The provisions of Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 are directory and not mandatory, and the court has the discretion to condone the delay in depositing the rent if it is not wilful or contumacious.

1. - Both these revision petitions involve dispute in relation to striking out of the defence of the tenant M/s. Laxmi Tara Calenders, who is the tenant in one revision petition of Smt. Shanti Devi Borana and in another revision petition of Paru Lal. Both these revision petitions have identical facts and, therefore, they are decided by this common order.

2. The tenant M/s. Laxmi Tara Calenders was proceeded against by its aforesaid landlords for seeking a decree of ejectment against it. While the suit was pending the rent was determined on 13.12.1989, the rent was paid on the date of determination itself and subsequently the rent continued to be paid regularly. However, the rent for the months of January, February and March, 1993 was deposited on 26.4.1993. Therefore, there was more than two months delay in the deposit of the rent for the month of January, 1993, more than one month's delay in the deposit of rent for the month of February, 1993 and more than 11 days delay in the deposit of rent for the month of March, 1993.

3. Learned counsel for the petitioner has urged that it is not a case of wilful or contumacious conduct in delaying the payment of rent on the part of the petitioner. The delay is only technical. Before the application for striking out of the defence of the defendant tenant was filed on 28.7.1993, the rent had already been deposited i.e. on 26.4.1993.

4. Learned counsel for the petitioner has placed reliance on a decision of the Hon'ble Supreme Court in M/s. B.P Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and another AIR 1987 SC 1010 wherein it has been held as under:

"In this case.the default was not one of non-payment of the arrears or the rent for the subsequent period. The default pertained to belated payments of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature."

5. Learned counsel for the petitioner has urged that following this Supreme Court decision this Court in M/s. Sunmoon Stationers v. Banshi Lal 1993(1) WLNB 231 has also held that Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is not mandatory and is only directory and has further held that delay in depositing the rent can always be condoned.

6. In Bhagwan Das v. Moorti Mandir Ganeshji Dhanroopji 1991(1) RLR 619 , this Court has held that it is only when the court comes to the conclusion that default in complying with order passed by it under Section 13(3) was wilful and contumacious that the court can strike out the defence.

7. Learned counsel for the petitioner has further argued that the word 'contumacious' has a definite connotation contained different law dictionaries. The petitioner can at best be said to be negligent in not depositing the rent in time for the months of January, February, March, 1993 but by no stretch of imagination it can be said to be a contumacious conduct. The term 'contumacious' has been defined in various law dictories as below :

Black's Law Dictionary:

Contumacious conduct:

"Wilfully stubborn and disobedient conduct commonly punishable as contempt of Court."

Oxford :

Contumacious:,

"Obstinately disobedient to authority stubbornly perverse, wilfully disobedient to the summons or orders of a court."

Webster:

"perverse in resisting authority, stubbornly disobedient, rebellious irreconcilable."

8. Therefore, the learned counsel urges that nothing can be seen in the conduct of the petitioner that he has committed a contumacious act in late depositing the rent for the months of January, February, and March, 1993.

9. Learned counsel for the respondent has joined the issue and has urged that earlier when the defence of the petitioner was struke off the matter was remanded back with the direction to consider the question of condonation of delay and thereafter the petitioner has filed an application under Section 5 of the Limitation Act otherwise he was indifferent and has not filed any application for condonati