1. - This is the defendant's appeal in a suit for arrears of rent and ejectment against the judgment and decree dated 16-10-1979 of the Additional District Judge No. 1, Jodhpur, upholding the decree for eviction passed by the Munsif, Jodhpur City dated 5-10-1977.

2. The controversy in this appeal is very limited, so it is not necessary to refer to the pleadings of the parties in detail. The plaintiff case is that the defendant did not make payment of rent with effect from 1-2-1969 to 31-9-1969, Consequently he filed suit for ejectment No. 534 of 1969, which was dismissed on payment of rent. On 12-2-1970, the defendant further committed default in payment of rent with effect from 1-12-1972 to 31-5-1973 for more than six months. Thus, he committed second default.

3. The defendant resisted the suit on the ground that he was neither a defaulter in the earlier suit nor he is defaulter in the second suit, so the plaintiff's suit on the ground of default deserves to be dismissed.

4. On the pleadings of the parties, the following relevant issues were framed : HINDI MATTER 334368 A

5. Issue No. 1, 8 and 9 were decided by the trial court in favour of the plaintiff and it was held that the defendant obtained the benefit under section 13(4) as it then stood of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act. The defendant is now precluded from taking benefit of sub-section (6) of section 13 of the Act. Reliance was placed on a decision in Sobhraj v. Bhanwar Lal, 1974 W L N. 270 : 1974 R.L W 251 .

6. Issues No. 2 was also decided in favour of the plaintiff. Issues No. 3 and 4 were also found in favour of the plaintiff' and against the defendant. Consequently, the plaintiff's suit for eviction Was decreed.

7. The defendant preferred an appeal. The learned Additional District Judge framed the following two points for determination:-

(1) Whether the defendant has committed default in payment of rent ?

(2) Whether the present suit is based on second default? if so, shat is its effect ?

8. This appeal involves only the following substantial question of law:-

"Whether in the facts and circumstances of the case it can be said that the defendant had obtained benefit as contemplated in proviso to sub-section (7) of section 13 of the Act (as it stood then)?"

9. I have heard Shri Hastimal Parekh, learned counsel for the appellant, and Shri L.R. Mehta, learned counsel for the respondent.

10. Before adverting to the real point in controversy, it is necessary o state the relevant facts. In the earlier Civil Suit No. 534 of 1969, based on the ground of default, the defendant-tenant of the first date of hearing presented the following application under section 13(4) of the Act (as it stood then):- HINDI MATTER B

11. After presentation of the aforesaid application payment of rent was made by the defendant to the plaintiff A sum of Rs. 142/- was paid on 12-2-1970. Thereupon the Court recorded the following order on that date:- HINDI MATTER C

12. Shri H. M. Parekh, learned counsel for the appellant, vehemently and strenuously urged that the defendant in his application for deposits of rent, the clearly, categorically and unequivocally, stated that he is not a defaulter. He has tendered rent time and again and even rent was dent through money order and rent was also offered through a registered letter to the plaintiff that he may collect the same from him. This being so he sought and order for deposit of rent to the tune of Rs. 453.66 in court expressly stating that deposit is being made without prejudice. He made it clear in his application that he is taking the action without prejudice to his right and expressly stating that he is not a defaulter. He simply sought an order from the court for depositing the aforesaid amount and did not make any prayer for dismissal of the suit on the ground of deposit of rent. Shri Parekh also submitted that it was the plaintiff's counsel who expressed that the suit was merely