BHARGAVA, J.— This is a second appeal by the defendant against the judgment and decree of the learned Senior Civil Judge, Jaipur city dated 8th October, 1960 confirming the decree of the Additional Munsiff, Jaipur in a suit for ejectment.

2. The appellant was the tenant of the premises mentioned in paragraph (1) of the plaint on a monthly rental of Rs. 45/- plus Rs. 3/8/-and Rs.2/-p.m. for electricity and water charge. The present suit for ejectment and arrears of rent was filed against him on 30th August, 1956 on several grounds namely of subletting, plaintiffs personal necessity and default in payment of rent by the defendant. It was alleged that the defendant was an habitual defaulter and had committed more than three defaults in the payment of rent for two months, on several occasions between 5th November, 1952 and 5th December, 1955.

3. The defendant contested the suit and while admitting the tenancy denied the grounds on which the ejectment from the premises was sought. It was pleaded that he had not made defaults in the payment of rent but had been making regular payments, the last payment of rent being made on 20th September, 1955. Thereafter, once on 28th November, 1955 and again on 19th January, 1956, he sent the amount of rent by money order to the plaintiff. Besides as he deposited the whole amount of rent along with interest, costs etc. determined by the court under sec. 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 hereinafter called the Act) the suit for ejectment on the ground set forth in sec. 13(i)(a) was liable to be dismissed despite the alleged defaults on three occasions within the period of 18 months. Reliance was placed on the Full Bench decision of this Court in Daulat Ram and other Vs. Lakhu Mal and another, (1) wherein it was held that:—

"The second proviso to s. 13 (1) (a) does not prevail over sec. (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 advantage 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 defaults mentioned in the second proviso to sec. 13 (1) as it stood prior to Amendment Act No. XXIV of 1958"

It may be mentioned that the present suit was filed before the amendment of sec. 13 by Act No.XXIV of 1958. As the plaintiff during the pendencey of the suit gave up other grounds for ejectment namely of his personal necessity and that of sub-letting by the defendant the only point which now needs consideration is whether in view of the payment in full of the amount determined by the court under sec. 13(3) of the Act he is entitled to the protection afforded by this provision and the plaintiffs suit is liable to be dismissed. Learned counsel for the appellant contends that as soon as he complied with the order of the court made under sec. 13(4) there was no option for the court but to dismiss the suit for ejectment. It was also contended that in the circumstances of the present case the appellant was entitled to relief against forfeiture for non-payment of rent under the provisions of sec. 114 of the Transfer of Property Act. On the other hand it is urged on behalf of the respondent that it is not open to the appellant to dispute that he was not a defaulter inasmuch as both in his written statement and statement before the court he admitted that he had not paid rent since 5th April, 1955. He had, therefore committed more than three defaults in the payment of two months rent during the period of 18 months. It is next urged that provisions of sec. 13(4) were not applicable in the present case as the appellant had contested the suit on the ground that the notice determining the tenancy was not a valid one and that the premises were not sublet or required for the personal use of the plaintiff. Reliance is placed on the following observations in Sha-mbhoo Ram and another

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