S.K. MAL LODHA, J.—This is an application in revision under sec. 115, C.P.C. by the plaintiffs against the order of the Additional District Judge, No. 2, Jodhpur, dated September 10, 1973, by which, he reversed the order of the Additional Munsif, No. 1, Jodhpur, dated January 22, 1973.

2. A suit was instituted by Ramlal, Hukamsingh and Prithvisingh against Shankar for arrears of rent and ejectment in the court of Munsif City, Jodhpur, on October 24, 1S68. Ramlal and Hukamsingh have died and their legal representatives were brought on record. It was averred that certain apartments mentioned in para 2 of the plaint forming a portion of building situated at Station Road, Jodhpur, described in para 1 of the plaint were taken on rent by the defendant. The rate of rent as stated was Rs. 65/-p.m. exclusive of Rs. 40/-p.m. as charges for electricity and water. In para 5 of the plaint, it is alleged that the plaintiffs filed a suit for ejectment in respect of premises in dispute against the defendant-non-petitioner, on November 12, 1964. One of the grounds for ejectment in that suit was that the defendant had committe default in payment of rent. One of issues was whether the defendant wad defaulter. In that suit, while deciding issue No. 1, the Additional Munsiff held that the defendant was defaulter in payment of rent. However, during the pendency of the suit, the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) was amended by Act No. XII of 1965, which came into force w.e.f. June 9, 1965. Thereupon, the defendant, submitted an application under sec. 13A and Sec. 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) (which will for the sake of brevity be referred hereinafter as the Act) as amended by Act No. XII of 1965, stating that as he has already deposited the entire rent on the first day of hearing, he should be given benefit of the aforesaid provisions of the Act. The Additional Munsif, No. 1, Jodhpur, gave benefit under sec. 13(4) of the Act and dismissed the suit.

3. An appeal was preferred by the plaintiff against the judgment, which was also dismissed by the Additional District Judge, No. 2, Jodhpur, on September 10, 1973. In this suit, the plaintiffs have alleged that the rent was due from the defendant from November 1, 1967 to July 31, 1968 and as such, the defendant has committed in default payment of rent. In para 10 of the plaint, it is mentioned that the amount of Rs. 715/- was due from the defendant on account of rent and damages for use and occupation and Rs. 220/- on account of electric and water charges, inclusive of hire of the sub-meter. However, plaintiffs had stated that defendant had deposited Rs. 765/- in the court under sec. 19 A, of the Act and this amount would be received by the plaintiffs. After giving a credit of this amount, a sum of Rs. 170/- would only remain due from the defendant. It was clearly mentioned that the plaintiffs would withdraw the amount of Rs. 765/- deposited by the defendant reserving their rights i.e. without prejudice to their right. As such Rs. 765/- were not claimed in the suit. The suit was registered on October 28, 1968 and December 10, 1968 was fixed for filing of written statement. On December 10, 1968, on behalf of the tenant-defendant, Shri Satyanarain Advocate, filed a power and took time for filing the written statement. The next date fixed for filing the written statement was January 9, 1969. Even, on that date, the time was sought for filing the written statement and it was filed on January 13, 1969. The defendant did not pay or deposit any amount under sec. 13 (3) of the Act. He did not make any application under sec. 13(4). On December 11, 1972, an application was submitted on behalf of the plaintiffs that the defendant had not deposited the entire rent on the first day of hearing i.e. December 10, 1968 and that he (tenant) has not raised any dispute under sec. 13 (5) of the Act. It was, therefore, prayed hat hi

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