Lodha, J.:— This second appeal by the defendant tenant raises an interesting question of law and it is this whether the transferee landlord can take advantage of the default committed by the tenant in payment of rent due from him to the previous landlord for more than six months.

2. The facts and circumstances in which the question arises may be briefly narrated as below—

The defendant appellant Naraindas was admitted as tenant in respect of the premises in question by Arjundas and Hassomal on a monthly rent of Rs. 5/-. It is the admitted case of the parties that the defendant did not pay rent to Arjundas and Hassomal, predecessors in title of the plaintiffs Rajender Singh and Kanwal Singh for the period commencing from 22nd May, 1964 up to 4th May, 1965. Arjun Das and Hassomal sold away the entire property, in which the apartments rented out to the defendant appellant are situated, by a registered sale deed dated 4th May, 1965, copy of which has been placed on the record and marked Ex. 1. After the plaintiffs had purchased the property, the defendant sent by money order arrears of rent due from 22nd May, 1964 to 30th April, 1965 Rs. 56.62 p (vide money order coupon Ex. A. 1) but the plaintiff did not accept the same. Subsequently the defendant again sent by money orders arrears of rent falling due but the plaintiffs went on refusing and after serving a notice of ejectment on the defendant they filed the present suit for ejectment on two grounds viz (i) default in payment of rent and (ii) sub letting. The first date of hearing was 15th May, 1968. No application, however, was made by the defendant on that date for depositing the arrears of rent as contemplated by sec. 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. An application was filed by the defendant under the aforesaid provision on 9-10-1968, on which the arrears of rent together with interest were ordered to be deposited by the Court and the same were deposited within the time fixed by the Page: 101Court. It may, however, be mentioned that month to month rent falling due thereafter was not deposited.

3. The defendant resisted the plaintiff's suit. After recording the evidence produced by the parties the learned Munsiff, Ajmer (West) by his judgment dated 29th July, 1969 decreed the plaintiff's suit for ejectment as well as for arrears of rent amounting to Rs. 189/-. Aggrieved by the judgment and the decree passed by the trial Court, the defendant filed appeal which was dismissed by the learned Additional Civil Judge, Ajmer on 27-4-1970. Consequently the defendant has come in second appeal to this Court. That the defendant had neither paid nor tendered the amount of rent due from him for more than six months commencing from 22nd May, 1964 to his previous landlord, and had thereby committed default, is not denied, but what is argued on his behalf is that the defendant had not committed any default in the matter of payment of rent qua the present plaintiffs, after they had purchased the property on 4-6-1965 and the default committed vis-a-vis the previous land lord cannot be availed of by the present landlord for the purpose of ejecting the defendant. In support of his contention the learned counsel for the appellants has relied upon Daya Debi… v. Chapala Debi…Opposite Party. (1), Babu Bhai Nabi Bhai v. Bhagwandas Jagannath (2), Bachchan Lal…Defdt.- v. Ram Asre…Plaintiff-. (3). On the other hand learned counsel for the respondent strongly relies on Maye Singh v. Mahammad Bisir (4), Kanto M. Mullick v. Jyotish Ch. Mukherjee (5) and Ram Prakash Ghai v. Karamcband (6).

4. In Manmath Nath v. Sesanka Mohan (7) it was held that if defaults were committed during the time of one landlord the transferee landlord was entitled to take advantage of the defaults. In Charubala v. Madhusudan Kundu (8) also the same view was taken and in Basumati Debi v. Sannulal Shaw (9) the learned Judge followed the above two decisions. In Kanto M. Mullick v. Jyotish Ch. Mukherjee (5) the question for decision was whether the plaintiff is entitled to avail himself of the defendant's default in regard to payment of rent at a time prior to that when the plaintiff became the landlord. It was held on the interpretation of the relevant provisions of the Calcutta House Rent Control Order, 1943 that default by a tenant is not limited in its effect as to be available only to a person who, at the time of default was the landlord. It was observed that for a tenant to be able to avail himself of the benefit of the Order in respect of a house, the occupancy of which, he desires to retain, there must be at all times fulfilment of all conditions of the tenancy including payment of rent at the time prescribed in the Order.

5. Learned counsel for the appellant however suggested that the Division Bench decision in Daya Debi… v. Chapala Debi…Opposite Party. (1) over rules the four decisions referred to above. The question that arose was whether the tenant was bound to deposit all rents which fell in arrears during the time of the previous land lord under sec. 17(1 of the Premises Tenancy Act It was held by the learned Judges that the assignment was not of rent at all but it was assignment of debt becuse the person who transfers his land, is no longer the land-lord but merely a creditor with respect to a certain debt and what he assigned was the debt. This proposition to some extent may support the theory that the benefit of a default is not transferrable. According to this decision, when arrears of rent were assigned, they lost their character of rent. However, in a subsequent decision of the Calcutta High Court, Maya Singh v. Mahammad Basir (4), the learned Judge distinguished the Division Bench case, Smt. Daya Dabi v. Chapala Debi (1) on the ground that the precise question whether a tenant ii not entitled to claim protection because he was in default to the previous land lord did not arise before the Division Bench. In this view of the matter the learned Judge held that the default committed by the tenant can be taken into consideration in a suit for ejectment by the succeeding land lord and that the statute protects only a tenant who has not defaulted in payment of rent. Thus the Calcutta cases appear to be against the view canvassed by the appellant.

6. In Bachchan Lal…Defdt.- v. Ram Asre…Plaintiff-. (3) a learned Judge of the Allahabad High Court held that where the previous owner had assigned to the new land-lord the right to recover the arrears of rent which were due to her, it was merely an assignment of an actionable claim or ‘chose in action’ and that the new landlord could not claim Page: 102it as rent on a sale or transfer of the property bat was entitled to recover the amount only as a creditor. It was further observed that on the tenants' refusal to pay the amount, the landlord could not treat the tenant as a ‘defaulter’ as there was no relationship of landlord and tenant at the time of the alleged default on the part of the tenant. This ruling in my view, loses all its force in view of a later decision of the Allahbad High Court in Ram Prakash Ghai v. Karam Chand (6) by which it was over ruled. In the Bench decision, the learned Judges held that in view of the definition of the word landlord contained in U.P (Temporary) Control of Rent & Eviction Act (3 of 1947), the transferee of the house who has purchased the arrears of rent also can make a demand and the amount of liability will not lose its character as arrear of rent.

7. In the case of Madhya Pradesh [2] the reasoning given in, Bachchan Lal…Defdt.- v. Ram Asre…Plaintiff-. [3] was considered as persusive. It appears that the attention of the learned Judge was not drawn to the later Bench decision of the Allahbad High Court referred to above by which the view taken in the earlier case Bachchan Lal…Defdt.- v. Ram Asre…Plaintiff-. [3] was over ruled. Moreover the learned Judge drew a distinction between a case where a land lord who has to recover arrears of rent from his tenant while continuing to be the landlord transfers the actionable claim to a third person, and a case where a land-lord while transfering the property also transfers his right to recover the arrears of rent to the transferee It was held that in the first case, the arrears of rent will be recoverable as an actionable claim u/s. 130 of the Transfer of Property Act; in the second case, perhaps, the transferee may recover the arrears of rent u/s. 109 of the Transfer of Property Act without applying the proviso. It may be observed that in the present case the transfer of the arrears of rent in favour of the plaintiffs was made symultaneously with the transfer of the property by the sale deed Ex. 1. I may now consider the relevant provisions of the Rajasthan Premises [Control of Rent and Eviction] Act, 1950 by which the present case is governed. Sec. 3[iii] defines ‘landlord’ as below:

“3[iii] “landlord” means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant;

8. Sec. 13 inter alia provides as follows:

“Sec. 13. Eviction of tenants:—(1) Notwithstanding any thing 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 therefor to the full extent allowable by this Act, unless it is satisfied J—

[a] that the tenant has neither paid nor tendered the amount of rent due from him for six months.

9. A plain reading of sec. 13[1] [a] goes to show that no tenant is entitled to the protection unless he pays the rent due from him at the time prescribed in the Act. It does not provide that the landlord for the time being alone is entitled to recover possession if the rent is not paid. The definition of ‘landlord’ as extracted above makes the position abundantly clear. It lays down that ‘landlord’ means any person who for the time being is receiving or is entitled to receive the rent of any premises. Reading both the provisions together it is manifest that in order to be able to grant protection to the tenant against ejectment, the Court must be satisfied that the tenant had paid the amount of rent which was due to him, as contemplated by sec. 13[1][a]. It is not a question of transfer of benefit of default by the previous landlord to his successor but of the tenant claiming protection under the Act. In this view of the matter if the court is satisfied that the tenant has neither paid nor tendered the amount of rent due from him to the previous land lord who was entitled to receive the rent, he will be deemed to have incurred the liability to be ejected and would not be entitled to protection under the Act, irrespective of the fact that the premises along with the arrears of rent have been transferred by the previous landlord. Of course it is not the defendant's case that the previous landlord had waived such default.

10. As a result of the foregoing discussion I am of the opinion that the defendant tenant had committed default in payment of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. He could have saved himself from ejectment and avoided the consequences of the said default only by making an application and depositing the arrears of rent together with interest as provided in sec. 13(4) of the Act on the first date of hearing. As he did not do so, there was no other course open to the Court but to decree the suit for ejectment. The plaintiff's suit for ejectment has rightly been decreed and the judgment and decree of the appellate Court call for no interference. The appeal is, therefore, dismissed, but without any order as to costs.

11. Learned counsel for the appellant prays for leave to appeal in Division Bench, the prayer is rejected However, the appellant is granted time to vacate the premises in question.