Guman Mal Lodha J.
1. This is a defendent's appeal in a suit for eviction which has been decreed on the ground of default.
2. The short point raised by learned counsel for the appellant is that the defendant in his written statement disputed the amount of rent on various grounds and deposit that part of it which was undisputed. The trial court did not act under Sub-section (5) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 as it stood when the case came up for consideration Mr. Tikku's contention is that since the trial court failed to do its duty of determining the rent under Sub-section (5) of Section 13 of the Act of 1950 as it was in existence at the relevant time i.e. May 15, 1975. Therefore, the judgments of both the lower courts were vitiated.
3. Learned counsel appearing for the respondents has not disputed that sec-section (5) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was in the following form in force at the relevant time when the written statement was filed. His only dispute is that the defendant never disputed the rent and, therefore, it was not necessary for the Court to determine the rent:
(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 to 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 Sub-section (4).
4. A perusal of the written statement and particularly additional pleas (Paras Nos. 6, 7 and 8) would show that the defendent has raised several types of disputes. To enumerate, his first dispute was that from December 19, 1970 to December 19, 1971 the amount claimed Rs. 48/- was time barred. His second dispute was that in the earlier suit a decree has been passed in his favour against the plaintiff for costs which should be adjusted and set off. He then calculated the rent and then added court fees etc. and as per his calculation the total amount of Rs. 141.50 was deposited in the Court.
5. In view of the above, it cannot be said that the defendant never raised dispute about arrears of rent or the amount of the rent. Sub-section (5.) at that time contemplated that if there is any dispute of the amount payable by the tenant, the Court should 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 Sub-section (4).
6. Both the lower courts have committed a serious error of law in. ignoring this important provision of law which was in force at the relevant time. It is different thing whether the arrears of the rent for the period for which the claim became time barred can be allowed or cannot be allowed for the purpose of Sub-section (4) of Sub-section (5) as they stood at that time. Even if that amount is to be allowed, then the Court is required to determine that amount and so also the period for which it was said to be raised and' to decide the question regarding set off claim for costs can be allowed or not
7. May be that the trial court might have decided on all the points or a majority of the points or some points against the defendant or may be that the decision may go in favour of the defendant, but the mandatory statutory duty to determine the rent as required by the law which was in force at that time could not have been avoided and ignored by the trial court.
8. In view of the above, this appeal deserves to be accepted and is hereby accepted. The first appellate court would now determine the rent first in accordance with the provisions which were in existence at that time keeping in view the effect of amendments, if any, and then allow an opportunity. The first appellate court would also consider the application of landlord that the defendant has committed default in payment afterwards. If it is found to be correct, resort for striking off the defence should be taken, if law so necessitates. The judgment and findings of the trial court are set aside. So also judgment and all the proceedings of the first appellate court are also set aside. The suit is remanded to the first appellate Court for determining the rent. Both the learned counsel undertake to inform their clients to appear in the first appellate Court on August 8, 1985 and, therefore, fresh notices need not be issued. The parties will bear their own costs.