Amaresh Ku. Singh, J.
1. Heard the learned Counsels for the parties in Civil Suit No. 129/85 Doongar Singh v. Amar Singh. The learned Munsif and Judicial Magistrate 1st Class, Udaipur City (South), Udaipur vide his order dated 20th January, 1990 rejected the application of the defendant for condonation of delay in depositing of rent.
2. Feeling aggrieved by the order dated 20th January, 1990 the defendant filed an appeal which was disposed of by the Additional Civil Judge, (Senior Division) No. 3, Udaipur vide order dated 28th February, 1995. The learned Additional Civil Judge (Senior Division) dismissed the appeal filed by the defendant. Feeling aggrieved by the aforesaid judgments of the lower Courts the defendant has filed this Revision Petition under Section 115 of the Civil Procedure Code.
3. The facts and the circumstances of the case may be summarised as below : According to the petitioner, suit premises were taken on rent by late Shri Amar Singh who was the defendant in the case and who is represented by Smt. Ganeshi Devi and others. Non-petitioners instituted a suit against. Amar Singh for eviction. During the pendency of the suit provisional rent was determined under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act. On 9th February, 1988 non-petitioners filed an application before the trial Court praying that the defence of the petitioner (defendant) be struck out because he had not deposited the rent for the month December, 1986 in time and in place of depositing the rent on or before 15th January, 1988, deposited the same on 3rd February, 1987. In reply the petitioner stated before the lower Court that he had given the rent for the month of December, 1986 to non-petitioner No. 1 Dungar Singh but no receipt was given to him by Dungar Singh and when Dungar Singh did not give any receipt upto 31st January, 1987, as per advise given by his counsel he deposited rent in the Court on 3rd February, 1987. It was also stated by the petitioner (defendant) in his reply that rent for the month of December, 1986 was paid to Dungar Singh in presence of Shankerlal and Chandmal and that he did not commit any default in payment of rent. On 4th July, 1988 the petitioner (defendant) moved an application under Section 5 of the Limitation Act praying that delay in deposit of rent be condoned in view of the facts and circumstances stated by him. Dungar Singh (non-petitioner No. l) denied that rent for the month of December, 1989 had been paid to him.
4. The learned Munsif and Judicial Magistrate after hearing the parties came to the conclusion that the story about payment of rent to Dungar Singh was not reliable and was false and that default in payment of rent had been committed by not depositing the rent for the month of December, 1986 within time and that he delayed the deposit of rent from 17-18 days without seeking permission of the Court. Consequently, he rejected the application filed by the petitioner under Section 5 of the Limitation Act and struck out the defence in view of the provisions of Section 13(5) of The Rajasthan Premises (Control of Rent and Eviction), Act. The appeal which had been filed in the Court of learned District Judge, Udaipur was transferred to the Court of Additional Civil Judge (Senior Division) No. 3, Udaipur and the appeal was dismissed with cost by the learned Additional Civil Judge (Senior Division) No. 3, Udaipur, vide order dated 28th February, 1995.
5. The learned Counsel for the petitioner has submitted that under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act learned low- Court had discretion to strike out or not to strike out the defence of the petitioner and in view of the fact that the petitioner ' deposited the arreares of rent on 3rd February, 1987, the proper order on the part of the learned trial Court would have been to refuse to strike out the defence. He has placed reliance on the Judgment of this Court given in the case Ramesh Chandra v. Man Mohan Singh R.L.R. 1988 (2) Page 194. In that case Hon'ble Chief Justice J.S.Verma, held that striking out defence under Section 13(4) is only discretionary and not mandatory and that Section 5 of the Limitation Act can be applied to the deposit of rent under Section 13(5) of the Act. His Lordship referred to full bench decision of this Court in Vishandas v. Savitri Devi 1988(1) R.L.R. in which it was held that Section 13(5) of the Act is directory and not mandatory and that in suitable cases Court has power to extend the time for depositing the rent beyond the period prescribed under Section 13(4) of the Act. His Lordship, therefore, accepted the Revision and set aside the order passed by the lower Courts.
6. On the other hand the learned Counsel for the non- petitioners has submitted that revisional jurisdiction conferred by Section 115 of the Civil Procedure Code is limited and does not extend to correct errors of fact or the errors of law and that the errors contemplated by Section 115 of the Civil Procedure Code are the errors relating to breach of some provision of law or to material defects of procedure affecting the ultimate decision. In support of his submission he has relied on D.LF. Housing and Construction C.(P) Ltd. v. Sraup Singh and Ors. AIR 1971 Page 2324. In Para No. 8 their Lordship of the Supreme Court observed as under:
The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this Section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or in material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.
7. I have carefully considered the submissions made by both the parties. In view of the decisions of this Court, given in the case of Ramesh Chandra v. Man Mohan Singh R.L.R. 1988(2) page 194 and Vishandas v. Savitri Devi (R.L.R. 1988(1) page 1), it is well established that Section 13(5) of The Rajasthan Premises (Control of Rent and Eviction), Act is directory and not mandatory. In other words a discretion has been conferred upon the Court under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act to strike out defence if in the facts and circumstance of the case the Court feels it proper to do so. On the other hand if the circumstances of the case do not justify in striking out of defence then the Court may decline to strike out the defence. The discretion under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act being a judicial discretion, it is necessary that the Court should exercise this discretion in the matter of striking out defence in a judicial manner. Since both the lower Court have come to the conclusion that the story given by the petitioner regarding payment of rent for the month of December, 1986 to Dungar Singh is unreliable, this Court cannot interfere with that finding of the fact. The learned trial Court as well as learned First Appellate Court appear to have given much emphasis to the fact that the story advanced by the petitioner about payment of rent to Dungar Singh was not proved. It appears that they have failed to exercise judicial discretion under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act on above mentioned ground. There appears to be an error in the exercise of their judicial discretion under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act.
8. Section 3 of the Evidence Act clarifies all the finding of the facts into 3 categories. (1) Proved, (2) Dis-proved and (3) that which is neither proved nor dis-proved. The third category of cases described as not proved is wide enough to include all those cases which are neither proved nor dis-proved. It may be that a person may not be in a position to prove his case. He may not be having sufficient evidence with him to prove the fact alleged by him, or the evidence on which he proposes to rely may be destroyed or may be temperred with and there by it may loose its capability of proving the alleged fact or the rules applied for appreciation of evidence and for drawing inferences may be such as may be preventive them from proving his case. In all these cases merely because a person fails to prove his case, it cannot be said that his case has been dis-proved. To equate the cases which are not proved with the cases which have been dis-proved is such as error of law which can cause disaster in the administration of justice particularly in those cases when the inability of citizen to prove his case is used as a circumstance for drawing unwarranted inferences against him. The learned lower Courts were within their rights to come to the conclusion that in the facts and circumstances of the case they did not believe in the story advanced by the petitioner about the payment of rent to Dungar Singh. But that finding brings the case of the petitioner in the category "not proved". It cannot be said that the petitioner's story of having given rent to Dungar Singh was dis-proved. If the story of payment of rent to Dungar Singh cannot be said to be held as dis-proved, no adverse inference can be drawn against the petitioner in relation to exercise of discretion conferred by Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act. The learned trial Court and the learned Appellate Court have, therefore, committed an illegality which has resulted in denial of the benefits of discretion under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction), Act to the petitioner. The facts of this case are similar to the case of Ramesh Chandra v. Man Mohan Singh (supra) because the arrears of rent were deposited on 3rd February, 1987. It is, therefore, a fit case in which the orders passed by the trial Court as well as first Appellate Court should be set aside.
9. For reasons mentioned above this revision is allowed. The impugned order of the case of both the Courts below striking out the defence are set aside and the plaintiffs application may in this behalf is rejected. The defendant (petitioner) has deposited the rent for the month of December, 1986. No direction to deposited the rent is, therefore, necessary. In the circumstances of the case the parties should be directed to bear their own cost.
10. Since the case has been pending for long time the trial Court is directed to expedite the disposal of the case at an early date. Stay granted vide order 3rd May, 1995 is hereby vacated.