the ground of rent for the month of April, 1979 being not paid in time. According to the lower courts, the rent for the month of April. 1979 had fallen due on 30th April, 1979 and was to be deposited on or before 15-5-79. As the maximum period which could have been allowed for depositing the aforesaid amount could have been upto 30th May, 1979 and the court having not closed on that day, the extension could not have been allowed upto 2-7-79 and obviously, the rent paid on that date was not within time. As regards the contention of the learned Counsel for the petitioner that the tenancy of one shop commenced from 19th of every month and as such the rent of this shop for the month of April, 79 could have been deposited upto 3rd June, 1979, I find no force From a perusal of the conduct of the parties, it appears that though the tenancy of one shop commenced from 19th but subsequently the rent was paid according to first and the last date of the English calender month. The petitioner himself in para No. 6 of his memo of appeal before the first appellate court had admitted that the rent for the month of April, 1979 was to be deposited on or before 15-5-79 but he could not deposit the same due to his illness. Thus there is a clear admission of the petitioner for deposit ing the rent for the month of April, 1979 on or before 15-5-79 and apart from that the aforesaid contention relates to one shop only and the defendant was bound to pay the rent for both the shops.
7. The contention of the learned Counsel for the petitioner that no order was passed by the trial court under Section 13(3) of the Act after introducing the ground of default in payment of rent by way of amendment in the plaint, deserves consideration. The admitted facts of the case in this regard are that originally the suit was filed on 4-10-7 5 in which no ground for eviction was taken on the basis of default in payment of rent. Naturally no issue was struck with regard to the above point when issues were framed on 17-1-76. The order for determining the amount of rent to be deposited in the court or paid to the land-lord by the tenant could only have been passed where a suit for eviction was based on the ground set-forth in Clause (a) of Sub-section (1) of Section 13 of the Act, which laid down that the tenant had neither paid nor tendered the amount due from him for 6 months. Admittedly on 4-10-75 neither the rent was due for 6 months nor the case was brought on that ground. The order thus passed on 19-12-75 determining the arrears of rent to the tune of Rs. 228/- could not have been passed and any direction given by the court on that date cannot be treated to be an order passed under Section 13(3) of the Act. The amendment inserting the additional ground of default in payment of rent was allowed on 30-1-79 and the issue with regard to default in payment of rent was also framed on 24 3-79 and admittedly no order was passed by the trial court under Section 13 (3) of the Act thereafter. A court assumes jurisdiction to determine the amount of rent to be deposited in court or paid to the land-lord by tenant under Sub-section (3) of Section 13 of the Act only when a suit for eviction is based on the ground set forth in Clause (a) Sub-section (1) of Section 13 of the Act. The order thus passed on 19-12-75 cannot go to the benefit of the plaintiff land lord. The defence against eviction under Sub-section (3) of the Act could only be struck out where a tenant fails to deposit or to pay any amount referred to in Sub-section (4) on the date or within the time specified therein. Sub-section (4) itself lays down that the tenant shall deposit in court or pay to the land-lord the amount determined under Sub-section (3) within 15 days from the date of such determination or within such further time, not exceeding 3 months, as may be extended by the court. It is further provided that the tenant shall also continue to deposit in court or pay to the land-lord, month by month the monthly rent subsequent to the period upto which determination has been made, by the 15th of each succeeding month or within such further time, not exceeding 15 days, as may be extended by the court, at the monthly rate at which the rent was determined by the court in Sub-section (3). Thus while considering the entire scheme of Section 13, it would be char that the determination of the rent under Sub-section (3) can only be made when a suit is based on the ground set forth in Clause (a) of Sub-section (I) of Section 13 and Section 13(4) will come into operation only when the rent is determined under Sub-section (3) and the question of striking out the defence against eviction would only arise when tenant fails to deposit or pay any amount referred to in Sub-section (4). Thus the determination of rent under Sub-section (3) of Section 13 is a sine qua non before taking any action against a tenant for striking out his defence against eviction. The provision regarding striking out defence against eviction of tenant is a penal provision and it is incumbent on the plaintiff land-lord to show that an order has been passed legally in his favour under Sub-section (3) of Section 13 of the Act. As already observed above, no such order was passed in the present case after the default in pa>ment of rent was made a ground of eviction, I am clearly of the opinion that no order striking out the defence could have been passed in the present case. The trial court had no jurisdiction to pass any order under Sub-section (3) of Section 13 on 19-12-75 and any order passed on on that date cannot be deemed to have been passed under any provision of law.
8. Mr. Gupta, learned Counsel for the plaintiff non-petitioner vehemently contended that the above ground cannot be raised for the first time in revision as the same was not raised in the courts below. In this regard he placed reliance on Mst. Sardar Begum v. Jagdish Chand Bhandari AIR 1967 Del. 61, Mahadeo v. Hanumanmal and Ors. , A. Somu Achari v. R. Rajamanickam : AIR1973Mad350 , Baldevdas Shivlal and Anr. v. Filmistan Distributors (India) Pvt. Ltd. and Ors. : 1SCR435 .
9. On the other hand, it was contended by the learned Counsel for the petitioner that the question raised was purely a question of law, which went to the root of the case and related to the exercise of jurisdiction of the trial court and this Court is entitled under Section 115 C.P.C. to allow the petitioner to raise this ground even though it was not raised in the courts below. Reliance is placed on Jagdish Prasad v. Kapoor Chand 1977 RLW 479, (5) Nathubhai Gulabdas v. Bhakhibhai Muljibhai : AIR1963Guj305 , (6) Union of India v. Mohinder Singh and Ors. : AIR1979All342 , (7) K. Ramanujam Chettiar v. Arunachaleswarar Devastanam and Anr. : AIR1978Mad395 and (8) Prakash Chander v. Smt. Sunder Bai and Anr. (9).
10. I do not consider it necessary to deal all the above authorities in detail. As the question of allowing a party to raise any ground for the first time in revision depends on the facts and circumstances of each individual case. Sen. J., (as he then was) in Jagdish Prasad v. Kapoor Chand (5) laid down as under:
In one sense the jurisdiction under Section 115 C.P.C. is wider than even the jurisdiction of an appellate court . It follows therefore that a . court of revision would have all the powers of appellate court except that the conditions of interference would have to be in accordance with the relevant statutory provision i e. Section 115 of the Code of Civil Procedure.
In the above authority, it is clearly laid down that in one sense the jurisdiction under Section 115 C.P.C. was wider than even the jurisdiction of an appellate court, except that the conditions of interference would have to be in accordance with the provisions of Section 115 of the Code of Civil Procedure.
11. Mr. M.C. Jain, J. also laid down in Prakash Chander v. Smt. Sunder Bai and Anr. (9) as under:
It may be stated that there is no hard and fast or an inflexible rule that if the point has not urged in the courts below, that point may not be allowed to be raised for the first time in revision petition, as the remedy by way of revision is discretionary and not a matter of right, the court may, looking into the facts and circumstances of each case allow any point to be raised for the first time in the revision petition. Looking to the importance of the question regarding non-compliance of Order 9, Rule 19A the disrcetion needs to be exercised in favour of the petitioner and it would be proper to allow the petitioner to raise this point in this revision petition.
12. In Mahadeo v. Manumanmal and Ors. (2) CM. Lodha, J. (as he then was) in para 19 of the report observed as under:
The next contention raised by the learned Counsel for the petitioner is that a decree has been passed by the trial court with respect to the property which was neither the subject matter of plaint, nor mentioned in the written statement by the defendant Baboolal. Sufficient to say that no such objection was taken at any stage of the litigation so far. This objection is not contained even in the memorandum of appeal, and during the course of arguments the learned Counsel for the petitioner verbally sought leave to urge this ground. I do not, however, consider it proper to allow this ground to be raised in revision at such a late stage, specially when it is being vehemently opposed by the learned Counsel for the respondent. This objection also, therefore, does not hold any water and is to be stated only to be rejected.
In the above case it was not held that the High Court has no power under Section 115 C P.C. to allow a ground to be raised for the first time in revision. On the contrary learned Judge in the case before him did not consider it proper to allow the ground to be raised in revision at a late stage specially when it was being vehemently opposed by the learned Counsel for the other side. The above observations thus show that in a proper case the ground can be allowed to be raised by the court in exercise of its revisional jurisdiction. In Baldevadas Shivlal and Anr. v. Filmistan Distributors (India) Pvt. Ltd. and Ors. (4), their Lordship of the Supreme Court were considering an order of High Court recording a finding that the agreement dated November 27th, 1954 created a lease and that the consent decree operated as res judicata. The Supreme Court held that a matter in contest in a suit may operate as res judicata, if there is adjudication by the court. It was for the trial court in the first instance to decide that question and thereafter the High Court could, if the matter was brought before it by way of appeal or in exercise of its revisional jurisdiction for deciding that question. In this view of the matter, it was held that the High Court had no jurisdiction to record any finding on the issue of res-judicata in revision application filed against an order refusing to uphold an objection to certain questions asked to a witness under examination. The above authority thus lends no assistance to the arguments of Mr. Gupta learned Counsel for the plaintiff-non-petitioner on the point in controversy before me.
13. In the facts and circumstances of the case before me, the question sought to be raised by the petitioner in this revision goes to the very root of the matter and relates to a pure question of law on the admitted facts of the parties. The question whether the defence against eviction can be struck out or not, was very much in controversy before the two courts below also and the order is attacked now in this Court, though for the first time on the ground that the trial Court had no jurisdiction to pass an order under Sub-section (3) of Section 13 on 19-12-75 and as such the impugned order striking out the defence against eviction is also without jurisdiction. Under these circumstances, it is a fit case for allowing this ground to be raised for the first time in revision before this Court.
14. In the result, this revision is allowed. The orders of both the courts below are set aside and the application filed by the plaintiff-non-petitioner for striking out the defence against eviction of the defendant petitioner, is dismissed.
15. In the facts and circumstances of the case, parties shall bear their own costs.