GUMAN MAL LODHA, J. - (1.) THIS is a second appeal by the tenant against the decree granted by the first appellate court on the ground of default.
(2.) TWO points have been urged by Mr. Saxena and the same are dealt with. It was argued that since before the copy of the plaint was given the Ordinance of 1975 came into force and therefore it was the duty of the court under section 13 sub-section (3) of the Rajasthan Premises Control of Rent and Eviction Act as amended by Ordinance 1975 to decide the question of arrears of rent etc. and allow time to deposit the same which was not done. In my opinion this question is squarely met by the Division Bench judgment of this court in Kishan Lal Sharma Vs. Prem Kishore (1 ). in which it has been laid down as under : "a suit for eviction which was already pending at the commencement of the old amended Act will have to be tried in accordance with the provisions of the old Act as if the amended Act had not been passed and, therefore the right and liabilities of the parties arising out of the tenants failure to deposit or pay the arrears of rent in accordance with the provisions of sub section (4) and (6) of the old Act must be determined on the basis of this old Act and the special provisions of Sec, 13 A of the amended Act. " In the case the earlier view of Hon'ble Justice D. P. Gupta in Jai Narain Vs. Meena Devi (2) was overruled in para 12. The second point argued by Mr. Saxena is that the suit was filed against the two tenants father and son and the suit was dismissed. The land lord filed an appeal but in the appeal the father was not made a party and only against the son the decree was sought. Mr. Kejriwal in reply to the above submitted that the facts are true but in appeal realising that the only tenant in the house is son the father was left out by the land lord and son respondent defendant never took any objection to it in the first appellate court. In view of this it was pointed out that there is no defect and even if it was there since no objection was taken and that judgment has become final, the same cannot be taken now. I am of the opinion that if the land lord was of the opinion that in-fact there is only one tenant who is in occupation he can leave the other person even if he was made a party earlier although he could run risk of other person resisted delivery of possession as a tenant in execution.
(3.) IN any case this point was not raised in the first appellate court and therefore it cannot be said that the judgment of the first appellate court raises any substantial question of law or suffers a from any substantial error of law. Consequently the appeal fails and is hereby dismissed with costs. Three months time is allowed to vacate the premises provided the appellant furnishes written undertaking within two weeks that he would give vacant possession of voluntarily on expiry of three months without any demour or protest. .;