Honble PRASAD, J. – The Court of Additional District Judge No. 1., Jodhpur made the instant reference to this Court under Section 113 of the Code of Civil Procedure (referred to hereinafter as `C.P.C.) and Order 46 Rule 1 C.P.C. as the said court was seized of a Misc. Appeal in which the following question was involved :–

``Whether, in a suit for eviction under S. 13 (1) (a) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred as Rent Act). on the ground of alleged second default, if it is expected from the trial court, to provisionally determine the rent as per provisions of S. 13 (1) of the Rent Act.

(2). While making the aforesaid reference, the Court of Additional District Judge took into consideration various judgment of this Court i.e. Hanuman Prasad vs. Gaindi Lal (1), wherein a learned Single Judge observed as under :–

``It may be pointed out that sub-sec. (4) and (5) have been introduced for the benefit of the tenant so that in case of first default he may pro- tect himself against ejectment by making the required deposit or payment as provided therein. But in case of a tenant who has committed a second default, as mentioned in the proviso to sub-sec. (7) no such benefit is available. It is a principle of jurisprudence that rights and liabilities are co- relative. Consequently if a certain provi- sion of law provides a benefit to a class of persons on performance of the act mentioned therein the penalty prescribed for non performance of the act cannot be meted out to a person who cannot avail of the benefit of those provision. It would, thus be ingengruous to say that even though the defendant cannot save himself from ejectment by making the deposit or payment under sub-sec. (4) or sub-sec. (5) of Sec. 13 of the Act, yet he is liable to have his defence struck out on account of non compliance of the same. It appears to me therefore that sub-sec. (6) of Sec. 13 cannot be pressed into service against a tenant to whom the benefit under sub-sec. (7) is not available. Since the case of the defendant falls under the proviso to sub-sec. (7), the penalty provided under sub-sec. (6) of striking out the defence cannot be meted out to him.

(3). In this regard, the second case considered by the said court was in the matter of Hanspuri vs. Bhanwar Lal (2), wherein this Court observed as under :–

``The exercise of determination of the rent under section 13(3) in such a second suit would be futile inasmuch as the proviso to sub-sec. (6) of section 13 wherein provides that the tenant will not be entitled to the relief under sub-section (6) if he has already taken advantages of it in a previous suit.

(4). The said court also considered the judgment in Ram Lal & Anr. vs. Goverdhan Lal (3), wherein this Court held as under :–

``This scheme of section 13 of the Act clearly provides for determination of rent under section 13(3) of the Act, when the suit is on theground of default in payment of rent with or without any other grounds.

This order under sub-section (3) of Section 13 is to be passed either on the first date of hearing or not more than three months after the filing of the written statement and in any case before the framing of the issues. In other words such an order is to be passed as early as possible after the service of summons on the defendants. This deter- mination is not subject to the proviso to sub-section (6) of Section 13. In other words whether the tenant would be able to get protection of sub-section (6 ) of section 13, or not, is not to be looked into at the stage of determining that under sub-section (3) of section 13, the determination of rent under section 13(3) of the Act and payment of the same would not by itself entitle the tenant to protection against eviction. The availability of protection to him would depend upon other conditions. Thus determining the amount under Section 13(3) of the Act and allowing the tenant to deposit the same would not confer any right on him which would en

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