JUDGMENT : 1. - This is a civil second Appeal against the judgment and decree of the learned District Judge, Jaipur City dated 12.3.1973 in a suit for arrears of rent and ejectment. 2. The appellants, landlords, filed a suit on 11.10.1965 against the defendant -respondent Manoharlal (since deceased) for arrears of rent from 1.7.1962 to 1 1.10.1965 at the rate of rupees 115 p.m. and for eviction of certain premises situated in Jaipur City, the details of which are given in the plaint. The suit was based on default in the payment of rent for more than six months under Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) and on the ground of reasonable and bona fide personal necessity. In the written statement the defendant denied the reasonable and bona fide personal necessity of the plaintiffs and also denied that he was a defaulter in the payment of rent. The learned trial court framed the following issues: 1. Whether the disputed premises were required reasonable and bona fide by the plaintiffs for business of Jewellery and agency? 2 (a) Whether a notice was served by the plaintiffs to the defendant for eviction ? (b) If it was so, whether the notice should have been of six months ? 3. Whether the plaintiffs were entitled to Rs. 4.50 p.m. instead of Rs. 3 for water charges? The learned Additional Civil Judge, Jaipur City vide his judgment dated 1.6.1971 decreed the plaintiffs' suit for eviction and decided all the issues in favour of the plaintiffs. On appeal by the tenant, the learned District Judge reversed the finding of the learned trial court on issue No. 1 but upheld the finding of the trial court on other issues. In the result the learned District Judge set aside the judgment and decree passed by the trial court and dismissed the plaintiffs' suit. Hence this second appeal by the plaintiff landlords. In the result the learned District Judge set aside the judgment and decree passed by the trial court and dismissed the plaintiffs' suit. Hence this second appeal by the plaintiff landlords. It may be stated at the out-set that on 4.5.1979 learned counsel for the appellants stated that he gave up the case on the ground of reasonable and bona fide personal requirement of the suit premises and wanted to combine his arguments on the ground of default in the payment of the rent only, a direction was given that the appeal will be heard on the ground of default in the payment of rent only. The learned counsel for both the parties have, therefore, combined their arguments on the point of default in the payment of rent only. I shall state the acts leading to the above controversy. The plaintiffs in para No. 3 of the plaint had stated that the defendant had never paid rent in time from the beginning of the tenancy. It was also alleged that the defendant had not paid any rent and expenses of water from 1.7.1962 and was thus a defaulter in the payment of rent. An amount of Rs. 4682.60 was thus claimed as arrears of rent from 1.7.1962 to 11.10.1965 i.e. the date of the suit and water expenses and expenses of notice. The defendant submitted an application on 21.12.1965 that the amount of up-to-date rent, interest and expenses may be determined so that the defendant may pay the same to the plaintiffs for deposit in the court. The defendant then filed a written statement on 3.2 1966 and denied para No. 3 of the plaint and took the plea that he had paid the entire rent in time and never kept in arrears. It was further said that the plaintiffs used to take the rent according to their own convenience and used to issue receipts sometimes monthly and sometimes cumulatively and the plaintiffs were estopped from raising any grievances on this account on the basis of their own conduct. In the additional pleas in the written statement in para No. 21 it was alleged that the plaintiffs had agreed to get the suit premises repaired but when they did not get the same repaired then the plaintiffs told the defendant that he may get the repairs done from his own money and the defendant spent a suns of Rs. In the additional pleas in the written statement in para No. 21 it was alleged that the plaintiffs had agreed to get the suit premises repaired but when they did not get the same repaired then the plaintiffs told the defendant that he may get the repairs done from his own money and the defendant spent a suns of Rs. 1000/- in repairs for which the plaintiff , his brother and his mother had agreed to adjust the said amount towards the arrears of rent and as such he was entitled to get this amount of Rs. 1000/- adjusted in the arrears of rent. In para No. 23 it was alleged that at the time of the commencement of the tenancy the plaintiff had taken Rs. 590/- as an advance of five months rent which was to be adjusted at the time of final settlement. The plaintiffs wanted to devour the said amount and as such this amount should also be adjusted in the arrears of rent. The learned trial court on 12.4.1966 passed an order determining the amount under Section 13(4) of the Act which included the arrears of rent from 1.7.1962 to 31.3.1966 amounting to Rs. 5175/-, Rs. 135/- towards water expenses and Rs. 610.65 by way of interest and thus determined a total amount of Rs. 5920.63 up and allowed the defendant to pay the same by 1.6.1966 to the plaintiffs and in case the plaintiffs did not accept, then to deposit the same in the court. On 1 6.1966 the defendant when sought further time for paying the aforesaid amount the trial court extended time upto 12.6.1966 and further directed that the defendant should produce a receipt of the amount from the plaintiffs and in case the plaintiffs did not accept, the defendant may send the amount by money-order. The plaintiffs on 4.7.1966 submitted an application under Section 13(6) of the Act that the defendant had not paid the amount as determined and as such the defence against eviction was liable to be struck off. The defendant filed a reply on 4.7.1966 to the aforesaid application and alleged that he had offered the amount to the plaintiffs but the plaintiffs evaded the time upto 11.6.1956, and when the same was offered to them on 12.6.1966, the plaintiffs refused to accept. it. The defendant filed a reply on 4.7.1966 to the aforesaid application and alleged that he had offered the amount to the plaintiffs but the plaintiffs evaded the time upto 11.6.1956, and when the same was offered to them on 12.6.1966, the plaintiffs refused to accept. it. As 12.6.1966 was Sunday, the defendant deposited the amount in the name of the plaintiff on 13 6.1966. The courts were closed on account of summer vacation and the Post-office did not accept the money-order for more than Rs. 600. It was further prayed that in case the plaintiffs wanted the amount the same can be brought from the Bank even today, and in case the plaintiff did not still accept the same, an order may be passed for depositing the said amount in the court. The learned trial court vide its order dated 7.10.1967 dismissed the application filed by the plaintiffs for striking out the defence. 3. The plaintiffs filed a revision against the aforesaid order of the trial court dated 7.10.1967 and the Hon'ble High Court in S.B. Civil Revision No. 70/1968 dismissed the revision on 18.12.1968 on the ground that an appeal lay under Section 22 of the Act against the order of the trial court and as the plaintiff did not file any appeal, a revision against the said order was not maintainable. The plaintiffs then filed a second application under Section 13(6) of the Act on 7.4.1970 on the ground that the defendant having ailed to pay for deposit the rent month by month after 31.3 1966, his defence against eviction was liable to be struck off. The defendant filed a reply to this on 27.5.1970 denying the contents of the application filed by the plaintiffs and took the plea that no suit was pending on the ground of default and that as the plaintiff was not accepting the amount of rent, the same was being deposited under Section 19 (A) of the Act. The learned trial court vide its order dated 30.5.1970 rejected the application of the plaintiffs placing reliance on a decision of this Court in Vishwa Nath Singh v. Gopilal, 1970 R.C.J. 871. In the aforesaid order the learned trial court mentioned that there was no dispute about the arrears of rent, the defence of the defendant could not be struck out unless the question of his having committed the default is list determined. In the aforesaid order the learned trial court mentioned that there was no dispute about the arrears of rent, the defence of the defendant could not be struck out unless the question of his having committed the default is list determined. The plaintiffs then submitted a third application on 13.5.1971 under Section 13(6) of the Act on the ground that the defendant had not paid any rent month by month even after 30.5.1970 and the defence of the defendant was liable to be struck off. The defendant filed a reply to this application on 20.5.1971 and alleged that the application was filed mala fidely and the arguments in the case had been concluded and the case itself had been fixed for final disposal on 14.5.1971 and during the course of arguments no question of default came up for consideration and as such the application was not maintainable being highly belated. It was also alleged that the application was vague. The plaintiffs have not mentioned specific and particular defaults in the application. The trial court did not consider it necessary to determine this application separately but passed an order on 26.6.1971 that this application would be decided along with the final decision of the suit. The learned trial court thus while deciding the main suit held that the defendant had not deposited the rent month by month after 30.5.1970 which act was not disputed by the defendant , his defence against the eviction was liable to be struck of. He placed reliance on a judgment of Division Bench of this Court in Saligram v. Narottamlal, 1971 R.C.J. 538, in which the view taken by Hon'ble Bhargava, J. in Vishwanath Singh v. Gopilal (Supra) was over ruled and also placed reliance in Hari Shanker v. Vimla Devi, S.B. Civil Second Appeal No. 105 of 1971, decided on 7.5.1971, by Hon'ble Lodha, J (as he then was). The learned District Judge on appeal took the view that though it was true that no issue for default was necessary, the attention of the court could be drawn by means of an application whenever there was a contravention of Sub-Section (4) of Section 13 of the Act in respect of month to month payments and the defence could be struck of at any stage but as the lower court had postponed the matter till the final decision by the court and even that decision did not hold that the defence be struck of , therefore, the defence could not be struck of now. As even in appeal a request was made that the defence be struck off on the ground that month to month payment in rent was not made for deposited by the defendant as required by Sub-Section (4) of Section 13 of the Act no grouse can now be made in this connection.Learned counsel for the appellants have contended that it is nowhere the case of the defendant that he had paid or deposited the rent month by month after 21.3.1966 and in any case after 30.5.1970 and as such he did not comply with the mandatory provisions of Section 13 (4) of the Act and the plaintiffs were entitled to a decree for eviction on the ground of Section 13 (1) of the Act which allows a landlord to obtain a decree for eviction if a tenant was a defaulter in the payment of rent for more than six months. It is submitted that the view taken by Hon'ble Bhargava, J. in Vishwanath Singh v. Gopilal (Supra) has been overruled by a Bench decision of this court in Saligram v. Narottamlal (supra) It is contended that no order of the court was required for depositing the entire rent month by month after the passing of any order under Section 13 (4) of the Act and it was the bounden duty of the tenant to pay for deposit the rent month by month i he wanted to save himself from eviction on the ground of default under Section. 13 (1) of the Act. It is also contended that an appeal is continuation of a suit and an order for striking out the defence can be passed at any stage of litigation which in the trial court for in appeal. 13 (1) of the Act. It is also contended that an appeal is continuation of a suit and an order for striking out the defence can be passed at any stage of litigation which in the trial court for in appeal. Reliance is placed on the following observations of their Lordships of the Supreme Court in Radha Kishan Sao v. Gopal Modi and Ors, 1977 R.C.R. 749. "It is submitted by the defendant that an order under Section 11 A can be passed only by the trial court. We are, however, unable to accept this position, since appeal is a continuation of the suit. The advantage which is given to the landlord under Section 11 A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy can be secured by the landlord at any stage of the litigation, whether in the trial court for in appeals. The penalty of striking out defence for non-compliance of an order under Section 11 A has to be kept distinct from the grounds of eviction permitted under Section 11 of the Act". Reliance is also placed on the following observations in Mohan Lal v. Lakhe Khan, 1970 R.C.J. 333. "Thus in a suit for eviction brought by the landlord on the ground of non-payment of rent, it is compulsory for the tenant to comply with Section 13 (4) of the Act irrespective of all other considerations and i he does not do so benefits of the Act would not be available to him. In this view of the matter there is no room for argument that the plaintiff had abandoned the ground of default by the tenant in payment of rent, Sub-Section (4) makes it obligatory on the part of a tenant to deposit the rent in arrears and to continue to deposit for pay the monthly rent thereafter in the manner provided therein and Sub-Section (7) makes it clear that if the tenant does so then he cannot be evicted even though he may have committed default in payment of rent as provided under Sub-Section (1), C1 (a). But in order that he may claim protection from eviction on the ground set forth in Clause (a) of Section (1) of Section 13, it is obligatory for him to comply with the provisions of Sub-Section (4) and if he does not do so, his defence against eviction under the Act has to be struck out under Sub Section (6). In other words the safeguard provided to the tenant under Section 13 of the Act which is a special law ceases to be available to him on his failure to carry out the statutory obligations imposed upon him by that Section itself ." 4. Mr. Agarwal, learned counsel for the respondent raised the following contentions: 1. The plaintiffs have already given up their case on the ground of reasonable and bona fide personal necessity in this court as stated by them on 4.5.1979. In this view of the matter the case remained only on the ground of default and the tenant having complied with the order passed by the trial court en his application under Section 13 (4) of the Act, their suit on the ground of default automatically comes to an end and now there was question of passing a decree on the ground of default even if the tenant is held to be guilty of not depositing the rent month by month. 2. The objection with regard to the default in the payment of rent month by month cannot be raised in the second appeal, if any application for striking out defence is moved by a landlord in the trial court and that court passes an order adverse to the landlord then he can in appeal go now under Section 22 of the Act and then in revision to the High Court. It is submitted that the powers of the appellate court are combined to those contained in Section 107 of the C.I.C. and the application by the landlord on 4.7.1966 was rejected by the trial court on 7.10.1967 and a revision against the said order was also dismissed by the Hon'ble High Court on 18.12.1968 and as such no objection can be raised which existed up to that date. The second application filed by the landlord on 7.4 1970 was also dismissed by the trial court vide its order dated 30.5.1 70 and the plaintiffs having not filed any appeal against the aforesaid order under Section 22 of the Act, he was not entitled to challenge the same in the second appeal. For the third application filed by the plaintiffs on 13.5.1971 it is submitted that the arguments in the main suit had already been made on 6.6.1971 and the case was fixed for judgment on 11.5.1971, and, therefore there was no occasion for tiling the application on 13.5.1971 and the same could not be considered at the time of the final disposal of the suit. 3. That the defendant had not admitted him to be a defaulter in the payment of rent and unless an issue is framed in this regard and thereafter the defendant is held to be a defaulter, then alone his defence against the eviction could be struck off. 4. The plaintiffs having received the amount of rent deposited by the tenant, have waived their right to obtain a decree on the ground of default and are estopped from their conduct to seek any relief under Section 13(1) of the Act. Reliance is also placed on the following observations in Ranchhod Lodha v. Madhabikanji, 1975 R.C.J. (S.N.62) 52. "Order under Section 11A directed the tenant-defendant to pay monthly rent on 15th of each subsequent month. defendant made delay but deposited the rent of several months. plaintiff withdrew the deposited rent and subsequently applied for striking off defence on the ground that defendant had committed bleach of the Court's order. Held : that the plaintiff is deemed to have waived his right to make such application, accrued to him under Section 11A when he withdrew the amount (without any grievance) and that the trial court had committed material irregularity in exercise of its jurisdiction in striking out the defence. 1964 BLJR 24 and AIR 1955 Supreme Court 101. Distinguished." Bandi Sah v. Gangauri Sah, 1678 (2) S.C.R. 674. : " The landlord filed a suit for ejectment of tenant on ground of arrears of rent and bona fide requirement. The Court ordered the tenant to deposit arrears of rent and future rent by 15th of each month. The tenant deposited arrears of rent within time. Distinguished." Bandi Sah v. Gangauri Sah, 1678 (2) S.C.R. 674. : " The landlord filed a suit for ejectment of tenant on ground of arrears of rent and bona fide requirement. The Court ordered the tenant to deposit arrears of rent and future rent by 15th of each month. The tenant deposited arrears of rent within time. The future rent was also deposited from time to time except for the month of July, 1970 which was deposited out of time. The landlord withdrew all the rents except for the months of July 1970 and August, 1970. The landlord also withdrew the rent subsequent to the said months. The question that cropped up before his lordship was whether the withdrawal of rent subsequent to month of July, 1970 amounted to waiver of default on the part of landlord. Held, the rent for the months from September 1970 to April, 1971 having been withdrawn along with the deposit for the period be ore July, 1970, it must be held that the plaintiff waived his right to get the defence struck out for the admitted default for the aforesaid one month. It was the plaintiff 's option to withdraw rents subsequent to the month of July, 1970 treating them as valid deposits under Section 11A of the Act for not to withdraw them at all taking the stand that for default of July, 1970 the Court was bound to strike out the defence under Section 11A of the Act and therefore, any deposit subsequent to the period of default was not valid deposit under Section 11A of the Act. I am further of the opinion that it becomes immaterial on the acts and in the circumstances of the case as to whether the lent for July, 1979 was withdrawn for not. The argument on behalf of the opposite party that as soon as the default was made for the month of July, 1970 the defence of the petitioner as against ejectment automatically stood struck out does not support the opposite-party in any way, rather this argument goes against the contention of the opposite party and supports the petitioner that subsequent deposit of rent after July, 1970 could not be a deposit under Section 11A of the Act." 3. Lastly it was contended that the tenant was not given any opportunity to contest the application filed by the plaintiff -landlord dated 13.5.1971, on merits. Lastly it was contended that the tenant was not given any opportunity to contest the application filed by the plaintiff -landlord dated 13.5.1971, on merits. The respondents were thus entitled to show that they had deposited the rent month by month and had not made any default in such deposits. 5. I have given my careful consideration to the arguments advanced by the learned counsel for both the parties. Before examining the contentions I would mention the relevant provisions of Section 13 sub-sections (1) (a), (4), (6) and (7) of the Act as it existed at the relevant time : Section 13 (1) (a):-that the tenant has neither paid nor tendered the amount of rent due from him for six months. 4. In a suit for eviction on the ground set forth in clause (a) of sub- section (1), with for without any of the other grounds referred to in the sub-section, the tenant shall, on the first day of hearing or on or before such date as the Court may, on an application made to fix in this behalf, for within such time not exceeding two months, as may be extended by the Court, deposit in Court for pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit for payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit for pay month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate. 5. If a tenant fails to deposit for pay any amount referred to in sub- section (4) of sub-section (5) on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. 6. 5. If a tenant fails to deposit for pay any amount referred to in sub- section (4) of sub-section (5) on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. 6. If a tenant makes deposit for payment as required by sub-section (4) for sub-section (5), no decree for eviction on the ground specified in clause (a), of sub-section (1) shall be passed by the Court but the Court may allow such costs as it may deem it to the landlord. It would be clear from the reading of the above provisions that no court shall pass any decree in favour of a landlord evicting the tenant unless anyone of the grounds existed as mentioned in Clauses (a) to it (1) of Sub-section (1) of Section 13 of the Act. Clause (a) mentions one of the grounds, namely, that if the tenant has neither paid nor tendered the amount of rent due from him for six months then he is liable to eviction. Sub-section (4) makes it obligatory on the part of the tenant to deposit the rent in arrears and continue to deposit for pay the monthly rent thereafter in the manner provided therein and if he does not do so benefits of the Act would not be available to him. If a tenant wants to claim protection from eviction on the ground set forth in clause (a) of Sub-section (1) of Section 13 of the Act, it is obligatory for him to comply with the provisions of Sub-section (4) and i he does not no so, his defence against eviction is bound to be struck out under Sub-section (6). Under Sub-section (7) if a tenant makes deposit for payment as required by Sub-section (4) for Sub-section (5), no decree for eviction on the ground specified in clause (a), of Sub-section (t) shall be passed by the Court but the Court may allow such costs as it may deem it to the landlord. Under Sub-section (7) if a tenant makes deposit for payment as required by Sub-section (4) for Sub-section (5), no decree for eviction on the ground specified in clause (a), of Sub-section (t) shall be passed by the Court but the Court may allow such costs as it may deem it to the landlord. But in case he does not make such deposits and till then any suit for eviction on the grounds of clause (a) of Sub-section (1) of Section 13 of the Act remains pending, in that case if it is proved that the tenant has defaulted in the payment of rent for six months, in that case the Court shall pass a decree for eviction on the ground mentioned in clause (1) of Sub-section (t) of Section 13 of the Act. Sub-section (4) grants a special benefit to a tenant to deposit in court for pay to the landlord an amount calculated at the rate of rent at which it was last paid if he wants to save himself from default in a suit which is based on a ground of default alone or with other ground referred to in that Sub-section. If he wants to avail the special benefit then there is a further mandate by the legislature that he would continue to deposit for pay month by month by the 15th of each succeeding month. Now in a case based on default in the payment of rent for six months for more along with the other grounds like reasonable bona fide personal necessity a situation may arise where the tenant makes a deposit on the first date of hearing the tent and interest due up to the end of the month previous to that in which a deposit for payment in made but later on commits a default in deposit for payment of the subsequent rent month by month as contemplated under Sub-section (4). The landlord having cone to know that the tenant has not deposited the subsequent rent month by month, may give up his claim on the ground of reasonable bona fide personal necessity and may ask the court to grant a decree on the ground of default in the payment of rent under Section 13(1) of the Act only. The landlord having cone to know that the tenant has not deposited the subsequent rent month by month, may give up his claim on the ground of reasonable bona fide personal necessity and may ask the court to grant a decree on the ground of default in the payment of rent under Section 13(1) of the Act only. In that case the stage of striking of the defence will not arise and if the landlord proves by evidence for by pleadings of the parties and satisfies the Court that the tenant had neither paid nor tendered he amount of rent due from him for six month then a decree for eviction would be passed and Sub-section (7) would not give benefit to the tenant as he had failed to make a deposit for payment as required by Sub-section (4) of Section 13 of the Act. 6. Now taking the acts of the present case it was a suit for eviction on the ground of the tenant having neither paid not tendered the amount of rent due from him for six months under Section 13 (1) (a) of the Act and under clause (h) that the premises were required reasonably and bona fide by the landlord for the use for occupation for himself for his family Even if we ignore the two earlier applications filed by the plaintiffs on 4.7.1966 and 7.4.1970, the third application filed by the plaintiffs on 13 5.1971 clearly mentioned that the defendant had not paid of deposited the rent after 30th of May, 1970. In reply to this application filed by the defendant on 20.5.1971 it was nowhere mentioned that he had paid for deposited the rent month by month after 30.5.1970 as contemplated under Section 13 (4) of the Act. Even up to this date no material has been brought on record to show that such amount was paid for deposited by the defendant month by month. Even during the course of arguments it has not been contended by the learned counsel for the respondents that the defendant had paid for deposited the rent month by month. Thus it is held established beyond any manner of doubt that the tenant had not complied with the provisions of Section 13 (4) of the Act. Even during the course of arguments it has not been contended by the learned counsel for the respondents that the defendant had paid for deposited the rent month by month. Thus it is held established beyond any manner of doubt that the tenant had not complied with the provisions of Section 13 (4) of the Act. The suit for eviction is not bated on the ground of default only and it is only during the course of hearing of the appeal in this court that the plaintiffs appellants have given up their case on the ground of reasonable and bona fide personal necessity . Thus only question which remains for determination is whether the plaintiffs appellants have proved their case of default as mentioned in Clause (a) of Sub-Section (1) of Section 13 of the Act for the applicability of Sub-Section (7) of Section 13 of the Act will be seen which bars a decree for eviction on the ground specified in clause (a) of Sub-Section (1) of Section 13 of the Act, if the tenant proves that he had made a deposit for payment as required by Sub-Section (4) for (5). As regards the question whether the plaintiff have proved their case under Clause (a) of Sub-Section (I) of Section 13 of the Act, suffice to say, that the plaintiffs have clearly come forward with a case in the plaint that the tenant had not paid the rent from 1.7.1962 till the date of the filing of the suit i.e. 11.10.1963. The defendant in the written statement never disputed that such amount was not due against him nor he had taken the plea that he had paid for tendered such amount of rent to the plaintiffs. The only objection in this regard set up in paras Nos. 21 and 23 of the additional plea was that he had spent Rs. 1000 in the repairs of the premises and Rs. 590 were paid as advance rent for five months at the beginning of the tenancy. The amount of Rs. 1000 cannot be considered as a payment of rent. The defendant never raised any ground before the trial court to adjust these amounts in the arrears of rent either at the time when the amount was determined by the trial court on his application under Section 13 (4) of the Act nor at any time thereafter. The amount of Rs. 1000 cannot be considered as a payment of rent. The defendant never raised any ground before the trial court to adjust these amounts in the arrears of rent either at the time when the amount was determined by the trial court on his application under Section 13 (4) of the Act nor at any time thereafter. No issue was framed in this regard nor the learned counsel for the respondents seriously argued before this court for the adjustment of the above two sums in the arrears of rent. That apart, even i for argument's sake this amount is reduced from the arrears of rent claimed by the plaintiffs, still the defendant remains defaulter in the payments of rent for six months for more. Thus it is clear beyond any manner doubt, that the plaintiffs have been able to prove their case falling under Clause (a) of Sub-Section (1) of Section 13 of the Act. As already held above, the tenant has not made a deposit for payment as required by Sub-Section (4) for (5) of Section 13 of the Act, he cannot set up his case under Sub-Section (7). Thus there is no force in the first argument of the learned counsel for the respondent that it was a suit based on default only as the plaintiffs had given up their case on the ground of reasonable and bona fide personal necessity and no decree for eviction can be passed as the defendant had paid for deposited the amount of rent on the first date of hearing. I see no force in the second contention raised by the learned counsel for the respondents that such objection of default cannot be taken in second appeal. The objection was raised before the trial court by the plaintiffs by moving an application on 13.5.1971 and the same was decided by the trial court along with determination of the final suit. It has been observed by their Lordships of the Supreme Court in Radha Krishan Sao v. Gopal Modi and Ors : (Supra) that an order striking out the defence can be passed at any stage of the litigation whether in the trial court for in appeal. It has been observed by their Lordships of the Supreme Court in Radha Krishan Sao v. Gopal Modi and Ors : (Supra) that an order striking out the defence can be passed at any stage of the litigation whether in the trial court for in appeal. The question arising on the basis of the application dated 13.5.1971 was directly of consideration before the trial court as well as by the first appellate court and is for consideration in this second appeal. 7. As regards the third contention raised by the learned counsel for the respondents, the defendant never contested in his written statement that he had paid for tendered rent and was thus not liable to the payment of rent for six months for more, as such there was no question of framing any issue and as already discussed by me above, the defendant had not denied that the rent from 1.7.1962 to 11.19.1965, as claimed by the plaintiffs in the suit was not due against him. There is thus, no force in the third submission made by the learned counsel for the respondents. 8. As regards the fourth contention, about waiver, Patna cases are not at all relevant in the present case. In the two cases of Patna High Court relied upon by the learned counsel for the respondent the question was about the waiver of rent deposited somewhat late. There is no such controversy in the present case. The tenant has not at all deposited the rent due after 30.5.1970 month by month. That apart it is well settled now by various decisions of this court that withdrawal of the amount of rent by landlord which is deposited by the tenant during the course of pendency of the suit for eviction, does not amount to waiver. It is also mentioned in Section 19-D of the Act that the arrears of rent in respect of the period of default in payment of rent shall operate as a waiver of such default only when there is no proceeding pending in the court for the recovery of possession of the premises. 9. It is also mentioned in Section 19-D of the Act that the arrears of rent in respect of the period of default in payment of rent shall operate as a waiver of such default only when there is no proceeding pending in the court for the recovery of possession of the premises. 9. As regards the fifth objection raised by the learned counsel for the respondents that no opportunity had been given to him to meet the contentions raised in the application filed by the plaintiffs on 13.5.1971, I find no force inasmuch as in the reply to this application filed by the defendant on 20.5.1971, it has nowhere been alleged that he had paid for deposited the rent after 30 5.70. Even up to the stage of argument before this court no material has been placed to show that such amount was paid for deposited as contemplated under Section 13 (4) of the Act. 10. In view of this situation the question does not arise of remanding the case for giving any opportunity to the defendant to show that he had paid for deposited the rent after 30.5.1970 month by month as required under Section 13(4) of the Act. 11. In the result, I allow this appeal, set aside the judgment and decree passed by the learned District Judge, Jaipur City dated 12.3.1973 and decree the suit of the plaintiffs for eviction. In the end, learned counsel for the respondent also made request that in case this court was going to accept the appeal, the respondents who are the legal representatives of the deceased Manoharlal and are living in the suit premises for a very long time, should be granted a year's time to vacate the suit premises. I am not prepared to grant a long time as prayed by the learned counsel for the respondents, but in the interest of justice, deem it proper to grant three months time from today to vacate the suit premises. The appellants shall be entitled to costs throughout.Appeal allowed. *******