BHANDARI, J.—This is a Civil Second Appeal in a suit for ejectment and arrears of rent.

2. The case of the plaintiff-respondent as set out in the plaint is that on 7th June, 1954 the defendant-appellant had taken on lease certain pucca structures standing on the land which had been purchased by the plaintiff from the defendant on a monthly rent of Rs. 7/- and had executed a rent-note. It is further alleged that the defendant paid Rs. 21/- as rent on 2.10.1954, but thereafter made default in payment of rent. The plaintiff served a notice for ejectment on 26.3.1957 and then filed the present suit on 23.4.1957 for ejectment of the defendant and for payment of arrears of rent amounting to Rs. 220/- and for mesne profits till ejectment. The defendant contested the suit denying that the plaintiff had purchased any land from him or that he had executed any rent-note. It was further alleged that the defendant was the servant of the plaintiff-respondent and he might have forged a document purporting to be a rent note. It was also stated that the land was an evacuee property and could not have been sold to the plaintiff.

3. The case came up for hearing for the first time on 25.10.1957 before the trial court. On that day, the learned trial Judge passed an order under sec. 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter called the Act) that the defendant should pay by 9th November, 1957, a sum of Rs. 262/- as arrears of rent together with interest at the rate of 6 % per annum from the date of the suit till that date and Rs. 45/- as costs of the suit and the case was fixed for hearing on 4.11.1957. On that day, the plaintiff was examined under O.10, R. 2 C.P.C. and he gave details of the structures which were not mentioned in the plaint. The plaintiff was ordered to file the site plan. On 25.10.1957, an application was filed by the plaintiff under sec. 13(5) of the Act that the defendant had not paid the arrears of rent in pursuance of the order of the court dated 25.10.1957 and he may be ordered to deposit rent month by month. This application was decided by the learned Munsiff on 8.5.1958. The application of the plaintiff was allowed and it was ordered that the defendant should deposit in court rent of every month by the 15th day of the next succeeding month at the rate of Rs. 7/-per month. On the same day several issues were framed but some of the issues were later on deleted by the order of the court dated 15.7.58 as these issues raised a question of title which according to the trial court could not be raised in a suit for ejectment.

4. On 21.7.58 the plaintiff made an application that the defendants defence be struck off. This application was disposed of on 14.1.61 and it was ordered by the court that as the defendant had not complied with the order of the court passed on 8.5.1958 and had not deposited the rent, his defence be struck off. The case was adjourned to 19.1.1961. Even before the disposal of the application on 7.8.1958 the plaintiff had been examined as witness. On 19.1.61, another witness of the plaintiff Agarchand (P.W. 2) was examined. The counsel of the defendant was not permitted to cross-examine Agarchand as the defendants defence had been struck off. The trial court heard arguments on that day and pronounced judgment on 23.1.61 decreeing the plaintiffs suit.

5. The appeal by the defendant-appellant to the Senior Civil Judge No. 2, Jodhpur failed. The learned Judge of the lower appellate court held that the defence of the defendant was rightly struck off. He further observed that the order striking out the defence was appealable under sec. 22 of the Act and as no appeal had been preferred, this objection could not be heard in the appeal. The learned Judge also held that the rent note was proved to have been executed by the defendant by the evidence of Ramkumar (P. W. 1) and Agarchand (P. W. 2). Taking this view of the matter, the learned Judge of the lower appellate court dismissed the

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