S.N. Modi, J.
1. This is a second appeal by one of the three defendants, namely, Gyanchand in a suit for eviction and arrears of rent.
2. The relevant facts giving rise to this appeal are like this : There is a shop in Jaipur City Tripolia Bazar, Jully described into para No. 1 of the plaint. It belongs to the plaintiffs. This shop was let out to the appeallant and his two brothers Padamchand and Taracband on 1-9-61 at a monthly rent of 60/-. The plaintiffs served a notice of eviction under Section 106 of the Transfer of Property Act on the three tenants terminating their tenancy. The tenants did not vacate the suit premises. The plaintiff respondents therefore instituted a suit in the Court of the Munsif East, Jaipur City. They chaimed eviction of the three defendant tenants on three grounds-(1) that the defendant-tenants neither paid nor tendered rent for more than six month from Magh Sukhlal, Sat, 2021, (2) that the shop was required by the plaintiffs for their own use and occupation bonafide and reasonably and (3) that tea shop was sub let to Mesers. Rajasthan Barren Bhandar without obtaining any consent from the plaintiffs. On the aforesaid grounds, it was prayed that the defendant tenants Padamchand, Tarachand and Gyanchand be evicted from the shop and a decree be paused for arrears of rent and damages to the tune of Rs. 510/-.
4. The summons on all the three defendants were served for the hearing dated 14-2-66. Mr. Tarachand Advocate put in his appearance on behalf of the tenants Padamchand and Tarachand. Gyanchand appellant did not put in his appearance on that date though he was duly served. On the same date that is, 14-2-66 Mr. Tarachand moved an application under Section 13 of the Rajasthan Prem see (Control of Rent and Eviction) Act, 1950, her in-after referred to as the Act, for determination of the rent due from the defend-ants in accordance with law. The court determined be rent on 1.8.61 and directed the defendants to deposit a sum of Rs. 398 76 P. on or before 19-4-66. The plaintiffs moved an application for striking out the defence of the defend-ants against eviction as they failed to deposit or pay monthly rent regularly as specified in Section 13(4) of Act. On 14.12.68 the trial court disposed of that application and ordered as under:
Under Section 13(4) of the Rent Control Act, the defendants ought to have paid or deposited the monthly rent. In the instant case, the defendant his ignoously failed to comply with the provisions of the law. I, there fore hold that the defendant has failed to pay or deposit the rent after 21-4-66 (upto which the plaintiffs admitted that the rent has been received) month by month. Hence it is ordered that the defence against eviction be struk off. Order pronounced.
Aggrieved by the said order, the three defendants including the appellant preferred an appeal which was dismissed by the learned Senior Civil Judge No. 1, Jaipur City, on 30-10-67. A revision petition was then preferred by the same three defendants which was dismissed by Hon'ble Bhargava J vide his order dated 19-9-68. When the record was received back by the trial court Shri Tarachand Jain Advocate brought to the notice of the trial court on tht the hearing dated 26-11-68 that he was holding brief only on behalf of Padamchand and Tarachand and not on behalf of the defendant-appellant Gyanchand. Since Gyanchand was not present on the heating dated 23-11-68, the court ordered to proceed against Gyanchand exparte On 30-11-68 an application was moved on behalf of the appellant Gyanchand for setting aside the exparte order passed on 26-11-68 The trial court set aside that order on 13-1-69 and adjourned the case to 27-1-69 for filing written statement by the appellant Gyan Chand. The written statement was filed on 27-1-69 and the case was adjourned to 6-2-69 for framing issues. On 5-2-69 the appellant Gyanchand again moved an application under Section 13 of the Act for determination of the rent etc. due to the plaintiffs. The trial court rejected that application under Section 13 on the ground inter alia that no amount of rent was payable to the plaintiffs on 5-2-69 as other defendants had paid rent upto 23-9-69. The plaintiffs thereafter moved an application on 7-2-70 for striking out defence against eviction against the appellant Gyanchand as he did not comply with the provisions of Section 13(4) of the Act This application was not decided by the trial court and the suit was allowed to proceed further. Ultimately, the trial court dismissed the suit on 23-9-71. On appeal by the plaintiffs, the learned Additional District Judge No. 3 Jaipur City, allowed the appeal on the ground that the defendants were the defaulters in payment of rent within the meaning of Section 13(1)(a) of the Act. The other grounds on which the suit was based, namely, sub letting and personal requirement were held not proved. The defendant Gyanchand has now preferred this second appeal challenging the decree passed by the learned Additional District Judge No. 3 Jaipur City.
5. I have heard the learned Counsel for the parties and gone through the record of the case.
6. The main question that arises for consideration in this appeal is what is the effect of the order dated 14-12-66 striking out the defence against eviction under Section 13(6) of the Act. It is argued that this order was effective against the defendants Padamchand and Tarachsnd only and not against the appellant Gyanchad as by that time Gyanchand had not put in his appearance before the court. It is further argued that an order to proceed exparte against the appellant was made as late as 26-11-68 which was set aside on showing good cause for his absence on 13-1-69. The appellant was thereafter allowed to file the written statement which he actually did on 27-1-69. In these circumstances, it is urged that since the entire arrears of rent, interest and cost under Section 13(4) or (5) of the Act had been paid by the other defendants before 5-2-69, the first date of hearing, the order striking out defence passed on 14-12-66 has not effect on the appellant. This contention, in my opinion, is wholly untenable. There is no denying the fact (sic)a more than six months' rent had fallen into arrears at the time of the institution of the suit There is again no dispute on the question that one of the grounds for eviction was not payment of rent for mote than six months. The fact that the defendants were defaulters in payment of rent for a period of more than six months on the date of the suit has not been challenged before me. Section 13(1) of the Act lays down that not with standing anything contained in any law or contract, no court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent there for to the full extent allowable by this Act. unless it is satisfied that the tenant has neither paid nor tendered the amount of rent due from him for six months. Sub-sections (4) (5) (6) and (7) of Section 13 of the Act run as under:
(4) IN a suit for eviction on the ground set forth in Clause (a) of Sub-section (1), with or without any of the other grounds referred to in that sub-section, the tenant shall, on the first day of bearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate
(5) If in any suit referred to in Sub-section (4), there is any dispute 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 15 days from the date of such order, in accordance with the provisions of Section (4).
(6) If a tenant fails to deposit or pay any amount referred to in Sub-section (4) or Sub-section (5), on the date of within the time specified there in, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit,
(7) If a tenant makes deposit or payment as required by Sub-section (4) or Sub-section (5), no decree for eviction on the ground specified in Clause (a) of Sub-section (1) shall be passed by the court but the court may allow such costs as it may deem fit to the landlord.
Provided that a tenant shall not be entitled to any relief under this benefit or benefit under Section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months.
Sub-section (6) of Section 13 lays down in clear terms that if a tenant fails to deposit or pay any amount referred to in Sub-section (4) of (5) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.
7. In the present cese, the defence was struck out by the trial court vide its order dated 14-12-66 quoted above. It is true that the appellant Gyan Chand has not appeared before the court upto that stage but it is equally true that be was duly served before that date. On passing of the order striking out the defence, not only his brothers Padam Chand and Tarachand filed an appeal before the Senior Civil Judge, Jaipur City, but the appellant Gyancband was also one of the appellants in that appeal. Similarly, on dismissal of the appeal by the learned Senior Civil Judge, Jaipur City, all the three defendants including the appellant Gyanchand filed a revision petition before this Court which was dismissed vide order dated 19-9-68. A perusal of these orders reveals that the defence was struck out against all the three defendants. It has been contended on behalf of the appellant that the initial order of the trial court does not show whether the defence was struck out against all the three defendants, but that, in my opinion, is immaterial because n appeal was preferred by all the three appellants including the appellant Gyanchand and the judgment of the trial court completely merged into that of the appellate court wherein it was clearly mentioned that the defence was struck out against all the defendants. It, therefore, cannot be said that in the present case the defence against eviction against the appellants was not properly or validly struck out. The subsequent order of the court setting aside the exparte proceedings against the appellant, was, in my opinion, meaningless when his defence had already been struck off by the trial court No. benefit could be taken by the appellant of his deliberate absence upto 14-12-66 and then by moving the court for setting aside the exparte proceedings against him. As the defendants have committed default in payment of rent within the meaning of Section 13(1)(a) of the Act, there is no force in this appeal and it is dismissed with costs.
8. The learned Counsel for the appeal prays for Leave to Appeal to a Division Bench which is refused.