Chhangani, J. - (1.) THIS is a defendant's second appeal against the decree of the District Judge, Ganganagar, in a suit for ejectment.
(2.) THE plaintiff respondent instituted the suit against the defendant for ejectment and arrears of rent amounting to Rs. 150/- in the court of the Civil Judge Ganganagar on 3. 9. 1954. It was alleged in the plaint that the defendant took on lease a shop belonging to the plaintiff-respondent on Jeth Sudi 3, Smt. 2007, at Rs. 6/- per month. He paid rent upto Sawan Sudi 3, Smt. 2009, and had been continuously defaulting thereafter. Upto the date of the suit rent was due for a period of 25 months amounting to Rs. 150/-at the rate of Rs. 6/- per month. The defendant contested the suit. He denied the liability for rent claimed by the plaintiff, and contended that only an amount of Rs. 54|- was due from him and that amount he was always prepared to pay, and the same had been remitted to the plaintiff under a money order, but the money order was refused. An objection to the maintainability of the suit was also taken on the ground that the notice to quit, which was served by the plaintiff on the defendant was defective, and did not result in the determination of the tenancy. The trial court framed nine issues After evidence was led and when the case was fixed for arguments, the defendant paid in court an amount of Rs. 120/- on account of arrears of rent. The balance of Rs. 30/- appears to have been paid on an earlier occasion in connection with the deposit of Rs. 90/- on account of rent. In view of the deposit by the defendant of the arrears of rent due to the plaintiff during the course of the trial, the Civil Judge dismissed the suit. On appeal by the plaintiff-respondent, the District Judge held that the fact of rent having been deposited during the course of the trial, after the evidence had been recorded, necessarily implied that the defendant had committed default, and deposited the amount only on account of an apprehension of a possible finding against him. In these circumstances treating the defendant as a defaulter and relying upon the proviso two to sec, 13 (l) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, he accepted the appeal, and passed a decree for ejectment. The defendant has come in second appeal. The question as to whether the proviso two to sec. 13 (l) (a) should be read subject to sub-sec. (4) of sec. 13 having been considered a very important question, the matter has been referred to a Division Bench. Since then there has been a Full Bench judgment of this Court in Daulatram vs. Lakhumal (F. B. Civil Ref. No. 38 of 1959 decided on 9th November, 1959) in which it has been laid down that the second proviso to sec. 1 3 (l) (a) does not prevail over sec. 13 (4); but on the other hand sec. 13 (4) is applicable when the tenant does not take advantage of the first proviso or is prevented from taking ad vantage thereof owing to defaults mentioned in the second proviso. In other words, the tenant is entitled to the protection provided by sec. 13 (4), even if he has made the default mentioned in the second proviso to sec. 13 (1), as it stood prior to amendment Act XXIV of 1958. In this view of the law, the decree of the lower appellate court cannot be sustained on the ground relied upon by the District Judge. However, there is another point on which the decree for ejectment should be maintained. Sub-sec. (4) affords protection to a tenant in those cases where he does not raise a contest, except as to arithmetical calculations about the amount of rent. If a tenant denies his liability to pay rent and joins issue on that matter, and subsequently fails, it is not open to him to claim protection under sub-sec. (4) of sec. 13. For authority in this connection we may refer to Shambhoo Raw vs. Mangal Singh (1 ). In the present case the defendant having denied his liability to pay the rent and having joined contest, is not entitled to the protection of sub-sec. (4), and obviously he having defaulted on more than three occasions during the period of 18 months, the plaintiff respondent is entitled to eject him, and he cannot claim protection under any of the provisions of the Act. During the course of arguments, however, the defendant-appellant urged another ground for setting aside the decree. It was vehemently urged that the notice which was served upon him by the plaintiff was not in accordance with the provisions of sec. 106 of the Transfer of Property Act. It was also argued that the burden of proving that a notice was served upon the tenant and that notice was in accordance with, law, and, therefore, resulted in determination of the tenancy is upon the plaintiff, and inasmuch as there is no evidence on either side, the plaintiff's suit for ejectment should fail on that ground. When the case was heard on the last occasion, we gave time to the defendant appellant to produce before us the original notice, which he had received from the plaintiff. Today the counsel for the defendant-appellant expresses his inability to produce the original notice His main emphasis is only on the abstract doctrine of burden of proof. A number of cases were cited by the learned counsel for both the parties on this aspect of the case. We, however, consider it unnecessary to notice and discuss each of these cases. The facts of this case are quite peculiar. The plaintiff made a definite allegation in his plaint that a notice was duly served on the defendant. The defendant in his written statement admitted the receipt of the notice, but made a vague allegation that the notice was not in accordance with law. The particulars as to how the notice was not considered in accordance with taw were not given by the defendant. When issues were framed and the burden of proof was placed upon him, he raised no objection to the placing of the burden on him. Neither the original notice was produced by him, nor any evidence was led to show that the notice was defective, and did not result in the determination of the tenancy. In was the duty of the defendant to produce the original notice to assist the court in coming to the right decision on the point; he could not lie by and then be allowed to take advantage of the abstract doctrine of onus of proof. In our opinion, the defendant-appellant has been extremely negligent and careless in this respect. We are therefore not prepared in the circumstances of this case to remand the case for further enquiry. The contention, therefore, with regard to the defective nature 6f the notice is over-ruled. The result is that there is absolutely no merit in this appeal which is hereby dismissed, but in the circumstances without costs. . ;