Modi, J.:— This civil miscellaneous appeal by the plaintiff is directed against the appellate judgment of the District Judge, Ajmer, dated 15-1-72 whereby the judgment and decree of the additional Civil Judge, decreeing suit for eviction and arrears of rent was set aside and the case was remanded to the trial court for fresh decision in accordance with law after taking defendants' evidence.
2. The facts relevant for the purpose of deciding this appeal are as follows:
Plaintiff Rampal and his two brothers are the owners of the property situate on Katchery Road, Ajmer and the Manager, Sasta Sahitya Press Ltd. and the Managing Director, Hind Sahitya Ltd., hereinafter called as defendants Nos. 1 & 2 respectively, are the tenants of the said property. The monthly rent of the property is Rs. 200/-. The tenancy is monthly in accordance with the Gregorian calendar. The present suit was instituted on 13-4-67 for the recovery of the arrears of rent amounting to Rs. 4300/- and for eviction inter alia on the ground that the defendants neither paid nor tendered the amount of rent due for more than six months. Summonses for settlement of issues were sent for service on the defendants for 4-7-67. On the latter date both the defendants were deemed to be served. Defendant No. 1 was present but defendant No. 2 did not put in appearance. The court ordered to proceed ex parte against defendant No. 2 and granted adjournment to defendant No. 1 to file written statement. The case was adjourned on 20-7-67 and 27-7-67 for filing written statement by defendant No. 1. Written statement was filed by defendant No. 1 on 7-8-67 and the case was adjourned to 8-9-67 for framing of issues. On 8-9-67 an application was moved by the plaintiff under O. 6, R. 17 and sec. 151 CPC for amendment of the plaint as it was thought that the description of defendant No. 2 in the title of the plaint was wrongly made. In fact there was no mistake in the description of the defendant No. 2 in the title of the plaint but the description of defendant No. 2 in the summons issued to defendant No. 2 for 4-7-67 was incorrect. The court therefore ordered issue of fresh summons for 18-10-67 in the name of defendant No. 2 for settlement of issues. On the same day, that is, 8-9-67, defendant No. 1 moved an application under sec. 18(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter called the Act, praying that two months time be allowed to deposit the amount of arrears of rent. The court fixed 18-10-67. For hearing of the arguments on this application and further ordered that a reply to the application be filed by the plaintiff in the meanwhile if they so desire. Defendant No. 2 was served for the heating dated 9-12-67. On the latter date, defendant No. 2 was absent, but Mr. R.K Bhargava, the learned advocate for the defendant No. 1, undertook to file power on behalf of the defendant No. 2. The case was then adjourned to 16-1-68 for filing written statement and power on behalf of defendant No. 2 and also for arguments on the application dated 8-9-67 made under sec. 13(4) of the Act. On 16-1-68. Mr. R.K Bhargava neither filed power nor written statement on behalf of defendant No. 2. He, however, stated that it was not necessary to file power on behalf of defendant No. 2 as the vakalatnama signed by Mr. Pavan Pathak on behalf of defendant No. 1 had already been filed by him and Mr. Pavan Pathak was also the Managing Director, Hindi Sahitya Ltd., that is, defendant No. 2. Mr. Bhargava also adopted on behalf of defendant No. 2, the written statement filed by defendant No. 1. The case then came up before the trial court on 24-5-68 on which date the arguments on the application dated 8-9-67 under sec. 13(4) of the Act were heard and defendant No. 1 was directed to deposit arrears of rent together with interest by 10-7-68 and future rent by 15th of every month. On that very day, the court framed issues and adjourned the case to 13-8-63 for the plaintiff evidence. On 10-7-68 Mr. Bhargava moved an application for further extension of time to enable defendant No. 1 to deposit the arrears of rent. The court extended the time upto 27-7-68. A sum of Rs. 9250/- as arrears of rent was deposited by defendant No. 1 on 20-7-63. The case lingered on for plaintiffs' evidence upto 20.1.70 on which date the plaintiffs closed their evidence. The case was then fixed for defendants'evidence. Before any witness was examined on behalf of the defendants, an application was presented by the plaintiffs on 7-3-70 praying that the defence of the defendants be struck out under sec. 13(6) of the Act as none of the defendants had deposited or paid the arrears of rent on the first day of hearing in accordance with the provisions of sec. 13(4) of the Act. This application was strenuously contested on behalf of the defendants. The main argument advanced on behalf of the defendants before the trial court was that the summons for the settlement of issues was served on defendant No. 2 for the hearing dated 19-12-67 and since an application under sec. 13(4) of the Act had already been made prior to that date by defendant No. 1 on 8-9-67, that application should be deemed to have been made by defendant No. 2. This argument did not find favour with the trial court which by its order dated 21-4-70 accepted the application under sec. 13(6) of the Act and ordered that the defence of the defendant No. 1 against eviction be struck out. The learned trial Judge further held that defendant No. 2 did not appear despite service of summons and therefore he will be deemed to be ex parte. In this connection, the learned trial Judge observed as follows:
“It appears that defendant No. 2 has not appeared till now despite sufficient service of summons. The summons for 19-12-67 were returned refused. Shri R.K Bhargava undertook to file power for the defendant No. 2. He did not do so. His statement that Mr. Pavan Pathak is the defendant No. 2 also canno possibly bind defendant No. 2 as that statement was made by a counsel representing the other defendant. Further Mr. Pavan Pathak had signed the power as Manager, Sasta Sahitya Press, and not as Managing Director, Hind Sahitya Ltd. These two limited companies are different identities and an officer of one cannot bind the other concern even if he is an officer of other concern unless he acts in the latter capacity. In any case, defendant No. 2 is not appearing in the case. Since he has been served, he will be deemed to be ex parte.”
The trial court thereafter proceeded with the hearing of the suit and ultimately decreed the plaintiffs' suit for eviction and arrears of rent. The defendants filed an appeal before the learned District Judge, Ajmer, who held that no question of proceeding ex parte against defendant no could arise as he was represented by a counsel. It was further held that defendant No. 2 could take advantage of the application dated 8-9-67 made by defendant No. 1 and that application should be deemed to have been made by defendant No. 2. It was further held that since the application dated 8-9-67 was made before the first day of hearing and the amount due as arrears of rent was deposited within the time fixed by the trial court, there was no warrant for striking out the defence against eviction under sec. 13(6) of the Act. The appellate court consequently allowed the appeal, set aside the judgment and decree passed by trial court as also the order dated 21-4-70 striking out the defence and remanded the case to the trial court with the direction that the defendants' evidence be taken and the case be decided afresh in accordance with law. It is against this order that the present appeal has been filed by the plaintiffs.
3. A preliminary point has been raised behalf of the defendant-respondents. It is stated that the plaintiff-appellants accepted the costs awarded by the trial court by its order dated 24-2-72 as a condition for the amendment of the written statement and therefore it was no longer open to the plaintiff-appellants to maintain the present appeal inasmuch as the plaintiff-appellants have derived benefit on account of the remand order passed by the appellate court. In this connection, I may mention that after the impugned order of remand was passed by the learned District Judge, Ajmer, the record of the case was sent to the trial court. The case came up before the trial court on 24.1.72 On that date the case was adjourned to 24-2-72 and the defendants were directed to furnish process fees and notices for summoning their witnesses. On 24-2-72 the learned counsel for the defendants moved two applications, one for recalling the plaintiffs' witnesses for cross-examination and the second for amendment of the written statement. The first application for amendment of the written statement was allowed on payment of Rs. 35/- as costs to the plaintiff. It is said that because the plaintiffs accepted the costs for amendment of the written statement on 24-2.72 the present appeal which was filed in this Court on 10-5-72 is not maintainable. The contention is wholly untenable. The present appeal is directed against the order of remand passed by the appellate court and not against the subsequent order allowing amendment of the written statement by the trial court. Had the plaintiffs challenged the validity or legality of the order allowing amendment of the written statement, the plaintiffs would have been estopped from doing so on the ground that they had accepted the benefit of one part of the order and therefore they must be held to have accepted the entire order. But that is not the case. The order appealed against by the plaintiffs is a remand order under which admittedly no benefit was derived by the plaintiffs. The impugned remand order is all together a separate and independent order. Simply because the plaintiffs accepted the costs in connection with a separate order passed in the proceeding which followed in compliance with the order of remand, it cannot be said that they gave up or lost their right of appeal against the order of remand. In my opinion, the right of the plaintiffs' to file appeal against the order of remand is not at all affected by the benefit derived by them in connection with a subsequent independent order passed after the order of remand. The preliminary point raised on behalf of the defendant-respondents thus fails and it is hereby rejected.
4. On merits, the real question that arises for consideration in this appeal is whether the order of the trial court striking out the defence of the defendants against eviction is proper and legal. There is no denying the fact that more than six months rent had fallen into arrears at the time of the institution of the suit. It was alleged by the plaintiffs in para No. 4 of the plaint that a sum of Rs. 4300/- was due from the defendants as arrears of rent upto 30-9-66. In the written statement filed by defendant No. 1, this allegation was not denied specifically. On the contrary, the defendant No. 1 moved an application on 8-9-67 for granting time to deposit arrears of rent under sec. 13(4) of the Act and he also actually deposited a sum of Rs. 9250/- as arrears of rent together with interest on 20-7-68. There is again no dispute on the question that one of the grounds on which the suit for eviction was based was non-payment of rent for more than six months. Learned counsel for the appellants has contended that whenever a landlord brings a suit against the tenant on the ground of non-payment of rent for a period more than six months with or without any of the other grounds referred to in sec. 13(1) of the Act, it is obligatory on the part of the tenant under sec. 13(4) of the Act if he wants to save himself from eviction to deposit in court or to pay to the landlord all the arrears of rent together with interest thereon at the rate of six percent per annum upto the date of deposit on the first day of hearing or on or before such time not exceeding two months as may be fixed by the court on an application made on the first day of hearing in this behalf. His contention is that in the present case, none of the defendants on the first day of hearing or within the period of two months therefrom either deposited or paid the arrears of rent or made an application in this behalf. He has further submitted that since the provisions of sec. 13(4) of the Act were not complied with by the defendants the court had no alternative but to strike out the defence as provided in sub-sec. (6) of that section. He also submitted that the deposit of arrears of rent made after the expiry of two months from the first day of hearing is of no consequence being not in consonance with the provisions of sec. 13(8) of the Act. According to the learned counsel, the court has no power to enlarge the statutory period of two months provided in sec. 13(4) of the Act.
5. On the other hand, it is contended on behalf of the defendants that the words “first day of hearing” occurring in sub-sec. (4) of sec. 13 of the Act mean the day on which issues are framed as it is on that day when the court applies its mind to the facts of the case. In the present case, issues were struck on 24-5-68 and the amount of arrears of rent was deposited on 20-7-68, that is, within two months from the first day of hearing. It is further contended that the application under sec. 13(4 of the Act was submitted by the defendant No. 1 long before the fast day of hearing and therefore the provisions of sec. 13(4) of the Act were fully complied with and there was no justification whatsoever for striking out the defence by the trial court under sec. 13(6) of the Act. The learned counsel for the defendants has also argued that sec. 13(4) of the Act no-where lays down that an application under that section must be presented on or before the first day of hearing. According to the learned counsel, such an application can be moved even after the first day of hearing and if the court entertains that application and fixes certain period for depositing the arrears of rent and if the tenant deposits or pays the arrears of rent within such period or within the period extended by the court, such deposit or payment fully satisfies the requirements of sec. 13(4) of the Act and no order striking out defence under sec. 13(6) can be passed by the Court. For a correct appreciation of the rival contentions raised by the learned counsel for the parties, it would be proper to reproduce here some of the relevant provisions of sec. 13 of the Act. Sec. 13(1)(a) of the Act reads thus:
“S. 13 Eviction of tenants—(1) Notwithstanding anything contained in any law or contract no court shall pass 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 therefor to the full extent allowable by this Act, unless it is satisfied—
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or
Sub-sees. (4), (5), (6) and (7) of sec. 13 of the Act run as follows
“(4) In a suit for eviction on the ground set forth in cl. (a) of sub-sec. (\), with or without any of the other grounds referred to in that sub-section, the tenant shall, on the first date of hearing 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 upto 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 per cent 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-sec. (4), there is any dispute as to 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 sub-sec. (4).
(6) If a tenant fails to deposit or pay any amount referred to in sub-sec. (4) or sub-sec. (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) If a tenant makes deposit or payment as required by sub-sec. (4) or sub-sec. (5) no decree for eviction on the ground specified in cl. (a) of sub-sec. (I) 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 sub-section if having obtained such benefit or benefits under sec. 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-sec. (6) of sec. 13 lays down in clear terms that if a tenant fails to deposit or pay any amount as required by sub-sec. (4) or sub-sec. (5) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out. This is a mandatory provision and once a default is committed as contemplated by this sub-section, the court has no discretion but to strike out the defence against eviction. Under sub-sec. (6) of sec. 13, the court is empowered to strike out defence only if the tenant has failed to deposit or pay any amount as required by sub-sec. (4) or sub-sec. (5) of sec. 13 on the date or within the time specified therein. In the present case, there is no allegation that the tenant failed to deposit or pay any amount as required by sub-sec. (5) of sec. 13. As a matter of fact, the provisions of sec. 13(5) did not apply to the instant case as there was no dispute between the parties as to the amount of rent payable by the defendants. The order striking out the defence was passed by the trial court solely on the ground that the defendants failed to deposit or pay the amount mentioned in sub-sec. (4) of sec. 13 on the date or within the time specified therein. A bare reading of sub-sec. (4) of sec. 13 would reveal that it allows a further opportunity to a tenant guilty of non-payment of rent for six months to save himself from eviction provided he complies with the 2 conditions mentioned therein. The first condition is that the tenant shall on the first day of hearing or on or before such date as the court may fix on an application made in this behalf deposit or pay to the landlord the whole amount of arrears of rent with interest thereon as specified in the sub-section. The second condition is that the tenant shall thereafter continue to deposit in court or pay to the landlord month by month, by the fifteenth of each month, a sum equal to the rent. If the tenant fails to comply with either of the aforesaid two conditions, his defence against eviction is liable to be struck out under sec. 13(6). In the present case, I am not concerned with the compliance or non-compliance of the second condition as no grievance has been made in that connection. The whole dispute revolves around the question whether or not compliance of the first condition has been made by the defendants. Again, it may be mentioned here that there is no dispute as to the quantum of the amount deposited by the defendants as arrears of rent. The only dispute is whether the defendants deposited arrears of rent on the date or within the time specified in that sub-sec. It is abundantly clear that under sub-sec. (4) the tenant is required to deposit the arrears of rent as specified therein either on the first day of hearing 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. In other words, the tenant must deposit all arrears of rent with interest thereon on the first day of hearing or he must make an application to the court on the first day of hearing for fixing time to deposit arrears of rent. The court is not bound to fix time on such application. But in case it exercises its discretion in favour of the tenant and fixes time within which the tenant is allowed to deposit the arrears of rent, the time so fixed or subseqnently extended by the court must not exceed two months from the first day of hearing. If the tenant deposits the arrears of rent as specified in sub-sec. (4) of sec. 13 within the time so fixed by the court, his defence against eviction shall not be struck out, but if he fails to do so, his defence shall be struck out under sec. 13(6). The above interpretation of sub-sec. (4) of sec. 13 is clearly borne out by its language as also by the whole scheme of sec. 13 of the Act. I, therefore, find no substance in the contention of the learned counsel for the defendants that an application to the court for fixing time to deposit arrears of rent can be made even after the first day of hearing and if the court fixes a date on such application even after the expiry of two months from the first day of hearing, such an order will be in conformity with the provisions of sub-sec. (4) of sec. 13 of the Act.
6. The question now arises, what is meant by the words “the first day of hearing” occurring in sub-sec. (4) of sec. 13.
7. At one time there was some controversy about the meaning of these words, but now it is clear from the series of this decisions of this Court that ‘the first day of hearing’ appearing in sub-sec. (4) of S. 13 is the date for which the summons is issued to the defendant for settlement of issues. See Padamchand v. Kunjbeharilal (S.B Civil Revision No. 446/1967 decided on 19-9-63), Surajbhan v. Chanderprakash (S.B Civil Revision No. 484 of 1968 decided on 16-12-68) and Mangalram v. Smt. Chandrawati Devi (1969 Rajasthan Weekly Law Notes, Part I, 257). I respectfully agree with the view taken in above decisions.
8. In the present case, summonses for settlement of issues which were returned duly served were issued to defendant No. 1 for the hearing dated 4-7-67 and to defendant No. 2 for the hearing dated 19-12-67. It has been argued on behalf of the plaintiffs that the first day of hearing in respect of defendant No. 1 is 4-7-67 and in respect of defendant No. 2, it is 19-12-67. On the other hand, it is contended on behalf of the defendants that in the present case, first day of hearing is 19-12-67 in respect of both the defendants as defendant No. 2 was served for that date. In this connection, support is sought by the counsel for the defendants on Mangalram's case (supra). In that case, there were two defendants Mangalram and Kedarnath. Summonses for settlement of issues were sent for service on the defendants for 20-10-67. On the latter date Mangalram defendant, was present. Kedarnath did not appear as he had not been served. The next date fixed in the case was 4-12-67. On that date, Kedarnath also appeared. While referring to the first day of hearing in that case, Jagat Narayan, J., is he then was, took 4-12-67 to be the date as the first day of hearing. The judgment is, however, silent as to why the said date, namely, 4-12-67, was deemed to be the first day of hearing. Even assuming for the sake of the argument that in the present case the first day of hearing was 19-12-67, that is not going to help the defendants in any manner. I he defendants did not deposit the arrears of rent with interest there on 19-12-67. The amount of arrears of rent was deposited by the defendants on 20-7-68, that is, long after the expiry of two months from 19-12-67. It is however, submitted on behalf of the defendants that defendant No. 1 had made an application on 8-9-67, that is, before the first day of hearing and since they deposited the arrears of rent with interest thereon within the time fixed by the court on that application, the defendants cannot be punished or deprived of the benefit on account of the inaction or latches on the part of the court. The argument though attractive is devoid of any force. As already pointed out above, the court is not bound to fix any time on the application made to it for depositing arrears of rent. It may or may not fix time or grant time for depositing arrears of rent. Further, the court is not competent, under any circumstances, to enlarge the time specified under sub-sec. (4) of sec. 13. If the court fixes any time for depositing arrears of rent, the period so fixed or later on extended can, in no case, exceed beyond two months reckoned from the first day of hearing. It is true that the amount of arrears of rent was deposited within the time fixed by the court, but that is of no consequence, for the court had no power to fix time after the expiry of two months from the first day of hearing. Since the defendants in the present case had failed to deposit arrears of rent with interest thereon on the date or within the time specified in sub-sec. (4) of sec. 13, there was no discretion left with the trial court except to order striking out the defence against eviction under sec. 13(6). For the reasons stated above, the order passed by the trial court striking out the defence against eviction, in my opinion, was wholly justified and the lower appellate court was wrong in setting aside that order. Since the first appellate court has not decided the appeal on merits, the case will have to be remanded to the first appellate court for fresh decision of the case on merits.
9. In the result, the appeal is allowed, the order passed by the appeallate court setting aside the judgment and decree passed by the trial court as also the order setting aside striking out defence against eviction are set aside and the case is sent back to the first appellate court for fresh decision of the appeal in accordance with law. The costs of this appeal shall be borne by the defendants.