TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE appellant is aggrieved against the judgment and decree of the trial Court dated 18. 4. 1985 by which the suit of the plaintiff for eviction of the defendant from the suit premises was decreed on the sole ground of default in payment of rent for six months of the period immediately preceding the filing of the suit. THE trial Court before decreeing the suit, struck off defence of the defendant under Section 13 (5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short "the Act of 1950"), as the defendant failed to pay the rent during pendency of the suit in time. THE judgment and decree of the trial Court dated 18. 4. 1986 has been upheld by the first appellate Court by judgment and decree dated 22. 7. 1986. Brief facts of the case are that plaintiff filed the composite suit seeking eviction of the tenant on the grounds, namely, default in payment of rent, sub-letting of the suit- premises by the tenant and the personal bonafide necessity of the landlord. Since one of the grounds for eviction of the tenant was default, therefore, the trial Court determined the arrears of rent by order dated 23. 1. 1978 and directed the tenant to either pay or deposit the rent in the court. At that time both the parties agreed that arrears of rent may be calculated from the mon. 03. 1977 despite the fact that the plaintiff filed the suit for eviction of the tenant with the allegations that the tenant has not paid the rent since January, 1977. The plaintiff's plea that rent in the defendant is due from January, 1977 was recorded in the order but it appears that to avoid any complication, the plaintiff agreed for determination of rent from March, 1977 and by the order, the court determined the interim rent starting from March 1977. As per Section 13 (4) and (5) of the Act of 1950, the tenant was under obligation to deposit the rent, arrears of rent within period of 15 days from the date of determination or within such further period not exceeding three months, as may be extended by the Court. The tenant was under statutory obligation to deposit the subsequent rent during pendency of suit, month by month within a period of 15 days of each succeeding month of his tenancy. This period also could have been extended upto the period of further 15 days. After determination of the rent, the tenant started depositing the rent. The suit proceeded and the trial Court framed the issues on 21. 5. 1979 and thereafter on the plea taken subsequently by the defendant, new issue No. 6 was also framed by the trial Court on 16. 8. 1884. The newly framed issued was on the basis of the plea taken by the defendant under Section 14 (3) of the Act of 1950 which bars the suit of the plaintiff on the ground of personal bonafide necessity if filed within five years from the date of letting out of the premises for commercial purpose. The plaintiff led his evidence and thereafter the defendant led his evidence. The trial Court allowed the plaintiff to produce evidence in rebuttal. Then again evidence of the plaintiff and his witnesses was recorded in the trial Court. Before the trial Court, the plaintiff submitted application under Section 13 (5) of the Act of 1950 on 9. 4. 1981. By this application, the plaintiff submitted that the defendant did not deposit the rent in time as required under Section 13 (4) of the Act of 1950. Therefore, the defendant's defence be struck off. No reply to this application was filed by the defendant and the trial Court after hearing both the parties, by order dated 27. 7. 1982 held that the defendant has not paid the rent as required under Section 13 (4) of the Act of 1950, therefore, he is not entitled to put forward his defence against eviction on the ground of default. It appears that order dated 27. 7. 1982 was not challenged by the defendant and, therefore, defendant's defence against the eviction on the ground of default could not have been looked into and was not looked into by the courts below.
(3.) THE plaintiff though led his evidence on all issues but during course of arguments before the trial, the plaintiff did not press all other issues except issue on the ground of default. Meaning thereby, the plaintiff's suit remained only on the ground of default. Since the defence of the defendant was struck off by the Court and the trial Court held that the defendant committed default in payment of rent for more than six months for the period prior to filing of the suit by the plaintiff, therefore, the plaintiff is entitled for decree of eviction of the defendant-tenant on the ground of default under Section 13 (1) (a) of the Act of 1950. It will be worthwhile to mention here that before the trial Court, the defendant during course of arguments, took a plea that the plaintiff has withdrawn the rent from the court which was deposited by the tenant after delay, therefore, by his conduct, the plaintiff has waived his right to seek eviction on the ground of default. The trial Court rejected the defendant's said plea and thereafter decreed the suit. The defendant preferred regular first appeal against the judgment and decree of the trial Court. In the memo of appeal, the defendant-tenant submitted that the defendant-tenant deposited the rent in time, therefore, the trial Court committed serious error of fact as well as error of law in striking off the defence of the tenant-defendant. It was also submitted that since the rent was withdrawn by the plaintiff, therefore, he has waived his right to seek decree for eviction on the ground of default. The first appellate Court after upholding the finding recorded by the trial Court also took note of the alleged further defaults committed by the tenant during pendency of suit. However, the first appellate Court even after taking note of the contention of the plaintiff about further defaults of the tenant, did not record any specific finding on the defaults committed by the tenant. However, since the findings of the trial Court was upheld by the first appellate Court, the first appellate Court dismissed the appeal of the appellant by the judgment and decree dated 22. 7. 1986. As stated above decree was passed only on the ground of default as all other grounds taken by the plaintiff were withdrawn by him. ;