Honble N.K. JAIN, J.—This is defendants second appeal directed against the judgement and decree of learned Addl Distt & Sessions Judge No. 2 Jodhpur dt 6 12 90, whereby he has reversed the judgement and decree passed by the learned Civil Judge cum Addl. Chief Judicial Magistrate No. 2, Jodhpur dt. 4.9.87 in Civil suit no. 184/83.

2. Brief facts which give rise to this appeal are that the plaintiff-respondent Achal Singh now deceased and Mahendra Singh filed a suit on 23.9.82 for eviction from the premises situated in Mohalla Seriyan outside Sojati Gate (memioned in para 1 of the plaint) against the firm the appellant no. and its four partners with the allegation that the defendant-appellant no. 1 took the shop on rent @ Rs 45/- per month and also agreed to pay house tax. It was also alleged that earlier the defendant had also not paid rent, a suit no. 35/64 was filed and the appellant had taken the benefit of first default in the payment of rent form January ,1961which was given to him by the Munsif City, Jodhpur vide its judgement dt:30.5.85 It was further alleged that again the defendants neither paid nor tendered rent form 4.5.80 till the filing of suit i.e. 2.9.82.The plaintiff had also alleged that the defendant did not pay house tax and prayed for eviction on the ground of default in payment of rent arrears of rent and personal and bonafide need. The defendant filed their written statement on 21.2.83 and 19.9.83 denying all the allegations. The defendants stated that they never made any default in payment of rent and rather the rent was adjusted in replacement of lod three doors by new ones with the consent of the plaintiff. On 16.2.84, as many as seven issues were framed by the learned trial court on the pleadings of the parties.The Plaintiff produced P.W.1 Mahendrasir,gh and P.W.2 Aahalsingh in suppport of his case and also produced some document including written state- ment and judgement of the earlier suit. The defendants in support of their case produced D.W. 1 Indersingh, D.W. 2-Thakurdas and D.W. 3 Bansilal alongwith their documents.The plaintiff did not press issues no. 2, 3 and 4. The learned- trial court after hearing the parties while dismissing the suit on 4.9.87 decided- issur no.1 in favour of the plaintiff and issues no. 5 & 6in favour of the defend- ants. The Appellate Court vide its judgement dt. 6.12.90 while deeding issues no. 1 and 6 in favour of the plantiff-respondent reversed the judgement of the court below and decreed the suit, however, the finding of the trial court on other issues was maintained. Hence, this second appeal.

3. Mr. Shishodia, learned counsel for the appellants has submitted that the courts below have erred in not granting benefit of default as the appellants are still entitled for the benefit of S. 13(3) read with S. 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act (herein-after referred as the Act) and should not be evicted on the ground of earlier default. It was also argued that in the alleged suit no 35/64 the defendant got benefit as the rent was not paid or tendered for two months and now the defendant-tenants are not the same and further by substitution of new provision i.e. sub-section (6) of Sec. 13 of the Act, six months time has been fixed for holding default so unless there is defaul of same period i.e. of six months, it cannot be made applicable to the benefit against the default clause as existed prior to 9.6 65. He has placed reliance on M/s. Bright Bros. (Pvt.) Ltd. Bombay Vs. J.K. Sayani (1), Sohanlal Vs. Smt. Chav (2) and Vatan Mal Vs. Kailash Nath (3). He has further submitted that the finding of the learned first Appellate Court on issue no. 6 is perverse and this Court can set aside the same in second appeal.

4. Mr. Mehta, learned counsel for the respondent has submitted that it is not open to the appellant to challenge or agitate this point in this second appeal as he did not file cross-objection before the first Appellate Court and now the c

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