Bapna, J. - (1.) THIS is a second appeal by the defendant in a suit for recovery of refit and ejectment. The respondent Tulsiram instituted the present suit in the court of Munsif Bikaner on 11th August 1952 on. the allegation that the defendant Bhagwati-prasad was originally a tenant in respect of certain premises on Rs. 7/- per month which rent had been increased by consent of parties in November, 1949 to Rs. 10/- per month. It was alleged that the defendant paid the rent up to end of April, 1950, but did not pay any rent thereafter. He claimed the arrears of rent from May, 1950 to July 1952 (27 months) namely Rs. 270/- and prayed for ejectment. It was alleged that the plaintiff also gave notice to the defendant on 2nd May 1952, but no reply was received.
(2.) THE defendant pleaded that he had paid the rent up to 1st December, 1951 and thereafter sent the rent for two subsequent months by money-order, but the plaintiff refused to receive payment. It was alleged that the rent was only Rs. 7/- per month which the defendant was prepared to pay from 1st December, 1951. He also deposited Rs. 400/- on 7th September 1953 in court towards the plaintiff's claim. THE trial court after evidence came to the conclusion that the plaintiff had failed to prove the increase in rent from Rs. 7/- to Rs. 10/- and that the rent was due only from 1st December, 1951. It held that the rent due from 1. 12. 1951 till the date of the judgment i. e. 30th April 1954 amounted only to Rs. 203/-, while the defendant had deposited Rs. 400/- out of which Rs. 300/- had been paid to the plaintiff and the plaintiff was liable to make a refund of Rs. 97/ -. It accordingly dismissed the suit. On appeal, the learned District Judge of Bikaner while agreeing with the finding of the trial court that the plaintiff had failed to prove the increase in rent did not rely on the evidence of the defendant that payment of the rent had been made till 1st December, 1951. He accordingly held that the defendant had become defaulter in the payment of rent from 1st May, 1950 and not only liable to pay the arrears, but had also become liable to ejectment. He held that the deposit of Rs. 400/- did not protect the defendant from ejectment as the deposit was not made on the first hearing and further the protection was not available because under the amended law, the defendant had become a defaulter on more than three occasions for a period of more than two months at a time within a period of 18 months. THE defendant has come in second appeal. It was argued by learned counsel for the appellant that an adverse inference should have been drawn against the plaintiff because of the non-production of the accounts of rent paid by the defendant. The plaintiff had denied that he kept any account and the production of a copy of an account alleged to have been kept by the plaintiff in previous years 1942-43 in respect of some other tenant filed in another case Tulsiram vs. Sukhram became irrelevant when plaintiff was not cross-examined with reference to that account. It is possible that the plaintiff may have maintained some sort of account in 1943, but did not maintain any account subsequently, because the plaintiff says that the tenants used to get entries made by the landlord in bhoras. The learned District Judge has rightly observed that there was previous litigation between the parties and the case went up to the High Court of Bikaner and it was not expected that the defendant would not take a receipt for any amount paid by him. Another damaging fact against the defendant is that the notice was given by the plaintiff on 2nd May, 1952 and it is alleged by the plaintiff that he had demanded the arrears of rent for 27 months, but the defendant did not give any reply. The acknowledgment proved to be in the handwriting of the defendant is on the record. There was thus ample evidence for the lower court to come to the conclusion that the defendant had committed default in the payment of rent from May, 1950 to July, 1952. As to the benefit of first proviso to Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the finding of the District Judge that the amount was not paid on the first date of hearing is not correct. It was paid on the 7th September, 1953 which was the first date of hearing fixed for the filing of the written-statement. This however does not end the matter because the application by which the amount was tendered is a conditional one. The defendant denied that there were any arrears beyond 1. 12. 1951. He also denied his liability to pay costs. The proviso only gives protection when there is no dispute about the amount of arrears. It may be mentioned that in this case there was also a dispute as to the increase in rent, but in view of the fact that the finding was in favour of the defendant, that dispute alone would not disentitle the tenant to a protection. Learned counsel finally contended that the plaintiff having made an unreasonable demand of increase in rent, the, lower court was not justified in allowing him full costs. This contention is not without force. There is one small point also in favour of the appellant, the plaintiff admitted having received tent at the rate of Rs. 10/- per month from November, 1949 to April, 1950. Since the finding of the two courts is that the rent had not been increased, the plaintiff is liable to account for the excess amount of Rs. 3/- per month for six months. The decree given by the lower appellate court will be reduced by Rs. 18/ -. It has given a decree for Rs. 36/- as arrears of rent till the 30th of April, 1954. The amount will be reduced by Rs. 18/ -. As a result, barring the modification of the reduction of the amount of rent to Rs. 18/- as due up to 30th April, 1954 and the order in respect of the costs of the lower court, the appeal stands dismissed. The respondent will get his costs from the appellant. The decretal amount is reduced to Rs. 18/- due up to 30th April, 1954. The respondent will get only half of the costs in the two lower courts from the appellants. . ;