J.P. Jain, J.
1. This is a tenant's appeal and it arises out of a suit for ejectment. Messers, Sualal Ramnarain, a Hindu joint family own the suit house situate at Abu Road. A portion of the house, that is the first floor was rented out to Babu Kali Prasad for residence at the rate of Rs. 25/- per month in July, 1958. In addition to the rent privy tax of Rs. 75 per month was also payable by the tenant. The tenancy commenced from every 1st day of the English calendar month. According to the plaintiffs the defendant did not pay rent from 1-1-1970 to 31-1-1971. A quit notice was served on the tenant to vacate the demised premises by 31-1-1971. The tenant having declined to handover possession, Jagdish Prasad Manager of the joint Hindu family sued the defendant for eviction and for arrears of rent on 9-2-1971. The eviction was sought of the ground of default and that the demised premises were required for personal use of the plaintiff's family.
2. The suit was resisted by the defendant by written statement dated 14-7-71. The tenancy was admitted. The rate of rent and the privy tax was also not denied, It was, however, alleged that the rent for the period from 1-1-70 to 31-1-71 was paid to the plaintiffs' agent M/s. Ganeshram Ramgopal Abu Road on 12-4-71. As regards the privy tax it was stated that it was deposited in the Municipality. On that basis it was pleaded that the defaults have thus been waived by the plaintiffs. The personal requirement of the plaintiffs was also denied.
3. By replication dated 27-10-71 the plaintiffs did not admit the, receipt of Rs. 325/- alleged to have been deposited on 12-4-71 According to them M/s. Ganesh Ram Ram Gopal had not informed them that the amount has been received by them on plaintiffs' behalf. It was also pleaded that the payment did not have the effect of waiving the defaults committed by the tenant.
4. 14-7-71 was the first date of bearing and the tenant deposited Rs. 125/- towards the rent from 1-2-71 and Rs. 3-50 towards interest. The learned trial Judge by his order dated 7-2-72 held that the amount has not been deposited as required by Section 13(4) of the Rajasthan Premises (Control of Rent &) Eviction) Act, 1950, (hereinafter referred to as 'the Act'), He struck out the defence against eviction. Subsequently by his judgment dated 15-2-1972 he decreed the plaintiffs' suit for eviction. He did not accept the defendant's plea that the payment of Rs. 325/- representing the rent from 1-1-1971 to 31-1-1971 waived the defaults Dissatisfied with this decree the defendant appealed and the learned Civil Judge, Sirohi, by his judgment dated 1-6-1974 dismissed the appeal. Before the lower appellate Court the following points were urged;-
(1) that the payment of rent on 12-4-71 to the agent of the plaintiff amounted to waiver of the defaults alleged against the defendant.
(2) the notice was invalid and did not terminate the tenancy; and
(3) that the trial Judge failed to frame issues with regard to defaults and the alleged bonafide and personal necessity of the plaintiff.
5. On behalf of the appellant learned Counsel argued that the defence against eviction was not rightly struck out by the trial court He submitted that by the written statement filed on 14-7-71 a contest was raised by the tenant and as such question of depositing rent and interest in accordance with Section 13(4) did not arise and the Court did not determine the rent as required by Section 13(5) of the Act. On the other hand, Mr. Gupta argued that the plea raised by the defendant did not fall within the purview of Section 13(5) of the Act. I have considered the rival contentions with care. The plaintiffs' case as regards default was quite specific that the defendant did not either pay or tender the rent for 13 months that is from 1.1.1970 to 31-1-1971 This fact was not denied. The plea of the defendant was that the rent for this period was paid on 12-4-71 that is after the suit was instituted and that too, to the agent of the plaintiffs. It was not pleaded by the defendant that he either paid or tendered the rent month by month as stipulated by him. He did not even contend that the rent for that period was remitted by M.O. The question that fale for consideration is as to whether the payment of rent for this period on 12-4-71 after the suit was instituted amounts to raising a contest within the meaning of Section 13(5) of the Act. Section 13(5) reads as follows:
Section 13(5) If in any suit referred to in Sub-section (4), there is any default as to the amount of rent payable by the tenant, the court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order, in accordance with the provisions of Section (4).
The allegations made by the plaintiff were not denied by the defendant. If the rent had been paid before the suit had been filed, Section 19D would have come into play. Section 19D lays down that when there is no proceeding pending in the court for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default. In the present case the amount of rent due to the plaintiff was not paid before the suit was filed. As a matter of fact after the quit notice was served upon the defendant he paid the amount to the agent of the plaintiffs without their knowledge. Suit for ejectment had already been instituted. The acceptance of rent, therefore, by the agent cannot be deemed to have waived the default. Nor can it be said that the defendant raised a contest within the meaning of Section 13(5) of the Act. As soon as the plaintiffs came to know from their agent that the money was received by him on their behalf they accepted the position in the court. The 1earned trial Judge took notice of these facts. He was of the opinion that if the tenant want, d to get rid of the defaults against him be should have deposited interest as well due on the money paid by biro to the agent of the plaintiffs as mere payment of rent without interest does not fulfil the requirement of Section 13(4) of the Act and it fails to protect the tenant from the defaults alleged against him. On this basis the learned Judge struck out the defence of the tenant against eviction. In my opinion the approach is correct and the contention raised on behalf of the appellant is devoid of merit.
6. Next submission of Mr. Mathur for the appellant is that on these pleadings decree for ejectment could not have been passed. The eviction was sought on two grounds; one was the default under Section 13(1)(a) and the other was the personal necessity under Section 13(1)(b) of the Act. Learned trial Judge did not investigate the question of personal necessity. He did not frame any issue and parties were not given an opportunity to adduce evidence. In view of the decision In Mohan Lal v. Lakbekhan 1972 WLN 753 the plaintiff's suit for eviction cannot be decreed on the ground of personal necessity. But as regards default the facts are abundantly clear from the pleadings and the tenant has not been able to avail protection provided by Section 13(4) of the Act. The default in paying rent as alleged was from 1-1-70 to 31-1-1971. As noticed above even when the rent was paid, interest on that amount was not paid as required by Section 13(4) of the Act. It was not a case of the defendant that he either paid or tendered the rent as stipulated within Section 13(1)(a) of the Act. There was nothing else to be proved on the part of the plaintiffs to satisfy the court as to the tenant's liability far eviction. The decree for eviction can, therefore' be sustained on the ground of default.
7. No other point was argued. In the result the appeal fails and it is hereby dismissed with costs, Learned Counsel for the appellant prays for leave to appeal to Division Bench but it is refused.