JUDGMENT

1. This second appeal has been filed by appellant-plaintiff- landlord under Section 100 CPC assailing the judgment and decree dated 13.07.2005 passed in Civil Appeal No.70/2003 by the Court of District Judge, Tonk affirming the judgment and decree dated 03.09.2003 passed in Civil Suit No.221/1992 by the Court of Additional Civil Judge (Upper Division), Tonk whereby and whereunder civil suit for rent and eviction, filed by appellant- plaintiff, has been decided in the manner that defendant-tenant has been declared to commit first default in payment of rent, however, by extending benefit of first default, the decree for eviciton has been declined.

2. Having heard learned counsel for both parties and on perusal of impugned judgments and record, it is not in dispute that defendant-tenant was found defaulter in payment of rent for the period 01.01.1992 to 31.10.1992 and counsel for defendant- tenant has not disputed findings of default for the alleged period. Hence the court is not required to consider the issue of default in this second appeal.

3. The issue which falls for consideration by this Court in the present second appeal is limited as to whether the defendant- tenant is e