MISRA, J. - (1.) A decree of eviction has been passed against the defendants/appellants herein after the trial court as also the first appellate court recorded a finding against them that they are guilty of default in payment of rent for more than 6 months due to which their defence was struck off by the trial court. The suit was consequently decreed, which was upheld by the first appellate court. This second appeal has been preferred against the concurrent judgment and decree passed by the two courts below.
(2.) LEARNED counsel for the appellants sought to raise a substantial question of law in this appeal by contending that although the defence of the defendant-appellant on the ground of non-payment of rent was struck off by the trial court, they could not have been precluded from examining the witnesses and contesting the other ground of eviction which was of non-user. In support of his submission he has placed reliance on a judgment of the Division Bench Ramesh Chand Pandey & Anr. vs. Babulal & Others (1), wherein a question was referred to the Division Bench by a learned Single Judge of this Court (as he then was) to determine whether the striking off the defence of a tenant on one of the grounds against eviction would apply to all grounds of eviction taken by the plaintiff-landlord or such striking off would be limited to the defence against eviction on one of the grounds only specified in Section 13 (1) (a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter shortly referred to as `the Rajasthan Act ). The reference was answered by the Division Bench vide judgment referred to hereinbefore by holding that the order passed u/sec. 13 (5) of the Rajasthan Act striking out the defence of the tenant against eviction would certainly apply to the grounds of eviction specified in Sec. 13 (1) (a) of the Rajasthan Act. Learned counsel for the appellant has clearly missed that even relying upon the judgment of the Division Bench the defendant-appellants cannot be said to be having any case in their favour since the defendant-appellants admittedly had not paid the required rent of 6 months even though the provisional rent was already determined on the date when the defence was struck off and even thereafter had not paid it for a long time. It was not the case of the defendant-appellants anywhere before the two courts below that they were not in arrears for non- payment of 6 months rent so that they could be held not guilty for default in payment of rent and thus get away with the decree of eviction on the ground that if they had the opportunity to cross-examine the plaintiff and his witnesses, they would have been in a position to prove beyond reasonable doubt that they were not defaulters. Besides this, the judgment relied upon by the counsel for the appellant also is of no assistance to them since the aforesaid judgment itself holds that striking out the defence of a tenant against eviction would surely apply to the grounds of eviction specified in Section 13 (1) (a) of the Rajasthan Act and the defendant-appellants admittedly being a defaulter under this clause on the date when their defence was struck off, it is not open for then to challenge the judgment and order of the courts below on the plea that a decree of eviction should not have been passed as they had a right to press the suit even if their defence was struck off. Besides all this, even if the defence is struck-off only for one of the grounds, the same cannot affect the decree which was passed as consequence of striking-off the defence of the tenant as even one of the grounds can be sufficient for decreeing a suit or dismissing it. The second appeal thus has no merit and hence it stands dismissed at the admission stage itself. .;