K.C.DAS GUPTA. J.

(1) IN a suit for ejectment instituted on 8/09/1958 the plaintiff who is the respondent before us now made an application under S. 13 (5) of the Delhi and Ajmer Rent Control Act. 1952 (Act No. XXXVIII of 1952). He prayed for order to be made on defendant tenant to deposit at the arrears of rent and duture monthly rent in accordance with law by the 15th of the following month. The arrears of rent were claimed to be Rs. 722/7/ upto the 30/06/1960. The original rent was stated to be Rs. 64/8.00 and with effect from 1/08/1959 the rent was claimed at Rs. 70.95 np.

(2) THIS application was resisted by the tenant who in his reply dated 1/08/1960 stated that the rate of rent had continued to be at Rs. 64-8-0 and only Rs. 516.00 was due at the rate of Rs. 64/8.00 as arrears upto 30/06/1960. He added that he was prepared to deposit it.

(3) THE Subordinate Judge 1st Class, Delhi, passed orders on the application on 1/08/1960. The relevant portion of the order ran thus :

"AS regards the application under S. 13(5) of the Rent. Control Act the defendant has no objection to deposit the arrears of rent and future rent month by month at the rate of Rs. 64/8.00 per month. It is clear that under S. 13(5) an order can only be passed at the rate at which the rent was being last paid and no increase can be taken into consideration. I order accordingly."

(4) ON 13/12/1960 the plaintiff applied to the Sub-Judge staling that the de tendants had defaulted in the deposit of rent for the month of September 1960 which was due to be deposited by the 15/10/1960 and also rent for the month of October 1960 which was to be deposited by the 15/11/1960. He prayed that the defence of the defendant against ejectment should therefore be struck out.

(5) CONTESTING this application the de tendant pleaded that no valid order has been made under S. 13 (5) and in any case no de fault had been made by him.

(6) THE learned Subordinate Judge rejected both these pleas and had held that there had been default in complying with the order made under S. 13 (5) and ordered the defence to be struck off.

(7) AGAINST this order the tenant appealed. The court of Appeal (the Senior Sub-Judge, Delhi) agreed with the Trial Judge that a valid order had been made under S. 13 (5) and that the tenant had defaulted in making payments in accordance with the order. The court also rejected the tenants contention that the Trial Judge had a discretion in the matter and should have exercised that discretion in favour of the tenant by extending the time for payment of the rent. Relying on a decision of the Punjab High court in Kanahiya Lal Balkishan Das v. Om Prakash Sharma. Civil Revn. No. 583 of 1958 D/23/10/1962 (Punj) the learned Senior Sub-Judge held that the court could not in any circumstances extend the time for payment fixed in the order under S. 13(5) and could not condone the default. On this view he dismissed the appeal.

(8) THE tenant then approached the High court of Punjab with a petition under S. 35 of the Delhi and Ajmer Rent Control Act, 1952. One of the grounds taken before the High court was that the appellate court had ingnored S. 57 of the Act of 1958. The High court however dismissed the application summarily.

(9) THE present appeal has been filed against the High courts order after obtaining special leave of this court.

(10) THE main contention urged in support of the appeal is that if the appellate court had taken into consideration S. 57 of the 1958 Act it might have rejected the planintiffs prayer for striking out the defences. Section 57 of the 1958 Act provides in its second subsection that in spite of the repeal of 1952 Act all suits and proceedings pending under that Act would be disposed of in accordance with its own provisions but subject to the provisa that "in any such suit or proceeding for fixation of standard rent or for the eviction of a tenant from any