A tenant who has availed the benefit under Section 13(6) or has availed benefit of Section 13A, he cannot claim relief under Section 13(6) that no decree of eviction he passed against him on the grounds specified in Section 13(1)(a).

1. - This second appeal arises out of a suit for rent and ejectment filed by late Gujarmal against the appellant Gauri Lal.

2. Brief facts of the case are that on 17-12-80 landlord Gujarmal, filed a suit against tenant Guari Lal with the allegations that he had let out a shop on 12-4-67 on a rent of Rs. 10/- per month for a total period of 11 months. The shop was now required by the landlord for his personal necessity of doing business for vegetable and fruits. He was not having any proper shop for this business and the requirement of the suit premises was reasonable and bonafide. Moreover, the defendant-tenant was not doing any business in the shop and had been keeping the shop closed. The tenant himself was owner of the four shops and he is also having ten shops in Tijara. He had sold two shops. Another ground of the eviction was that the tenant had let out the Chabutra to some other person. The tenant denied the averments relating to reasonable and bonafide personal requirement of the landlord and stated that the had been doing business in the shop and the livelihood of his own and his family depended on the business in the disputed shop.

3. During the pendency of the suit, the landlord applied for amendment of the plaint for inserting additional ground of second default. The amended plaint was filed on 3-12-81. In the amended plaint the landlord stated that the rent between 12-8-76 to 11-6-81 amounting to Rs. 580/- was not paid. A notice about payment of rent was given on 8-12-80, but, even then the rent has not been paid and the tenant had committed a default for more than six months. A suit on the ground of default was filed earlier and the same was decreed on 15-5-74, but, on appeal the tenant was given the benefit of the amended Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the suit was dismissed. Since, the tenant availed benefit of Section 13 in the past he is not entitled to benefit of Section 13(7) (correct reference is to Section 13(6) of 1950 Act). The tenant in this amended statement stated that the earlier suit filed by the tenant had been dismissed by the trial Court and the appeal had also been dismissed on 28-8-76. The present suit was filed after 76 Amendment of 1950 Act and he had filed an application for determination of rent. Moreover, he himself had offered rent to the landlord on several occasions, but, the landlord did not accept it. He then sent money-order on 27-7-81, but, the landlord did not accept the rent deliberately and, therefore, he was not entitled to any decree on the ground of default.

4. The trial Court framed in all 12 issues. The main issue related to the reasonable and bonafide personal necessity of the landlord, non-user of the disputed shop by the tenant, default by the tenant in payment of rent and about the applicability of Section 13(6) as also of comparative hardship.

5. On the basis of evidence of both the parties the suit was decreed by the trial Court vide judgment dated 13-1-82. On appeal by the tenant, learned Additional District Judge, Kishangarh Bas framed an additional issue relating to partial eviction with reference to Section 14(2) and remanded the case to the trlal Court by framing an additional issue. This order was made by the learned Additional District Judge, Kishangarh Bas on 5-11-85. The trial Court gave its finding on the additional issue on 8-2-1986 and held that it was not possible to pass a decree of partial eviction. Thereafter, vide his judgment and decree dated 29-6-86, learned Additional Judge Kishangarh Bas dismissed the appeal of the tenant and maintained the judgment and decree passed by the trial Court.

6. On 12-12-86 this Court framed two following questions of law :1. Whether under Section 13(1)(a) of the Rent Control Act is the plaintiff has to plead and prove that tenant has neither tendered nor paid the rent for a period six months ?2. Whether the First Appellate Court was justified in holding that defendant is not entitle