S.N. Deedwania, J.
1. This appeal is filed by Banwarilal appellant against the order, dated February 17, 1975 of the learned Judicial Magistrate, No. 2, Kota, acquitting the respondent of the offence under Section 23(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act').
2. The relevant facts are these. The appellant is tenant of the respondent, who for ulterior motive of evicting the appellant wish held water and electricity amenities on 4-10-72 from the tenanted premises. The appellant moved an application under Section 12 of the Act for the restoration of the amenities, in the court of City Magistrate, Kota, who on 8/12 2 73 gave an interim order directing the respondent to restore the amenities within 10 days on the condition of payment of Rs. 67-28 to respondent pending the disposal of application under Section 12 of the Act The appellant sent a money order for Rs 42/- only to the respondent, which his refused to accept and did not restore the amenities. It appears that the case was fixed for 26-2-73. On that day, the appellant and his counsel were present, while the respondent with his counsel were absent. The appellant moved an application that though he had complied with the order of the court by sending the money order for Rs. 42/- to the respondent, he had refused to accept the money order and had failed to restore the amenities. However, the City Magistrate was of the view that the appellant was bound to pay Rs. 67.28 and, therefore, again passed an order on 26-2-73 that the appellant should deposit in the court a sum of Rs. 67.28 in compliance of the order, dated February 12, 1973. The appellant deposited the amount in the court on 28-2-73 and the case was not taken up on 6-3-73. It appears that the order of the court, dated February 26, 1973 was not brought to the notice of the respondent as be along with his counsel was absent on that day. The respondent was also not informed of the face that in compliance of the order dated February 26, 1973, the appellant on 28-2-73 had deposited a sum of Rs 67.28 in the court. On 23.3.73, the learned City Magistrate passed an order that the appellant may himself restore the amenities. Thereafter, the appellant obtained requisite sanction from the District Magistrate, Kota and filed a complaint under Section 23(1) of the Act against the respondent for contravening the aforesaid order of the City Magistrate.
3. I have heard the learned Counsel for the parties and perused the record of the case carefully.
4. Many interesting points were raised in the appeal, which I do not propose to deal because I am of the view that the appellant had failed to prove that the respondent contravened the order of the City Magistrate.
5. It was argued by the learned Counsel for the respondent that the court had no jurisdiction to issue an interim order for restoration of the amenities in the absence of any specific provision to that effect. The respondent was not bound to comply an order without jurisdiction. It was further submitted that the sanction issued by the Collector for prosecuting the respondent was not valid. On the other hand, the appellant contended that the sanction was proper and valid, court had the jurisdiction and power to issue an interlocutory order for restoration of the amenities In any case, he respondent could not have dis-obeyed the order even bad for want of jurisdiction or power. As already observed, I do not propose to decide these interesting questions of law in this case.
6. The admitted position is that the ultimate order directing the respondent to restore the amenities on deposit of Rs. 67. 28 was made on 26-2-73. The respondent was well within his rights in not complying with the order dated 12-2-73 because the condition precedent for the payment of Rs. 67. 28 was not complied with by the appellant for one reason or other, It further appears that the order, dated February 26, 1973 was passed behind the back of the respondent. The appellant tried to argue that the respondent and his counsel were present on that date. I am not impressed with this argument because he failed to allege this fact o(sic) the fact of order made on 26-2-73 in his complaint. In the order sheet, dated February 26, 1973, the presence of the respondent or his counsel was not recorded. The appellant in his statement t the trial, of course, stated that the respondent was present with his counsel on 26-2-73 though it was not so mentioned in the proceedings of the court. The appellant cannot be believed on this fact as he stands contradicted by the proceedings of the court. The appellant also nowhere stated that he brought to the notice of the respondent that he had deposited the requisite amount in the court, on 26-2-73. The respondent was, therefore, justified in not complying with the order till 28-2-73 as the appellant for one reason or the other did comply with the condition precedent of paying a sum of Rs. 67. 28 to the respondent. Even after 28-2-73, it was never brought to the notice of the respondent that Rs. 67. 28 had been deposited in the court. Therefore, in my opinion, it can not be said that at any time before 23-3-73, the respondent intentionally contravened the order of the court On 23-3-73 however, the court directed that the appellant might himself restore the amenities and on that day, therefore, the respondent had hardly any opportunity to comply with the order of the court, dated February 26, 1973 In these circumstances. I am of the view that the appellant failed to establish beyond reasonable doubt that the respondent intentionally contravened the order of the court regarding restoration of amenities and thus he was rightly acquitted of the offence under Section 23(1) of the Act.
7. The appeal being devoid of any force, is, therefore, dismissed.