The landlord's acceptance of delayed rent payment constitutes a waiver of the default, and the defense against eviction cannot be struck off.

Judgment Dwarka Prasad, J.-The only question which arises in this revision petition is as to whether the defence against eviction of the defendant has been rightly struck off by the learned Civil Judge, Jhalawar.

2. Thefacts in controversy are that arrears of rent up to Jan. 30, 1981 along with interest thereon were determined by the trial Court on Jan. 20, 1981. The tenant was allowed three months’ time to make payment of the arrears of rent so determined. The rent for the month of Feb. and March 1981 was payable on or before the 15th of March and 15th of April 1981 respectively. The tenant not only paid the arrears of rent as determined by the Court, but also rent for the months of Feb. and Mar. on April 20, 1981. The plaintiff-landlord accepted the amount. Thereafter on the next day i.e. April21, 1981, the landlord filed an application under Sub-section

(5) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as ‘the Act’), for striking off the defence of the tenant against eviction. The trial Court held that the plaintiff had waived the default on the part of the defendant-tenant in respect of payment of rent for the months of Feb. and Mar. 1981 and refused to strike off the defence of the tenant defendant against eviction. Learned Civil Judge however took a different view. The appellate Court observed that the trial Court had granted time up to 20th April, 1981 to the tenant defendant only for depositing” the overdue rent together with interest thereon, as determined by the order dated Jan. 20, 1981 but the rent for the subsequent months of Feb. and Mar. 1981 should nave been deposited by the 15th of the next succeeding month. The first appellate Court held that as the rent for subsequent months of February and March was not paid or deposited by the tenant by 15th of March and 15th April respectively, the landlord was entitled to an order under Section 13(5) of the Act, striking off his defence against eviction. In doing so, the learned first appellate Court totally failed to take into consideration that the principle of waiver was applicable in this case, inasmuch as the rent for the months of Feb. and Mar. 1981 was although not paid at the stipulated time as provided by law, but the same was accepted by plaintiff-landlord on April 20, 1981, when the said amount was tendered along with the arrears of rent and interest, as determined by the trial Court by its order dt. Jan. 20, 1981. The principle is well established that the plaintiff could waive the benefit or advantage which accrued to him on account of non-payment of month by month rent by the defendant tenant during the pendency of the suit for eviction.

3. In Bundu vs. Hasmat, AIR 1972 Raj 238, it was held that the provisions regarding monthly payment of rent during the pendency of the suit have been incorporated in the Act for the benefit of the landlord and no question of public policy is involved therein. As such, there was no bar for the landlord in waiving his right or benefit contemplated by the provisions of Section 13(3) and 13(5) of the Act.

4. The same principle was applied by this Court in the case of Jagganath vs. Jani Ram, 1981 WLN 379: (AIR 1981 Raj 233), where the plaintiff had voluntarily withdrawn the amount deposited by the tenant towards the arrears of rent during the pendency of the suit, although the amount was paid beyond the period stipulated under the Act.

5. In Ratanlal & Jetmal vs. Ramlal, 1981 WLN 442 a similar view was taken that the plaintiff could waive the benefit or advantage of the right which has accrued to him on account of the failure of the defendant to deposit rent month by month during the pendency of the suit for eviction, on account of default in payment of rent.

6. Thesame view was again taken by this Court in Madan Mohan vs. Madhusudan, 1983 Raj LW 585. In Sri Ram vs. Hua Bai, (D. B. Civil Second Appeal No. 68/1974 decided on 5-5-83):(reported in AIR 1984 NOC 24) a Divisi

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