A.K.MATHUR,J. - (1.) THIS Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge No. 1, Udaipur dated 26th November, 1987.
(2.) THE plaintiff filed a suit against the defendant for eviction from the premises on account of second default in payment of rent. The suit was contested by the defendant and it was alleged that plaintiff cannot get any benefit of his earlier suit and, therefore, he shall not be entitled to any decree on account of second default. The suit was decreed by the trial Court, and aggrieved against this, the defendant preferred an appeal and appeal was also dismissed by the appellate Court. Hence, the present second appeal. Mr. Mehta, learned counsel for the appellant has submitted that finding given by both the Courts below is not correct as the defendant has not committed the second default. Learned counsel has submitted that it is true that earlier suit No. 37/77 was filed and in that arrears of rent for a period from 1.5.1972 to 31.5.1974 was deposited on the first date of hearing under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, (hereinafter referred to 'Act'). Subsequently, a default was committed by not paying the rent month by month and a decree of eviction was passed in favour of the plaintiff, thereafter, an appeal was preferred by the defendant and that decree was affirmed. But, a review petition was filed before the appellate Court and it was pointed out that the defendant had paid the rent month by month and there was no default in payment of rent. The appellate Court accepted the review application and set aside the order of the appellate Court as well as of the trial Court and the suit was dismissed. Thus, learned counsel submits that there was no default on the part of the defendant. However, in second 1.11.1983 i.e. for 39 months. The learned counsel submits that this was one default for a period of 39 months and appellate Court has treated it to be 6 defaults at the interval of every 6 months is not correct.
(3.) MR . Dave, learned counsel for the respondent has submitted that in suit No. 37/77 there was arrear of rent from 1.5.1972 to 31.5.1974 but the plaintiff took the benefit of depositing the amount of first date of hearing, even if it is accepted that the earlier suit was dismissed but fact remains that the defendant has already been taken a benefit in earlier suit by depositing the rent on the first day, thereby saving from the penalty of striking out his defence. Learned counsel submits that he cannot avail a second benefit also. In this connection, learned counsel has invited my attention to proviso to sub-section 6 of Section 13 of the Act. Learned counsel has also invited my attention to the cases Sobhraj v. Banwarilal, (R.L.W. 1974 P. 251), Bhikam Chand v. Jugal Kishore, (R.L.W. 1979 P. 137) and Shyam Lal and another v. Upbhokta Sahakari Samiti Jodhpur, (A.I.R. 1983 Raj. P. 133).;