S.K. MAL LODHA, J.—This appeal by the defendant-tenant under sec. 22 of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (which will hereinafter, for the sake of brevity, be referred to as the Act), is directed against the order dated January 4, 1978 of the Additional Civil Judge, Jodhpur by which he struck out his defence against eviction. This order was passed by the Additional Civil Judge in Civil First Appeal No. 11 of 1977, which was filed by the plaintiff-landlord under sec, 96 C.P.C. against the judgment and decree dated November 26, 1974 of the Munsif City, Jodhpur. Reference herein to the provisions of the Act will be to those which existed than during the pendency of the suit and at the time of filing of Civil First Appeal No. 11 of 1977.

2. The material facts, necessary for the disposal of this appeal, may briefly be noticed : The plaintiff-respondent instituted a suit for arrears of rent and ejectment in the court of Munsif City, Jodhpur on July 3, 1972. The eject-ment was sought, inter alia, on the ground that the defendant-tenant had not paid rent for the period of 16 months and 25 days upto July 2, 1972 and, therefore, he has rendered himself liable to eviction under sec. 13(1) (a) of the Act. Another ground on which the ejectment was sought was reasonable and bona fide necessity of the plaintiff, which is a ground mentioned under sec. 13(1) (b) of the Act, An application under sec. 13(5) of the Act was filed by the defendant raising dispute regarding the amount of rent and stating that he is not a defaulter. The learned Munsif determined Rs. 202 upto February, 1973 and directed the defendant to deposit it within 15 days from the date of the order i.e. March 24, 1973. He further ordered that rent for March, 1973 and later on should be deposited by the defendant as per sec. 13(5) of the Act. The suit was contested by the defendant vide written statement dated November 18, 1972. It was denied that the rent as claimed by the plaintiff was due from him and that he is a defaulter. The trial court framed 4 issues inclusive of relief on April 7,1973. Issue No. 3, when translated into English, reads as under :

"Whether the defendant is a defaulter"?

After trial, the learned Munsif by his judgment dated November, 26, 1974 dismissed the suit for ejectment and decreed it for Rs. 18 as rent. He decided issue No. 3 against the plaintiff and in favour of the defendant and held that it was proved that the rent upto April 12, 1972 has been paid and as such when the suit was instituted on July 3, 1972, six months rent was not due and, therefore, the plaintiff cannot evict the defendant under sec. 13(l)(a) of the Act, Against the dismissal of the suit, the plaintiff went in appeal and prayed that decree for ejectment and Rs. 83.10 may be passed. This appeal was lodged on January 2, 1975 in the court of the District Judge. Jodhpur. It was however, transferred for disposal to the Additional Civil Judge, Jodhpur.

3. On August 20, 1977, an application under sec. 13(5) of the Act was filed on behalf of the plaintiff. It was stated in the application that after the dismissal of the suit by the Munsif City, Jodhpur on Nov. 26, 1974, the defendant has neither paid nor deposited rent every month and therefore, his defence against eviction may be struck out. Thereafter, on September 19, 1977, another application was submitted praying for striking out defence against eviction. In this application, it was stated that the defendant-tenant has not deposited the rent for the month of May, 1973 in the trial court in time inasmuch as it should have been deposited on July 2, 1973, but it was deposited on July 13. 1973. It was also stated in it that though the appeal as filed on January 2, 1975 against the judgment of the trial court dated November 26, 1974, the defendant has not deposited the rent every month from December, 1974 to August, 1977 as required by section. 13 (4) of the Act. It was therefore, prayed that the def

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