PRASAD, J. - (1.) HEARD.
(2.) THE appeal arises out of a decision of a suit instituted by the learned on the basis of second default. In this appeal, in fact, to determine whether any substantial question of law arises in this appeal requires a journey through the facts. Between landlord and tenant, the present appeal was filed in relation to a second suit based on default. The earlier suit was instituted and after giving benefit of first default, the same was dismissed on 25. 10. 90. The appeal filed in this regard was also dismissed on 21. 01. 97 and the Court observed that any deposit made under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as `the Act of 1950'), until decision to that suit will be counted towards the deposit of rent in that suit. This suit conclusively determined that the tenant had committed first default. Second suit was filed on 7. 5. 91 between the parties. This suit was dismissed, however, in appeal, the matter was remanded back. After remand, the rent was determined in second suit on 6. 8. 99 as per the mandate of Section 13 (3) of the Act of 1950. Admittedly, no rent was deposited as determined by the order dated 6. 8. 99. The case of the tenant appellant was that since, he had deposited advance rent in the first suit, therefore, the amount deposited in the first suit should be taken note of in the second suit. It should be held that no default was committed by the tenant. The court considered that in second suit, the rent, as determined, has not been deposited. Therefore, defence against the eviction was struck off. Both the orders i. e. rent determination and striking off of the defence was challenged in appeal un-successfully by the appellant. The decision in suit and in first appeal went against the appellant. Hence, this second appeal. Learned counsel for the appellant asserted that the order of deposit and order of determination of rent was in complete as it has not taken note of the deposit made by the tenant in the first suit and therefore, it was erroneous. It requires to be interfered in second appeal by this Court, so also, the order of striking of the defence because there was a deposit made. Learned counsel for the tenant respondent contested the arguments of the learned counsel for the appellant and stresses that these orders were not challenged before the first appellate court and therefore, the same cannot be challenged in second appeal. More particularly, these orders have not been filed while filing second appeal. It has also not been explained as to why these questions were not raised before the first appellate court. Further, learned counsel for the respondent submitted that the order of determination of rent was by consent and no appeal could have been filed against a consent order under Section 96 CPC. This was the order of appellate court while deciding the validity of the order of determination of rent. This question, without having been challenged in the regular first appeal by the tenant before the learned District Judge, cannot be made the subject matter of challenge in second appeal, more particularly, when the order was by consent.
(3.) I have considered the rival submissions. The order of determination of rent and order of striking of the defence was not challenged before the regular first appellate court. The memo of first appeal was referred for confirmation. In the prayer, in the appeal, there is no mention of these orders. Copy of these orders have not been filed on the record of this second appeal, therefore, it cannot be considered that any challenge is sustainable at the instance of the learned counsel for the appellant in second appeal against these two orders. It is also noteworthy that there is no prayer in the prayer clause of second appeal against there orders. Once the order of determination of rent is upheld and striking of the defence is also not interfered, then what remains to be seen is whether the appellant can be permitted to urge that the suit could not have been decree without establishing that there was a second default? Learned counsel for the appellant has relied on a case decided by this Court in B. B. Bhalla vs. Rameshwar Kishore Bahwar (1), that burden still lies on the plaintiff to show that there was second default committed and since, there is no clear finding of second default and there being deposit made for that period by the appellant in the first suit, there decree could not have been passed. I have looked into the merits of the case. The question of deposit made by the appellant in earlier suit will be dealt with hereinafter but as far as the burden to be discharged by the plaintiff is concerned, after the striking off the defence, if the defendant evidence is not look into and evidence of plaintiff is read then, there is a clear assertion that the tenant has not made deposit as required under the law. This fact is even admitted by the defendant that no deposit was made after determination order because he wanted adjustment of earlier deposit. Thus, burden of proving the second default by leading evidence is discharged and it cannot be said that the aforesaid judgment has any application in the facts of this case. ;