In a suit for eviction based on wilful default in payment of rent, the landlord must specifically plead and prove that the tenant has neither paid nor tendered the amount of rent due for six months, and must also plead all necessary particulars of the default, including the dates and items of the default.

1. - This is a tenant's first appeal in a suit for eviction which has been decreed by the trial court. The tenant appellants and the landlord respondent shall be referred hereinafter as the tenant and the landlord respectively.

2. The landlord instituted a suit for ejectment against the tenant in respect of tenanted shop situated at Chokdi Ghat Darwaja Jaipur, on the ground of default in making payment of rent and also claimed arrears of rent alongwith damages. It was averred that the tenant was already declared first defaulter in an earlier suit which was disposed of on September 7, 1974 by the Munsif East Jaipur after giving the benefit to the tenant under section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Act)....... thereafter did not pay the rent from October 1, 1974 to December 31, 1976 and committed second default in payment of rent. It was also pleaded that the tenant had damaged the shop in question. Relief for passing the decree for ejectment, damages and arrears of rent was sought. The tenant in the written statement denied the allegations and pleaded that neither they committed first default nor second. They. did not wish to enter into dispute therefore they paid entire due rent and costs of the suit. In fact the rent was due on account of its non-acceptance by the landlord. In so far as the allegations of second default is concerned the tenant contended that the rent for the months October, November and December 1974 was paid to Shri Nihal Chand Sogani Advocate. Entries to that effect were made in the account books regularly maintained by the tenant in due course of business. Rent for the further period was deposited in the court under Section 19A of the Act and no default was committed by the tenant.

3. On the basis of the pleadings of the parties, the learned trial court framed as many as seven issues thus

(1) Whether the defendants got protection under section 13(4) of the Rajasthan Premises Act, in the earlier suit ?

(2) Whether the tenancy of the defendants was terminated..........by afflux of time therefore notice for terminating the tenancy was not required to be served ?

(3) Whether the plaintiff served notice to the defendants on 12.7.76 and the tenancy was terminated ?

(4) Whether the defendants paid or deposit the rent from 1.10.74 to 31.12.76 In time and did not commit default under section 13 ?

(5) Whether the defendants had broken the plaster of the shop and caused damage to the tune of Rs. 4700/- to which the plaintiff is entitled to recover from the defendants ?

(6) Whether the plaintiff is entitled to seek relief of eviction of the shop against the defendants ?

(7) Relief.

4. The landlord Gulab Chand examined himself as PW 1 and closed his evidence whereas the tenant examined Phool Chand DW 1, Gulab Chand son of Kalu Ram DW 2, Abhay Kumar Chordiya DW 3, Chhuttan lal Shrimal DW 4, and Nihal Chand Sogani Advocate DW 5. Learned trial court decided issues No. 1, Z A 4, 6 and 7 In favour of the landlord and decreed the suit vide its decree and judgment dated October 23, 1981. Issues No. 3 and 5 were not pressed by the landlord.

5. I have pondered over the rival submissions and carefully weighed the material on record. I proceed to discuss the contentions issuewise.ISSUE NO. I

6. The learned trial court while deciding issue No. 1 in favour of the landlord observed that the tenant in the earlier suit got the benefit of section 13(4) of the Act. the learned counsel appearing for tenant canvassed that the finding of the lower court Is perverse and it cannot be held that the tenant got benefit of section 13(4) of the Act. It was contended that in the earlier suit summons was not served on the tenant Rajmal Bairathi and the order dated September 17, 1974 Ex. 1 was not binding on him as it was passed in his absence. It was further contended that In view of the provisions contained in section 13(4) of the Act the tenant could not have been 'declared first defaulter.

7.