TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE plaintiff/respondent filed a suit for eviction of her tenant from the suit premises on the ground of default in payment of rent and personal bonafide necessity. The trial court vide judgment and decree dated 7. 2. 2002 dismissed the plaintiff's suit after holding that though the defendant has committed default in payment of rent but since the defendant is entitled to benefit under Section 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950'), as he has deposited arrears of rent and paid rent month by month during pendency of suit, therefore, the decree of eviction cannot be passed against the defendant on the ground of first default. Meaning thereby, the defendant was granted benefit of first default under Section 13 (6) of the Act of 1950. So far as ground of plaintiff's bonafide necessity is concerned, that was rejected by the trial court. Being aggrieved against the dismissal of the suit, the plaintiff preferred first appeal which was registered as CAD No. 9/2002. The first appellate court after hearing the parties vide order dated 19. 9. 2002 remitted the suit for trial on two issues. Those issues were about comparative hardship and partial eviction. Against the order dated 19. 9. 2002, a misc. appeal was preferred by the appellant/defendant before this Court which was registered as S. B. Civil Misc. Appeal No. 118/2003. Said misc. appeal was dismissed by this Court vide order dated 6. 7. 2004. Therefore, in pursuance of order of remitting the case to the trial court, the trial court proceeded to decide two newly framed issues. During this trial, the plaintiff moved an application under Section 13 (5) on which the trial court, while recording finding on the issues remitted by the first appellate court, recorded a finding that the defendant/tenant failed to pay the rent of 20 months during this period and, therefore, the defendant is not entitled to benefit under Section 13 (6) of the Act of 1950. It will be worthwhile to mention here that the trial court after remit, decided the two issues by judgment dated 15. 12. 2005 and prepared the decree sheet also on 4. 2. 2006. The defendant preferred regular first appeal (No. 11/2006) against the finding of the trial court recorded on two issues by judgment dated 15. 12. 2005 instead of filing any objections against the findings of the trial court. In this appeal, the defendant also assailed the finding of the trial court recorded on striking out of defence of defendant. The first appellate court dismissed the defendant's first appeal no. 11/2006, which was preferred against the judgment dated 15. 12. 2005 for which decree sheet was drawn on 4. 2. 2006, on the ground of delay.
(3.) THE first appellate court allowed the plaintiff's appeal no. 9/2002 and granted decree on the basis of default in payment of rent. So far as challenge to finding of the trial court about personal bonafide necessity of the plaintiff is concerned, that was not accepted by the first appellate court, thereby the issue of personal bonafide necessity has been finally decided against the plaintiff by both the courts below. Being aggrieved against the judgment and decree passed by the appellate court, the defendant/tenant has preferred this second appeal. Learned counsel for the appellant vehemently submitted that the appellant preferred appeal and also filed an application under Section 5 of the Limitation Act. The first appellate court did not consider any of the grounds mentioned in application under Section 5 and thereby committed an error of law. In fact, rejection of first appeal of appellant (appeal no. 11/06) is by a non-speaking order. In view of the above reason only, the judgment and decree of the first appellate court deserves to be set aside. ;