PRAKASH TATIA,J. - (1.) Following substantial questions of law were framed by this Court 1 while admitting this Second Appeal on 18.12.1990 : (1) Whether the order of the trial Court dated 4.7.1986 striking out the defence of the defendant-appellant and judgment of the appellate Court dated 6.2.1987 could be challenged in the first appeal against the judgment decreeing the suit and now in the second appeal? (2) Whether the trial Court was justified in striking out the defence and the appellate Court to confirm it? (3) Whether the amount of rent of the months of June and July, 1982 was withdrawn by the plaintiff-respondent? If so, whether it amounted waiver of the default?
(2.) Brief facts of the case are that the plaintiff-respondent filed a suit for eviction against the defendant-appellant-tenant on the grounds of default in payment of rent and the personal bona fide necessity of the plaintiff. The trial Court determined the rent under section 13(3) of the Rajasthan Premises (Control of 15 Rent and Eviction) Act, 1950 by order dated 8.5.1981 and directed appellant-defendant to deposit the determined rent amount of Rs. 1,695.40 and pay monthly rent in future at the rate of Rs. 165/- per month, month by month, to the plaintiff or deposit the rent in Court.
(3.) When plaintiff found that defendant committed default in payment of 20 of the months, June and July, 1982, by not depositing the rent within the period, within which the defendant was required to deposit the rent as per the mandatory provision of Section 13(4) of the Act of 1950, the plaintiff-respondent submitted an application on 8.4.1985 under section 13(5) of the Act of 1950 seeking striking out of the defence of the defendant-appellant against eviction. The defendant in reply to application Ws. 13(5) submitted, that with the intervention of the plaintiff's advocate, dispute was settled between the plaintiff and the defendant and the plaintiff assured the defendant that he will withdraw the suit and the plaintiff accepted the rent of February, March, April and May months of 1982 by cheque from the defendant. The defendant believed on the assurance of the plaintiff that the plaintiff will in future also accept the rent from the defendant but the plaintiff did not accept the rent of the months of June and July, 1982 from the defendant. According to the defendant because of the sharp practise of the plaintiff, defendant could not deposit the rent of the months June and July but same has been deposited by the defendant in Court on 35 8.9.1982. The defendant, in the reply, prayed that delay in depositing rent for the months of June and July, 1982 may be condoned.;