MAHENDRA BHUSHAN, J.—This is a tenants first appeal in a suit for eviction which has been decreed by the trial Court.

2. The dispute relates to two Eastern Flats of Motikunj on plot No. S-32, C-Scheme, Arbind Marg, Jaipur which are more specifically described in para No. 2 of the plaint. One Motilal along with his four sons, Govind Narain, Laxmi Narain, the two plaintiffs (respondents No. 1 & 2) constituted an undivided Hindu family of which the father and the four sons were coparceners The two flats in dispute were let out by Motilal as Karta of the joint Hindu family to M/s Batliboi Company Private Ltd. (hereinafter referred to as the defendant) at Rs. 375/- p.m. on April 1, 1966. The rent was increased to Rs. 425/- p.m. with effect from October 1, 1972. Under an oral partition, alleged to have taken place on February 22, 1973, the two disputed flate were allotted to the share of the above named two plaintiffs. The defendant was informed about the oral partition under a notice dated December 12, 1973 and was asked to pay the rent to the plaintiffs. A civil suit No. 132 of 1974 (7/75) was filed by the plaintiffs against the defendant and others on October 15, 1974 on several grounds as enumerated in section 13 of the Rajasthan Premises (Central of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) and one of the grounds taken was that the defendant has neither paid nor tendered rent due from him for six months for the period January 1, 1975 upto the date of the suit and as such is liable to be evicted, under section 13 (1) (a) of the Act. The suit was contested by the defendant who came up with a case that he was always ready and willing to pay the rent and the circumstances were stated in the written statement under which the rent could not be paid. It was also stated that the defendant has not committed any default as envisaged in section 13 (1) (a) of the Act. Moreover, on the date of the suit six months rent was not due as it has been deposited under section 19-A of the Act. The first date of hearing in that suit was December 6, 1974 and on that date neither the arrears of rent due were paid nor an application under sub section (5) of section 13 of the Act, as stood prior to the amendment of 1975, was filed. The Court, therefore, on August 7,1975 ordered that the defence against eviction of the defendant be struck out. It appears that when that suit was pending the Act was amended by Ordinance No. 26 of 1975 which came into force with effect from September 29, 1975 and later on was replaced by an Act No. 14 of 1976 under sec. 13A of the Act as amended by the Ordinance, an application was filed on October 22, 1975 and the court determined the arrears of rent etc. in terms of section 13 A (b) of the Act. The defendant paid the amount so determined, but because there were other issues the trial of that suit continued.

3 The plaintiffs again filed a civil suit No. 79 of 1977 in the Court of learned District Judge, Jaipur City, Jaipur on April 7, 1977, on the ground that the defendant has neither paid nor tendered the rent due from November 1, 1975 to March 31,1977, for a period of 19 months, amounting to Rs. 7224/-. Out of this amount Rs. 6800/- were payable to plaintiff No. 1 and Rs. 425/- were payable to plaintiff No. 2. Thus the second suit was only filed on the ground that the defendant has again committed default under section 13 (1) (a) of the Act in payment or tender of the rent to the plaintiffs. This suit was contested by the defendant on the ground that in the earlier suit no default in payment or tender of rent for six months had been committed by the defendant and as such the second suit is not based on the ground that the defendant has again committed default. It was further pleaded that no benefit of section 13 A of the Act had been taken by the defendant in the earlier suit, therefore, in the present suit the defendant was entitled to determination of provisional rent and interest under section 13

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