Kan Singh, J.
1. This is a tenant's second appeal arising out of a suit for eviction of the tenant from certain premises and raises a question about the applicability of Section 59 A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter called the ''Act'.
2. The defendants had taken on rent a shop situated at Hindaun on 12-5-58 and executed a rent note for the same which is Ex. 1 on record. The monthly rent was Rs. 44/-. Earlier to the present suit the plaintiffs had filed a suit against the defendant appellants for their eviction from the shop on the ground of default and also on the ground of bonafide reasonable necessity of the landlords for the premises During the pendency of the suit, however, the Act was amended and in accordance with the amendments the defendant-appellants paid the arrears of rent and consequently the ground of default was deleted by the plaintiffs and the suit went to the trial on the ground of reasonable and bona fide necessity of the landlord. The plaintiffs were, however, not able to establish this ground and accordingly the suit was dismissed. The present suit was thereafter filed on the ground of default in the payment of rent. It was claimed that the defendant-appellants had been defaulters and that the rent had been in arrears for more than six months. The suit was filed on 25-11-69.
3. The defendants resisted the suit. It was averred by them that the defendants were always ready and willing to pay the rent. It was the plaintiff who according to them, was always avoiding to receive the rent. It was pointed out that even on earlier occasions rent had been sent to the plaintiff landlord by money orders but the same were refused. Consequently the defendants deposited the rent in Court vide 4 challans Ex 4, Ex. 6, Ex 6 and Ex 7. Then thereafter on 1-11-68 the defendants moved an application to the Court, which is Ex. A/8 on record, for depositing the rent for the period from 21-7-68 to 21-1-69 vide Challan Ex. A/7 and the arrears of rent was also deposited. According to the defendants, the Court accepted this deposit. Subsequently on 9-5-69 the defendants moved another application, Ex A/9 on record, for depositing the rent for the period from 21-1-69 to 21-7-69. This application was rejected by the court on the same day vide its order Ex A/11. 1 ought to mention that the application Ex. A/9 was accompanied by a challan Ex. A/10. Then on 28-3-69 the defendants moved another application for depositing the rent. This was Ex. A/12. It was accompanied by the challan Ex A/16. For sometime the court however, did not accept the deposit, but eventually on 30-8-69 the court passed the order for depositing the rent and accordingly on 1-9-69 the deposit of rent was made. I may once again remind myself that the date of hearing of the suit was more than two months ahead i.e. 25-11-69.
4. Thus only one question falls for determination whether the deposit of rent made on 1-9-69 or the earlier application of the defendants (Ex. A/9) moved on 9-5-69 had the effect of discharging the liability of the defendants for the payment of rent. I may read Section 19 A of the Act.
Section 19A. 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 bonafide 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.
(3) The deposit shall be accompanied by an application by the the tenant containing the following particulars, namely--
(a) The accommodation for which the rent is deposited with a description sufficient for identifying the premises;
(b) the period for which the rent is deposited;
(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent;
(d) the reasons and circumstances for which the application for depositing the rent is made.
(4) The application referred to in Sub-section (3) shall bear a court fee stamp of Rs. 2/- and shall be accompanied by requisite postal stamps for sending the notice and a copy to application under Subsection (5).
(5) On such deposit of the rent being made, the court shall send notice of the deposit by registered post acknowledgement due and also send a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of deposit; and a copy of such notice shall be affixed on the notice board of the court.
(6) If an application is made for the withdraw of any deposit of rent, the court shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him and such payment of rent shall be a full discharge of the court from all liability to pay rent to the landlord.
Provided that no order for payment of any deposit of rent shall be made by the court under this sub-section without giving all persons named by the tenant in his application under Sub-section (3), as claiming to be entitled to payment of such rent, an opportunity of being heard and such order shall be without prejudice to the rights of such persons to receive such rent being decided by a court of competent jurisdiction.
This section was inserted by Section 4 of the Rajasthan Act No. 12 of 1965, published in Rajasthan Gazette Vol. IV-A Extraordinary dated 9.6.65 The section lays down the procedure enabling tenant to deposit rent in court when the landlord does not accept the rent tendered to him by the tenant, or where there is a doubt as to whom the rent is payable. In terms of Section 13(2) of the Act by remitting the rent to the landlord by a postal money order at his ordinary address the tenant shall be deemed to have paid or tendered the amount of rent to the landlord. That provision, however, did not lay down that the liability of the tenant would thereby be discharged.
5. Section 19 A, therefore, made a provision enabling the tenant to obtain full discharge of his liability to pay rent to his landlord. If the application Ex A/9 or for the matter of that the deposit of rent made on 1-6-69 could be held to be in conformity with the provisions of Section 19A of the Act then there will be full discharge of the tenant's liability to pay rent and that would be the end of the matter. Learned Counsel for the appellant realises that if application Ex A/9 moved on 9-5-69 were not held valid then the subsequent deposit on 1-6-69 may not help him as by that date or even on 23-8-69 the default would be for more than six months. Learned Counsel for the appellant, therefore, put weight on the application Ex A/9 and argued that the court was not justified in refusing to accept the rent on that occasion. Learned Counsel submitted that it was the mistake of the court when it did not accept the rent and, therefore, the party i.e. the tenant should not be made to suffer for it and the doctrine of 'Nune pro tunc' the payment should be deemed to have been made Learned Counsel relied on Birdi Chanda v. State : AIR1958Ori159 and Jagat Dhisa v. Jawarlal : 2SCR918 .
6. It is true, where a court is to blame for a certain order the party should not be made to suffer on account of court's mistake when the party is free from all blames.
7. The application Ex. A/9 was refused by an order in the following terms:
nj[okLr nsfgUnk }kjdk izlkn gkftj gS bl U;k;ky; es vc dksbZ eqdnek isfUMx ugh gS Ablfy, fdjk;k tek ugh djk;k tk ldrk gS Avr% nj[okLr [kkfjt gksdj nkf[ky nQ+rj gks A
Learned Counsel for the appellant submits that even though earlier to this, inspite of the suit having been disposed of, the court had accepted the rent on this occasion the court had wrongly refused to accept the rent. If the matter were to and there perhaps there would have been some force in the contention. Although the appellant did not make any reference to Section 19-A of the Act, yet it is noteworthy that this was an appealable order and the defendant did not challenge it in appeal. It is not disputed here that the defendant could have gone in appeal to the court of the learned District Judge in accordance with Section 22 of the Act. Be that as it may, there is no occasion for the applicability of the doctrine of Nune pronounc. Apart from this the application Ex A/9 did not state that earlier to the application the rent had been tendered to the landlord. In Kabiraj v. Baijnath : AIR1968Cal56 an analogous provision of the West Bengal Tenancy Act came to be considered. A Division Bench of the Calcutta High Court observed that every deposit of rent must be preceded a by proper tender and a refusal on the part of landlord to accept the same and unless deposits are valid they cannot cure the default. The relevant observations were as follows:
Besides, the language of Section 21(1) puts the matter beyond all doubts. It says where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 4 the tenant may deposit such rent with the Rent Controller in the prescribed manner. The words 'such rent' towards the latter part of this sub-section obviously refer to 'any rent' in the first part and must obviously mean rent for every month. Every deposit must, therefore, be preceded by a proper tender and a refusal on the part of the landlord to accept the tender. Unless the deposits are valid and in conformity with Section 21 of the Act, the deposits cannot cure the defaults for the respective months
In that case all the deposits were held to be invalid as they were made in contravention of Section 21 and the tenant was guilty of four defaults so that he was not entitled to the protection afforded by that Act. The same view was reiterated in : AIR1969Cal104 .
8. Learned Counsel for the appellant submits, on this aspect, that this ground has not been taken by the respondent in the courts below. There is no substance in this submission. It was for the defendant to show that he was not in default in the payment of rent when the rent for the relevant period was not actually paid. Application Ex.A/9 does not state that he had offered the rent for that period to the respondent and the same had been refused by him. In these circumstances the filing of the application Ex.A/9 was not in conformity with the requirement of Section 19A of the Act.
9. I may next turn to the deposit made on 1-9-69 This was preceded by the application Ex.A/12 made on 19-7-69. On this date more than six months rent was due. The month of tenancy was from 12th of the month to the 11th of the following month. When more than 6 months rent was in arrears even if the court had accepted the deposit under Section 19A of the Act that would not be sufficient to cure the default. Section 19B of the Act lays down that no rent deposited under Section 19A shall be considered to have been a valid deposit under the section unless the deposit is made within 15 days of time referred to in Sub-section (1) of that section for payment of the rent; and the defaults made within the time aforesaid shall constitute payment of rent. In Bhanwarilal v. Smt. Chandra Kanta 1970 RLW 464 it was observed:
The effect of making payment under Section 13A(b) is given under Section 13A(a). If payment under Section 13A(b) is made then Section 13A(a) provides that no court shall pass any decree for eviction on the ground of non payment of rent If payment under Section 13A(b) is made the tenant cannot be evicted on the ground of default. Section 13A(a) is not subject to Section 13(4). It cannot therefore be said that Section 13A is not inconsistent with the provision contained in Section 13(4). The provisions under Section 13(4) cannot be applied to a case governed by Section 13.
That being so, if the rent had been deposited late after the tenant had been a defaulter that would not cure the default so as to avoid the consequences of such a default. In other words, the non-availability of the protection flowing from such defaults cannot be avoided. In the circumstances the deposit of 1-9-69 also cannot save the tenant.
10. That being so, there is no force in the appeal which is accordingly hereby dismissed, but the parties are left to bear their own costs in this Court.
11. In the circumstances disclosed, however I allow four months time to the defendant-appellant to vacate the premises, but this shall be on the condition that the appellant pays all the arrears of rent, if any, within one month from today and further goes on paying compensation at the rate of rent month by month by the 15th of the following month till the premises are vacated.