N.K. JAIN, J.—This revision petition is directed against the order of learned Addl. Munsif and Judicial Magistrate No. 2 Jodhpur dated 7.11.1987

2. Brief facts of the case are that the plaintiff non-petitioner has filed a suit for ejectment on the ground of default in payment of rent and personal necessity. The petitioner defendant filed written statement. The interim rent was determined u/sec. 13 (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The non-petitioner plaintiffs moved an application for striking off the defence of the petitioner, as he has committed default. The defence was struck off on 3.03.1986. The case was fixed for evidence of the defendant on 28.8.87 but the same was adjourned, as there was dispute that once defence had already been struck off evidence cannot proceed. The trial court was of the view that if the defendant is allowed to adduce evidence on the eviction other than default, then it would amount to reconsideration of earlier order of striking off defence dated 3.03.19,86. The learned trial court also observed that the order dated 3.03.1986 was not challenged by the defendant anywhere as such it became final.

3. I have heard Mr. N. M. Lodha, learned counsel for the petitioner and Mr. M.L. Chhangani, learned counsel for the respondents and perused the record.

4. Mr. Lodha, learned counsel for the petitioner has contended that the trial court has acted without jurisdiction by holding that the petitioner defendant would not be entitled to adduce evidence on any of the defence available to him under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 He has submitted that entire approach of the trial court is without jurisdiction and is against law of interpretation of statute and in view of the order passed by this Court in Desraj vs. Om Prakash (1) Mr. Lodha has submitted that when reference is pending before the Larger Bench, the court below has committed illegality and material irregularity in passing the impugned order. Therefore the petitioner may be allowed to lead evidence on the basis of defence available to him under the Act on other grounds.

5. Mr. M.L. Chhangani, learned counsel for the respondent has submitted that the reference has nothing to do with the facts of this case. He has submitted that against the order dated 3.3.1986 by which defence of the defendant against eviction was struck off, no appeal or revision has been filed and thus it has become final. Under these circumstances, the petitioner cannot take the plea that other defence under the Act is available to him as per the decision of this Court in Desraj vs. Omprakash (supra). Mr. Chhangani, has placed reliance on The Managing Director Hindustan Aearonautic Ltd. vs. Ajit Prasad Tarway (2) Desraj vs. Om Prakash (supra) and Beant Singh vs. U.O.I.(3).

6. In this revision, point in controversy is that whether the tenant should be allowed to adduce evidence, even if his defence is struck out. One view on this aspect is that the scope of stocking off of defence, should be limited to the striking out the defence under Sec. 13 (1) (a) only and not to other defence. The other view is that once defence is struck out, it means that all the defence available to him against ejectment under the Rajasthan Premises (Control of Rent and Eviction) Act cannot come to his rescue. But from the language used in Section 13 (5) of the Act the words are "If a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit". There is nothing in Section 13 (5) of the Act which says defence against eviction u/s 13 (1) (a) will be struck off or defence against other defence will also be struck out. To my mind the words used in Section 13 (5) of the Act clearly mean the whole defence against eviction will be struck off. Their lordship of the Supreme Court in

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