Honble SHARMA, J.–The suit instituted by the plaintiff respondent for eviction in regard to tenanted premises against the defendant appellant was based on the ground of default enumerated under Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (for short the Rent Act). The defendant appellant submitted written statement denying the allegations. After plaintiff respondent filed a rejoinder, the learned trial court formulated as many as six issues out of which issue No.3 was as follows-

``Whether the defendant committed default in making payment of rent?

(2). Burden to prove this issue was laid on the defendant appellant. Learned trial court determined the rent under section 13(3) of the Rent Act. Thereafter vide order dated December 10, 1980 struck out the defence against eviction of the defendant under Section 13(5) of the Rent Act holding that the defendant did not deposit the rent for the month of November and December 1978 in time. The plaintiff respondent did not at all adduce the evidence. The defendant himself appeared in the witness Box as DW.1. Learned trial court vide decree and judgment dated February 16, 1990 decided all the issues against the defendant and decreed the suit of the plaintiff. After unsuccessful first appeal, the defendant has preferred the instant second appeal.

(3). The instant appeal stood admitted in respect of substantial questions of law Nos. 1 and 2 framed by the appellant in the memo of appeal. First question relates to the determination of rent under Section 13(3) of the Rent Act and the second to the interpretation of section 13(5) vis-a-vis law subsequently expounded by the binding decisions of this court and the Apex Court. But looking to the fact that the learned trial court laid burden to prove issue No. 3 on the defendant tenant and the plaintiff did not examine even a single witness, I am satisfied that the substantial questions of law that go into the root of the matter are as follows:

(i) Whether the trial court had rightly placed the burden on the defendant tenant to above that he had not committed default in making payment of rent?

(ii) Was it not incumbent on the plaintiff land lord to lead any evidence in respect of ground of default which he incorporated in the plaint?

(iii) What is the effect of the order of striking out the defence against eviction under section 13(5) of the Rent Act? Whether the plaintiff landlord is exonerated from proving the facts averred in the plaint, after the order of striking out the defence against eviction is passed?

(4). Although aforequoted questions were not formulated at the time of admission of the appeal but in view of the power provided under the proviso appended to sub-section (5) of section 100 CPC., I have heard the rival submissions in regard to these questions also.

(5). The question of onus probandi is a question of law. Wrong placement of onus of proof when brings about a miscarriage of justice can be interfered with in second appeal. Madras High Court in Nataraja Deekshidar vs. Aiyathural Padayachi (1), indicated that when onus is wrongly placed, it is a question of law and assailable in second appeal. This court in Murlidhar vs. Mukund Ram (2), also held that if burden is wrongly placed, it is a question of law and can be interfered with in second appeal.

(6). The facts giving rise to the appeal, as found by the courts below may be summarised thus:

(7). On April 1, 1978 the plaintiff instituted a civil suit against the defendant in the trial court seeking decree for eviction and arrears of rent. It was averred in the plaint that the defendant came into occupation of the suit premises as a monthly tenant, agreeing to pay monthly rent of Rs. 138/-. The defendant failed to pay rent from the month of April 1977 and became defaulter making himself liable to be evicted from the suit premises. The plaintiff prayed for the eviction of the defendant, arrears of rent in the sum of Rs. 1380/- for the month of April 1977 t

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