SARJOO PROSAD, C. J. - (1.) THIS is an appeal preferred by the defendant in a suit for rent and ejectment.
(2.) THE plaintiff, who is the respondent to the appeal, appears to have rented out a shop situate in Sikar near a Darwaja known as Surajpol, to the defendant for a period of six months. THE rate of rent mentioned was Rs. 7/- p. m. THE defendant even after the expiry of the period did not either vacate the shop or pay the rent due and the plaintiff was, therefore; compelled to institute the suit for eviction of the defendant after serving a notice to quit. In the suit in question, arrear of rent to the tune of Rs. 216/- was claimed from the defendant. THE allegation of the plaintiff was that since the tenancy had expired the defendant was in the position of a trespasser and, therefore, he was liable to be ejected. THE defenant contested the suit. He asserted that he was not a trespasser and that he was entitled to protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. He further contested the allegation of the plaintiff that he had not paid any rent. THE trial court decreed the claim for rent but did not grant any relief to the plaintiff for eviction of the defendant. Against the decree there was an appeal to the lower appellate court which has allowed the appeal and decreed the suit in full directing the defendant to be evicted from the property in suit. The learned counsel for the appellant has strenuously urged that the court below was in error in not giving the defendant the benefit of sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act. According to the learned counsel, the suit as instituted was based on the allegation that the defendant was a trespasser and therefore he could not be evicted on the ground that there was default in payment of rent by the defendant and he should not have the benefit of the provisions of the said Act. It is further argued that the court below appears to have ignored the case of the defendant that apart from tendering the rent due under money orders the defendant had in person offered to pay rent but that was not accepted by the plaintiff. In my opinion, both these points are misconceived and do not bear scrutiny. It is true that the plaintiff claimed eviction on the ground that the defendant was a trespasser ; but even assuming that the defendant fell within the meaning of a tenant in the definition given in the Act, it was for the defendant to establish that he was entitled to protection under the provisions of the Act. In this case there is a clear finding by the court below that rent was due for many months and the defendant continued to make default in payment of rent on three occasions within a period of 18 months. In fact, according to the learned Judge the default actually was on more than three occasions within that period, because rent for 30 months was found to be due from the defendant. In view of this finding, the learned Judge applied the proviso to sub-sec. (4) of sec. 13 of the Act and held that the defendant was liable to be evicted. The proviso runs as follows - "provided that a tenant shall not be entitled to the benefit of protection against eviction provided by this sub section if he has made default in the payment or tender of the amount of rent due from him for any two months on three occasions within a period of eighteen months. " The proviso was inserted by sec. 2 (b) (ii) of Act No. XXIV of 1958 on 26th May, 1958 by way of amendment. It is not disputed and it cannot be disputed that the proviso does apply to the circumstances of the present case. If the proviso had not applied, then of course it could have been very well argued that even upto the stage of the suit or the decree, the defendant could deposit the amount due, which it is said, has been deposited, and avoid forfeiture of the tenancy; but now that the proviso is there, he cannot have the benefit of sub sec. (4) of sec. 13 and the court below was justified in applying the proviso against him. The other contention of the learned counsel that the amount had been tendered not only by money order but also in person and the evidence on that aspect of the matter should have been discussed by the court below is met by the fact that in the written statement the defendant only pleaded that thrice money had been sent by money order. These dues related to periods admittedly much longer than two months at a time and there is no allegation that any tender was made personally. In the circumstances, I do not see any reason why there could be any evidence on the point of personal tender and the absence of any discussion on the point is, therefore, natural. The parties in the circumstances could not have urged any such contention before the court of appeal below which was the final court of facts. In my opinion, the decision of the court below is correct and must be upheld. The appeal is without any substance and is dismissed with costs; but the defendant is given three months time to vacate the premises and give vacant possession to the plaintiff. .;