H.R. Panwar, J. - (1.) THIS civil second appeal under Section 100 C.P.C. is directed against the judgment and decree dated 24.7.1993 passed by Additional District Judge No. 2, Jodhpur (for short "the first appellate court" hereinafter) in Civil Appeal Decree No. 139/1992, whereby the appeal filed by the appellant - defendant against the judgment and decree dated 22.5.1987 passed by Additional Munsif No. 1, Jodhpur (for short "the trial court" hereinafter) in Civil Original Suit No. 181/1984, came to be dismissed.
(2.) I have heard learned Counsel for the parties. Carefully gone through the judgments and decree of the trial court as well as of first appellate court. I have also gone through the record of the trial court. It is contended by learned Counsel for the appellant that the original tenant was father of the appellant, namely, Nihal Chand. After his death, the appellant became statutory tenant in the rented premises. According to learned Counsel for the appellant, in earlier suit for eviction and recovery of arrears of rent filed by respondents -Dhan Raj and Anr. against the father of the appellant -defendant, namely, Nihal Chand in which the appellant's father Nihal Chand was granted benefit of Section 13(6) of the Rajasthan Premises (Control of Rent and Conviction) Act, 1950 (for short "the Old Rent Act" hereinafter) but so far as the appellant is concerned it was the first default by him and therefore, he is entitled for benefit under Section 13 (6) of the Old Rent Act. Learned Counsel appearing for the plaintiff - respondents contended that indisputably, the original tenant was Nihal Chand, the father of the appellant and Nihal Chand neither tendered nor paid the rent for rented premises for a continuous period of more than six months and therefore, the plaintiff -respondents filed a suit being Civil Original Suit No. 225/1979 before the court of Additional Munsif No. 1, Jodhpur, which came to be decided by judgment and decree dated 26.2.1981, Exhibit -1 and in that suit, it was held that provisional rent was determined under Section 13(3) of the Old Rent Act and the tenant -Nihal Chand paid the rent under Section 13(4) of the Old Rent Act. Issue No. 2 i.e. issue of committing the default in payment of rent came to be decided in favour of the plaintiff -respondents and against the respondent -tenant Nihal Chand. However, it being the first default of tenant -Nihal Chand, he was extended benefit of Section 13(6) of the Old Rent Act and suit came to be dismissed. Thereafter, the present appellant became a tenant on the death of original tenant -Nihal Chand and he too committed default of payment of rent and for that a suit was filed by the plaintiff -respondents before the trial court being Civil Original Suit No. 181/1984. The suit came to be filed on 11.1.1984 and in the said suit, in para 6 of the plaint, it has specifically been pleaded that father of the appellant -defendant committed default in payment of rent and in earlier suit, which came to be decided on 26.2.1981 vide Exhibit -1, he was extended the benefit of first default. In the written statement, the appellant -defendant pleaded his ignorance of the decision of the first suit against the original tenant -Nihal Chand. Be that as it may, a certified copy of the judgment and decree of earlier suit dated 26.2.1981, Exhibit -1 is on record. In the subsequent suit filed by the plaintiff -respondents against the present appellant, issue of default came to be framed i.e. the issue No. 2 as to whether the appellant -defendant committed a second default in payment of monthly rent of the rented premises and that issue came to be decided in favour of the plaintiff -respondents and against the appellant -defendant and on an appeal, the appellate court confirmed the finding of issue No. 2 holding therein that the appellant -defendant committed the second default in payment of monthly rent i.e. the appellant neither tendered nor paid monthly rent of suit premises continuously for more than six months' period. Thus, there is concurrent finding of facts recorded by two courts below that the appellant -defendant neither tendered nor paid the monthly rent of rented premises for a continuous period of more than six months.
(3.) LEARNED Counsel for the appellant failed to show from the record that the appellant either tendered or paid the rent continuously and has not committed default in payment of rent. The only contention raised by learned Counsel for the appellant is that though the appellant -defendant defaulted in payment of rent but that being his first default so far as the appellant -defendant is concerned, he may be extended the benefit of Section 13(6) of the Old Rent Act. In my view, this contention cannot be accepted for the reason that the benefit under Section 13(6) of the Old Rent Act is available to the tenant and once the tenant has already availed that benefit, even the tenant in succession is bound by such availing of benefit, in this view of the matter, I do not find any merit in the appeal.;