M.B. SHARMA, J.—This Civil Second Appeal by the defendant tenant Sanwarmal involves a question of law regarding the ambit and scope of section 13 (A) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act).

2. The facts of the case and the events leading to the reference to the Division Bench are these.

3. Two shops, fully described in para 2 of the plaint, were let out by Murarilal plaintiff-respondent under a rent note dated March 10, 1958 to defendant-appellant Sanwarmal on a monthly rent of Rs. 19/-. The plaintiff Murarilal and the defendant Sanwarmal shall hereinafter be referred as the plaintiff and defendant respectively.

4. A suit for eviction and recovery of arrears of rent for the period commencing from July 6, 1966 to November 6, 1968 amounting to Rs. 551/- and for notice expenses was filed by the plaintiff against the defendant in the Court of Munsif, Sikar on two grounds; firstly, that the plaintiff required the suit premises under Sec. 13 (1) (h) of the Act reasonably and bonafide for his own use as well as for the use of his brothers; and, secondly, under Section 13 (1) (a) of the Act alleging that the defendant has neither paid nor tendered the amount of rent due from him for more than six months and is thus a defaulter.

5. The suit was contested by the defendant on both the grounds and it was averred that the rent was only due from December 6, 1967. On the first date of hearing, i.e., January 27, 1969 the defendant moved an application that he was prepared to deposit the rent due from him from December 6, 1967 along with interest thereon and costs of the suit. The Court permitted the defendant to deposit the rent, as desired by him in his above referred application, but the defendant did not deposit the arrears of rent on the first date of hearing and a sum of Rs. 527/- was deposited by the defendant in the Court on February 6, 1969.

6. Issues were framed, but no issue with regard to the dispute as to whether the defendant was a defaulter was framed and the learned Munsif, after evidence, dismissed the suit of the plaintiff vide his judgment dated April 5, 1971. An appeal was filed by the plaintiff to the Court of Additional District Judge, Sikar During the pendency of that appeal, an application under Sec. 13 (6) of the Act, as it stood prior to the amendment, by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975, Ordinance No. 26 of 1975 (hereinafter referred to as the Amending Ordinance), which came in to force with effect from 29-9-75, was filed by the plaintiff seeking an order that the defence against eviction of the defendant be struk out. The defendant submitted the reply to the application of the plaintiff on 1-9-72 wherein it was alleged that the defendant had deposited the arrears of rent along with interest thereon on the first date of hearing and thereafter continued depositing rent every month. The defendant was always ready and willing and is ready and willing to deposit the rent. The Court never ordered the defendant to deposit the rent and, therefore, the defence against eviction could not be ordered to be struck out.

7. The learned Additional District Judge, Sikar by his judgment dated May 9, 1973 allowed the appeal of the plaintiff and after framing additional issues sent the case back to the trial court for fresh decision in accordance with law. Issue No. 3 was framed to the effect, as to whether the defendant has not committed any default in the payment or tender of the rent ? Issue No. 6 was, whether the defendant has failed to pay or deposit the amount in accordance with Section 13 (4) and (5) of the Act, and his defence against eviction is to be struck out for his failure to deposit the amount of rent on the first date of hearing and on subsequent dates. The learned Munsif recorded additional evidence of the parties on the additional issues and recorded the following findings:—

(1) That the defendant failed to depos

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