BHAGWATI PRASAD, J. - (1.) The Court of Additional District Judge No. 1, Jodhpur made the instant reference to this Court under Section 113 of the Code of Civil Procedure (referred to hereinafter as 'C.P.C.') and Order 46, Rule 1, C.P.C. as the said Court was seized of a Misc. Appeal in which the following question was involved :- "Whether, in a suit for eviction under Sec-tion 13(1)(a) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as Rent Act) on the ground of alleged second default, if it is expected from the trial Court, to provisionally determine the rent as per provisions of S. 13(1) of the Rent Act." While making the aforesaid reference, the Court of Additional District Judge took into consideration various judgments of this Court i.e. Hanuman Prasad v. Gardilal, 1973 Raj LW 584 : (AIR 1974 Raj 41), wherein a learned single Judge observed as under :- "It may be pointed out that sub-sections (4) and (5) have been introduced for the benefit of the tenant so that in case of first default he may protect himself against ejectment by making the required deposit or payment as provided therein. But in case of a tenant who has committed a second default, as mentioned in the proviso to sub-section (7) no such benefit is available. It is a principle of jurisprudence that rights and liabilities are correlative. Consequently if a certain provision of law provides a benefit to a class of persons on performance of the act mentioned therein the penalty prescribed for non-performance of the act cannot be meted out to a person who cannot avail of the benefit of such provision. It would, thus be incongruous to say that even though the defendant cannot save himself from ejectment by making the deposit or payment under sub-section (4) or sub-section (5) of Sec. 13 of the Act, yet he is liable to have his defence struck out on account of non-compliance of the same. It appears to me therefore that sub-section (6) of Sec. 13 cannot be pressed into service against a tenant to whom the benefit under sub-section (7) is not available. Since the case of the defendant falls under the proviso to sub-section (7), the penalty provided under sub-section (6) of striking out the defence cannot be meted out to him."
(2.) In this regard, the second case considered by the said Court was in the matter of Hanspuri v. Bhanwar Lal, 1987 Raj LW 395, wherein this Court observed as under :- "The exercise of determination of the rent under Section 13(3) in such a second suit would be futile inasmuch as the proviso to sub-section (6) of Sec. 13, clearly provides that the tenant will not be entitled to the relief under sub-section (6) if he has already taken advantages of it in a previous suit."
(3.) The said Court also considered the judgment in Ram Lal v. Goverdhan Lal, (1988) 1 Rajasthan LR 669, wherein this Court held as under :- "This scheme of Section 13 of the Act clearly provides for determination of rent under Sec. 13(3) of the Act, when the suit is on the ground of default in payment of rent with or without any other grounds. This order under sub-section (3) of Section 13 is to be passed either on the first date of hearing or not more than three months after the filing of the written statement and in any case before the framing of the issues. In other words such an order is to be passed as early as possible after the service of summons on the defendants. This determination is not subject to the proviso to sub-section (6) of Sec. 13. In other words whether the tenant would be able to get protection of sub-section (6) of Sec. 13, or not, is not to be looked into at the stage of determining rent under sub-section (3) of S. 13. The determination of rent under Sec. 13(3) of the Act and payment of the same would not by itself entitle the tenant to protection against eviction. The availability of protection to him would depend upon other conditions. Thus determining the amount under Section 13(3) of the Act and allowing the tenant to deposit the same would not confer any right on him which would entitle him to get the suit of the landlord dismissed on the ground of default. This matter is dependent on different considerations. It may be that in some cases the Court is not able to decide the question as to whether the tenant has obtained benefit of Sec. 13(6) on a previous occasion or not before the issues are framed and in such a case the Court should not postpone the framing of the issues merely because the question of availability of protection to the tenant has not been decided. What the Court should do is to determine the rent under Sec. 13(3) and take up the matter of protection under Sec. 13(6) later on at the time of the decision of the suit. In my view the provisions of Sec. 13(3) and (4) are applicable to all suits for eviction which are on ground of default, irrespective of whether it is the first suit for default or a second suit for default or protection under Section 13(6) or 13A has been taken on a previous occasion or not. The suit has to be under Section 13(1)(a) with or without any other ground in order to attract Section 13(3) of the Act. Determination of the rent under Section 13(3) cannot cause any prejudice to the plaintiff-landlord in the second suit. On the contrary it would avoid the situation where it is subsequently held that the tenant had not taken benefit of Sec. 13(6) or 13-A on a previous occasion and the rent has not been determined and deposited so now in the subsequent suit, how to protect the tenant against eviction in that case? He would be denied the right of protection because the Court did not determine the rent under Sec. 13(3) of the Act. Determination of rent has nothing to do with the question of availing of the benefit or protection against eviction. If in the present case, the amount of rent due is determined along with interest under Sec. 13(3), and deposited by tenant, then merely because of this deposit he would not become entitled to protection under Section 13(6) of the Act if such benefit has already been obtained by him on a previous occasion. Hence in not determining the rent the Courts below have refused to exercise jurisdiction vested in them which was necessary to be exercised.";