GUPTA, J. - (1.) HEARD learned counsel for the appellant.
(2.) BY the impugned judgment, learned lower Appellate Court has decreed the suit for eviction, on the ground of second default i. e. the defendant has neither tendered nor paid rent for a period of six months, and earlier suit having been filed on the same ground, wherein on the first date of hearing the tenant had deposited the entire arrears of rent along with interest and costs, and consequently that previous suit was dismissed. I find from the impugned judgment that the certified copies of the previous suit, and the order dismissing that suit, on account of amount having been deposited, to be finding place on record as Ex. 1 and Ex. 4 respectively. It was contended by the learned counsel for the appellant, that this Court vide order dt. 22. 2. 2002 has noticed the contention, that though the rent was determined but by that order of rent determination, the trial Court consigned the record of the suit of the plaintiff, without holding that the tenant committed any default, as provided under sub-clause (a) of sub- section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereafter referred to as the Act, and therefore, according to the learned counsel, unless and until, the tenant commits any default in payment of rent, there cannot arise any occasion for asking or taking benefit under Section 13 (6) of the Act. Reiterating the submission, it was submitted, that the appeal does involve the above substantial question of law, and is required to be admitted. It was also submitted that the learned trial court has believed the evidence of the appellant about tender and payment of rent and the learned lower Appellate Court has come to its own conclusions against the appellant, without meeting the reasons given by the learned trial Court, therefore, also the finding is bad. The next submissions made is, that the learned court below has erred in holding the defendant to have committed default in payment of rent for a period of more than six months, in the present suit. The learned counsel for the respondent, on the other hand, supported the impugned judgment, and it was contended, that the appellant had earlier taken the benefit of Section 13 (6) of the Act, and therefore, the suit has rightly been decreed. It was also submitted, that the learned lower Appellate Court has rightly appreciated the evidence about payment and tender of rent, and has rightly found the defendant to be defaulter. I have considered the submissions, and have gone through the two judgments of the learned courts below.
(3.) SO far as the finding about tender and payment of rent by the appellant, in the present suit, is concerned, a look at the impugned judgment shows, that the learned lower Appellate Court was conscious of its limitations, and while deciding issue No. 3 learned lower Appellate Court has recapitulated the evidence, and finding the conclusions of the learned trial Court to be inherently unsustainable, has held, that though the learned trial Court has discussed the evidence, but the conclusions cannot be sustained, therefore, the learned lower Appellate Court proceeded to re-appreciate the evidence, and has thereafter decided the issue against the appellant. In my view, the learned lower Appellate Court was perfectly right, and the appreciation of evidence, as made, is also right, and does not require any interference, apart from the fact, that in my second appellate jurisdiction, it is not open to me to re- appreciate the evidence. Thus, the finding about the defendant being defaulter, in the present suit, requires no interference. Now, I take up the first contention. In substance the contention of the learned counsel for the appellant is, that in the earlier suit, which was based on the ground of default, and on the first date of hearing the defendant deposited the amount, which he may have deposited by way of abundant caution, and despite not being a defaulter, and may be that, therefore, that previous suit has been dismissed, but then, there is nothing on record to show, that the defendant was given the benefit of Section 13 (7) (as it then existed), and under Section 13 (6) as it exists now, which corresponds to old Section 13 (7) According to the learned counsel, it is only if that tenant had obtained such benefit, or benefit under Section 13-A, in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months, that the tenant can be denied the benefit. Thus, since there is nothing to show that the appellant had obtained the benefit under Section 13 (7) in the previous suit, the bar of the proviso to Section 13 (6) now, does not come against the appellant. ;