Kan Singh, J.
1. This is a defendant's revision application and arises out of an order of the Munsif, Jaipur West dated 29.8.72 striking out the defence of the defendant in a suit for eviction from certain premises.
2. The suit premises are a portion of a house known as Khinduka Bhawan which comprised of two portions on the ground floor. One portion was taken by the defendant-appellant on a monthly rent of Rs 200/- by a registered lease by deed dated 1.8.63 Subsequently on 1.6.66 the other portion was taken on rent by the defendant at Rs. 180/- per month. This was exclusive of house tax, water and electricity charges. The plaintiff filed a suit for arrears of rent and aviction in respect of the portion taken on tent on 1.8.63 in the court of the learned Munsif if on 26.5.71. Subsequently on 6.7.72 the present suit was filed for the second portion It was averred that the defendant had paid the rent upto 31.7.69 but had thereafter made an application under Section 19A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, hereinafter to be referred as the 'Act', with a view to harass the landlord he then starred depositing the rent court. The plaintiff gave a notice to the defendant on 11.3.72 determing the tenancy from 31.3.72. The plaintiff, inter alia, averred that the rent for the period from 1.8.71 to 31.3.72 was in arrears.
3. The defendant contested the suit. He denied that the rent was in ears. He pleaded that the tenancy was an integrated one in respect of both the portions of the house and after the filing of the suit regarding the first portion on 28.5.71 the rent was being deposited in court for both the portions in the first suit No.413 of 1971. The defendant, therefore, claimed that the plaintiff was not entitled to evict the defendant on the ground of default. The defendant made an application on 12.4.72 under Section 13(5) of the Act raising a dispute about the payability of rent and requested the court to determine the same. On 4 8.72 the plaintiff moved an application for striking out the defence as the defendant had failed to make a deposit of the rent on the first date of hearing as required by subsection (4) of Section 13 of the Act. The defendant had also moved an application under Section 10 of the Code of Civil Procedure for staying the present suit on the ground that the issue regarding there being one integrated tenancy in respect of both the portions of the premises was common in the two suits and consequently the present suit which was filed subsequently be stayed.
4. Learned Munsif passed a common order rejecting the defendant's application for staying the suit as also for striking out the defence of the defendant. The learned Munsif held that the payment of rent in another suit though in the same court was not a valid discharge of the liability to pay rent.
5. Aggrieved by this order the defendant went up in appeal to the court of the learned District Judge, Jaipur City, Jaipur, but the learned District Judge dismissed the appeal.
6. It is in these circumstances that the defendant has come in revision to this Court.
7. It will be observed that the order under challenge is a composite one disposing of two distinct matters, one regarding the application for stay of the suit under Section 10 Civil Procedure Code and the other regarding the striking out of the defence on account of the non-payment of the rent in this suit on the first date of hearing.
8. Learned Counsel for the respondent has raised a preliminary objection regarding the maintainability of the revision application concerning the order refusing to stay the proceedings in the suit. Learned Counsel submitted that the order under Section 10 Civil Procedure Code was not appealable and, therefore, the appeal against that order to the District Court was mis-conceived. The order of the learned Munsif is dated 29.8.72 and as the present revision was filed on 2.3.73 the same would be barred by time even if it were held that the revision be taken to be directed against the order of the learned Munsif. The contention is irresistible. No appeal lies against an order passed on an application under Section 10 Civil Procedure Code for staying a suit on the ground of certain issues in the suit being identical with the issues in an earlier suit. In the circumstances it was for the defendant to have approached this Court in revision within time. The order of the learned Munsif, therefore, cannot be interfered with so far as the learned Munsif has refused to stay the proceedings in the suit.
9. Now, I may deal with the question whether the learned Munsif was justified in striking out the defence of the defendant under Section 13(6) of the Act. In dealing with this question the learned Munsif, inter alia, observed' 'when this present suit was instituted for the back portion, the defendant might have deposited all dues and arrears with respect to the suit property in order to save himself from the rigorous consequences of the mandatory legal provisions contained in Section 13(6) of the Rent Control Act. He cannot be absolved from the liabilities on the pretext for which there is no reasonable and valid around to think that both the premises are part of the same tenancy. Learned Advocate lor the plaintiff besides other authorities relied on A.I.R. 1965 S.C. 1910 with gain. It is true that the amount required to be deposited may be the amount for which the parties may have entered into contract but the manner and mode in which the deposit is required to be made in the court are the result of the statutory provision and it is in this sense that they constitute a statutory obligation. According to counsel for the plaintiff the unnecessary deposits of rent in earlier suit with regard to the premises involved in this suit is a malafide act on the part of the defendant. He attempts to show that it was a common tenancy so that the plaintiff is turned out of the court. But the attempt is futile and baseless one.
10. From the above passage it will be clear that the learned Munsif thought that since the deposit of the rent in respect of the portion which was the subject matter of the present suit being made in the earlier suit was of no consequence & therefore the defence was 10 be struck out and for this the learned Munsif relied on AIR 1965 S.C. 1910, The learned District Judge in agreeing with the learned Munsif went on to say that even if he were to proceed on the basts that the entire rent of both the premises was paid under Section 19A he could not uphold the contention that nothing was due on the first date of hearing because the payments were not capable of discharging the liability under Section 19D. It is the correctness of the view taken by the courts below that falls to be considered.
11. Both the learned Counsel are on common ground that the rent for both the portions was being paid in court in the earlier suit. The rent for Feb, March & April, 1971 had been paid on 16.5.71 & that for May,June & July, 1971 had been paid on 14-8-71. The present suit was filed on 6.7.72. Subsequently the rent was being paid before the 15th of the following month in court in the earlier suit, As a matter of fact, the only controversy that is raised is that the payment of the rent in court in the earlier suit will not avert the consequences of non-compliance with the provisions of Sub-section(4) of Section 13 of the Act. It is further remarkable that on the first date of hearing in this suit the defendant had moved an application under Sub-section (4) of Section 13 of the Act drawing attention to the earlier payments.
12. I may straightway proceed to consider the Supreme Court case, Kaluram v. Baidyanath : 3SCR34 on which the courts below have relied. The provisions that came up for consideration in that case were in some respects, analogous to the relevant provisions of the Rajasthan Act. Section 19A of the Rajasthan Act corresponds to Section 21 of the West Bangal Act and subSection (4) and (5) of Section 13 correspond to the provisions of Section 17 of the West Bengal Act. There is, however one difference that under the West Bengal Act the deposit under Section 21 of that Act is made before a Rent Controller, but a deposit under the Rajasthan Act is made before a court. In that case the tenant went on making deposits before a Rent Controller till after the filing of the suit, but he did not make any deposit in the court in which the suit was filed, on the first date of hearing. It is in this context that their Lordships observed as follows:
When a landlord institutes a suit to recover possession of the premises let to his tenant on any of the grounds referred to in Section 13, the tenant is required to deposit the amount in Court as provided by Section 17(l). The first part of Section 17(l) enables the tenant who has committed a default in the payment of rent prior to the institution of the suit to make up for that default and pay the defaulted amount as specified by this sub-section. But the tenant must pay interest on the defaulted amount calculated in the manner prescribed by it. As to the amount payable in future pending the suit or proceeding according to Section 17(1) the tenant must thereafter continue to deposit or pay, month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate. Whatever may be the cause on which the landlord's claim for eviction is based, under Section 17(1), subject to the provisions of Sub-section (2) within one month of the service of the writ of summons on him, the tenant has to deposit in Court the amount in the manner prescribed by it. If he fails to comply. Section 17(3) steps in and enables the landlord to claim that the defence of the tenant against delivery of possession should be struck out.
Then their Lordships further added that the Rent Controller is not Court within the meaning of Section 17(1). Though under Sections 21 and 22 a tenant may deposit rent with the Controller as soon as a suit is brought against him by the landlord, Section 17 being a special provision comes into operation and it must prevail in cases covered by it.
13. Now, there is a distinguishing feature, as already observed, under the Rajasthan Act. The rent is deposited under Section 19A of the Act in a court. The term 'Court' is defined under Section 19A and a Court with respect to any local area means any civil court which may be specially authorised by the State Government by notification in this behalf, or where no civil court is so authorised: (i) the court of the Munsif, and (ii) the court of the Civil Judge, where there is no court of Munsif having jurisdiction over the area. Where the Government designates a court for the purposes of Section 19A and if it is a court different from the court in which the suit is filed some difficulty might arise, but in a case where the suit is filed in the very court in which the rent is being deposited under Section 19A of the Act, then such a deposit in court, if otherwise valid, would be deemed to be a deposit in court for the purposes of the suit as well. If this were not so, then the tenant will be required to withdraw the amount from that very court and then re-deposit it then and there so that it may amount to a deposit on the first date of hearing. Such an empty ritual could not have been intended by the legislature. Here the question is that in order to comply with the requirement that the rent has to be deposited in the suit the defendant started depositing the rent for both the portions of the premises in that suit. This is certainly a deposit in court even for the purposes of Sub section (4) of Section 13 of the Act. Not only that it is a payment of rent in court even prior to the first date of hearing. The underlying object of Sub-section (4) of Section 13 is to give protection even to a defaulting tenant that by making the deposit of all the arrears of rent together with incidentals like the interest and the expenses of the 8 suit the tenant has yet one more chance to avert his eviction. But, if the tenant has already deposited the rent in court then such a tenant can be said to be a person who is undoubtedly ready and willing to pay the rent to the full extent allowable by this Act within the meaning of Sub-section (1) of Section 13 of the Act which is the condition for getting protection against eviction. The court has in that event to be satisfied about the existence of such facts as may bring the tenant's case under any of the Sub-clauses (a) to (k) to subSection (1) of Section 13 so as to take away such a protection. Sub-section (4) of Section 13 contemplates any of the two things to be done by the tenant: (1) to deposit the rent in arrears on the first date of hearing or (2) to make an application for fixing a date for such deposit, and in the later case he shall be entitled to deposit the rent before such date as the court may fix or within such time not exceeding two mouths as may be extended by the court or he may pay this amount to the landlord Sub-section (5) enables the tenant to raise a dispute regarding the payability of the rent. I am not expressing any opinion on the qu-estion whether such an application raising the dispute about the payability of the rent has to be made on the first date of hearing or should be made even subsequently, because in the present case the application for determination of the dispute was admittedly made on the first date of hearing The only consideration that seems to have weighed with the learned District Judge was that inspite of the tenant having made the deposit in the earlier suit something more yet remained to be paid on the first date of hearing. Perhaps by this he meant the usual incidentals like interest and costs, but it has to be noticed that the rent had already been deposited long before the first date of hearing and the requirement of Sub-section (4) is not that the rent is to be deposited only in the same suit. To my mind, if another suit in respect of the other portion of the premises was already instituted and if in that suit the tenant had been paying the rent for the entire premises and there was also an issue about the tenancy being one integrated the deposit of rent in the earlier suit would discharge the liablity of the tenant for the payment of rent in respect of the other portion of the premises. The provisions relating to suits are only remedial provisions and unless the statute expressly lays down that it is the deposit in that particular suit which alone can result in the discharge of a tenant's liability, the tenant's liability will be taken to be discharged according to general law when such payment has already been made though in the earlier suit. Sub-section (4) of Section 13 of the Act does not in so many words require that the deposit after the institution of the suit has to be made in that very suit and could not be made in any connected or allied suit between the same parties. The matter may be looked at even from another angle. Section 19A and Sub-section (4) of Section 13 have to be read harmoniously so that both may have their play in given situations. For example, a landlord may-file a suit for eviction and the first date of hearing is fixed, say after 3 months. Then, is the tenant to wait till the first date of bearing arrives and make his payment of rent only on that date or it will be open to him to make deposit if he does not want to delay the payment, and if so, where he can make the deposit. Sub-section (4) does not say anything as to what is to be done before the first date of hearing has arrived. Cannot the tenant make any deposits, if the landlord is not accepting the rent? To my mind, Section 19A of the Act will continue to operate till the first date of hearing in the suit is reached. In other words, if any deposit of rent is made prior to the first date of hearing in the suit even under Section 19A of the Act then such deposit shall be valid discharge of the tenant's liability if it otherwise fulfils the conditions laid down under Section 19A of the Act.
14. In the present case, therefore, if the matter is viewed from this angle, it was open to the tenant to have made the deposits in court as the first date of hearing had not arrived till then. Since it is the very court in which rent could have been deposited under Section 19A of the Act or under Section 13(4) of the Act in the earlier suit such a payment should be a valid discharge of the tenant's liability to pay the rent. In any event when the tenant had raised the dispute under Sub-section (5) of Section 13 of the Act on the first date of hearing the court should have in determining the dispute treated the earlier deposits as valid deposits.
15. Before concluding I may refer to yet two more cases cited by learned Counsel for the respondents (1)1970 R.C.R. page J, and (2) AIR 1964 Calcutta page 108. In the first case the rent had been deposited in a debt relief court which was a court different from the court in which the suit was tiled. The case is, therefore, distinguishable.
16. From the Calcutta case the following observations are relied:
It has been also faintly argued that the Rent Controller is a Court, and the deposit with the Rent Controller is 'deposit in Court' within the meaning of that expression as used in Section 17(1). The argument is devoid of any substance. The expression 'Court in Section 17(1) means the Court in which the suit or proceeding for ejectment is pending.
The observations are not at all helpful. The deposit before a Rent Controller is not a deposit in court, as Rent Controller is not a court. The learned Judges have emphasised that the 'Court' in which the suit or proceeding for ejectment is pending.
17. In the present case the rent was deposited in the court of Munsif before whom the suit or proceedings for ejectment were pending Therefore, the later part of the judgment is fully satisfied in the present case. As I have already observed, no such distinction can be made and the rent though deposited in the very court in a suit between the same parties in respect of another portion of the same premises will be taken to be a deposit in the court, Section does not limit the scope of Sub-section (4) to the very proceedings in the suit, as already observed.
18. The result is that I allow the revision application in part The order of the trial court so far as the refusal to stay the proceedings under Section 10 is concerned shall stand, but it is set aside in so far as the defendant's defence under Section 13(6) of the Act has been struck out. The court shall proceed further in the matter according to law. The parties are left to bear their own costs of this revision application.