N.M. KASLIWAL, J.—This miscellaneous appeal has been filed against an order of the District Judge, Ajmer, dated 27th September, 1977, whereby an application filed by the defendant under section 13 (5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as the Act was dismissed.

2. The plaintiff filed a suit for eviction of a shop on the ground of his reasonable and bona-fide necessity, default in the payment of rent and on account of denial of his title by the defendant. The defendant moved an application under section 13(5) of the Act, 1950, on 7th August, 1975, which was the first date of hearing of the case. In this application the defendant submitted that the arrears of rent amounting to Rs 9,200/-for the period of 1st October, 1974, to 31st May, 1975 have already been paid to the Commercial Taxes Officer Ajmer by the defendant on behalf of the plaintiff under section 11-A of the Rajasthan Sales Tax Act, as ordered by the Commercial Taxes Officer, Ajmer, It was, therefore, prayed that the learned trial Court should be pleased to determine the amount to be deposited or paid to the plaintiff by the defendant.

3. A reply was filed by the plaintiff to the aforesaid application and it was emphatically denied that any amount at all had been deposited on behalf of the plaintiff and that in any case if the defendant wrongly paid the amount then such amount cannot be taken for aid and the case being governed by section 13 (4) of the Act, 1950, and not section 13(5) of the Act, 1950, the defence of the defendant was liable to be struck of under section 13(6) of the Act. The plaintiff also submitted a separate application under section 13(6) of the Act for striking of the defence of the defendant against eviction. This application of the defendant remained pending and in the mean time the Rasjas-than Premises (Control of Rent & Eviction) Amending Ordinance came into force vide notification dated 29th September, 1975 published in the gazette dated 29th October, 1975. This Ordinance was further replaced by the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Act, 1976, (Rajasthan Act No. 14 of 1976). For the purpose of brevity I shall call it the amending Act- The defendant thereafter submitted an application on 24th October, 1975, under section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, as amended by Ordinance No. 26 of 1975. The plaintiff opposed this application on the ground that the application under section 13 (3) of the Amending Ordinance No. 26 of 1975 was not maintainable as the same did not apply to pending suits. The learned District Judge by its order dated January 5, 1976, dismissed the application filed by the defendant taaking the view that section 13 (3) of the Amending Ordinance No. 26 of 1975 did not apply to the suits already pending before the promulgation of this Ordinance.

4. The defendant without prejudice to his application dated 7th August, 1975, under section 13(5) before the promulgation of the Amending Ordinance, and application under section 13(3) dated 24th Oct., 75, after the promulgation of the amending Ordinance, submitted an application on 28th October, 1975, under section 13 A(b) of the Rajasthan Premises (Control of Rent & Eviction) Act as amended by Ordinance No. 26 of 1975. This application has not been disposed of by the trial Court. The learned trial Court beared the argument on the application filed by the defendant under section 13 (5) and by its order dated 27th Septembers 1977, dismissed the same taking the view that after the coming into force of the Amending Ordinance No. 26/1975 which was latter on replaced by the Amending Act No 14 of 1976, the tenant can only seek relief under section 13-A of the Amending Act No. 14 of 1976 and not under the old section 13(5) of the Act, 1950. The defendant has filed the present appeal challenging the aforesaid order of the learned trial Court dated 27.9.1977.

5. Mr. Sogani learned

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