JUDGMENT : 1. This is a second appeal against the judgment and decree, dated 3rd December, 1985 passed by Distt. Judge, Tonk, affirming the decree of learned Munsif, Tonk, dated 27th July, 1982 and decreeing the suit for eviction and arrears of rent. 2. The plaintiff-respondent filed a suit for arrears of rent and ejectment against the appellant with the allegation that the appellant was a tenant of a shop belonging to the plaintiff-respondent, in Tonk at the rate of Rs. 10/- per month. The shop was initially given on rent on 26.5.1962 and a rent note was executed for a sum of Rs. 8/- per month. Thereafter, the rent was increased to Rs. 10/- per month. Since the defendant-appellant has not paid the rent since more than three years, he is a defaulter. It was further asserted that the shop is required for the reasonable and bonafide need of the plaintiff as his elder son Javed lqbal was sitting idle after passing his B. Sc. examination and since he is not able to get any suitable employment. Since his son was conversant and had sufficient knowledge about the sale of electric goods, his son wanted to start a business of electrical goods in the suit shop and that the plaintiff had no other suitable and better shop than the suit shop. The suit was contested by the defendant-appellant and it was submitted that he is not a defaulter and no rent was due to the plaintiff. It was further submitted that the suit shop is not required reasonably and bonafide by the plaintiff as his son Javed lqbal was doing the work of a contractor and has got a poultry farm and the plaintiff is a monied man and owns several shops in the city of Tonk, whereas the defendant has no other suitable accommodation except the suit shop where he carries on his business and earns his livelihood and the suit has been filed merely to increase the rent and that the greater hardship would be caused to the tenant if a decree for eviction is passed against him. 3. On the basis of the pleadings of the parties, the learned trial court framed as many as six issues. 4. 3. On the basis of the pleadings of the parties, the learned trial court framed as many as six issues. 4. Arrears of rent were determined by he trial court under section 13 (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the 'Rent Control Act'), which was deposited by the defendant- appellant within time given by the court and he also continued to deposit the monthly rent within time during the pendency of the suit. 5. Since the tenant appellant had deposited the rent, the trial court while deciding the Issue No. I held that defendant was a defaulter but since he has deposited the rent, he has secured the protection of the Rent Control Act. The trial court decided Issue No. 5 also against the tenant. The trial court decided Issues No. 2, 3 and 4 in favour of the plaintiff and held that the suit shop was required reasonably and bonafidely by the landlord for his son Javed Igbal and the greater hardship would be caused to the plaintiff rather than the defendant and ultimately, the learned trial court decreed the suit of the plaintiff only on the ground of personal necessity. 6. The tenant appellant preferred an appeal before the District Judge, Tonk who by his judgment dated December 3, 1985 reversed the finding of the trial court on the issues of bonafide necessity and comparative hardship, and came to the conclusion that the plaintiff was not entitled to the decree of eviction on this ground. However, it found that since the tenant appellant failed to deposit the rent regularly during the pendency of the appeal, his defence was liable to be struck off. He also passed the decree for eviction against the defendant appellant, even though he had come to the conclusion that the suit property is not required reasonably and bonafide by the plaintiff landlord. 7. It is, against this judgment and decree that the present second appeal has been filed by the tenant. 8. The respondent landlord had filed a caveat and when the appeal came up for admission, the learned Single Judge heard the learned counsel for the parties at length and framed the following substantial questions of law which aries in this appeal : "1. Whether after decision of suit, the defendant was under no obligation to deposit rent month by month ? 2. Whether after decision of suit, the defendant was under no obligation to deposit rent month by month ? 2. Whether the appellate court was wrong in striking out defence in the facts and circumstances of the case on the failure of the tenant to deposit rent month by month. 3. Whether the defence for non payment of monthly rent can be struck off only with regard to ground of default and not with regard to other grounds for eviction ? 9. Learned counsel for the appellant submitted that the suit was of course based on the ground of default as well but since the tenant deposited arrears of rent as determined by the court, in accordance with law and within the time prescribed, the ground of default disappeared and no decree of eviction could be passed on the ground of default, and as soon as the suit was decided by the trial court and appeal was filed before the first appellate court, the tenant was under no obligation to deposit the rent month by month during the pendency of the appeal nor any order was passed by the appellate court directing him to pay the rent month by month and even if the tenant made some default in depositing the rent month by month during the pendency of the appeal, his defence could not be struck off. He has further submitted that the learned first appellate court could not have passed a decree of eviction particularly when it had come to the conclusion that ground of bonafide and reasonable necessity had not been proved by the land-lord. He has placed reliance on a number of authorities and before I discuss them, I will like to reproduce Sections 13(4) and 13(5) of the Rent Control Act : "Sec. 13(4)-The tenant shall deposit in Court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the Court under sub-section (3). Section (5)-if a tenant fails to deposit or pay any amount referred to in sub-section (4) (xxx) 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. 10. Learned counsel for the appellant has placed reliance on (1) Kedar Nath Gupta V. Bishan Has (1979 RLW 158) . That was also a case in which the suit was filed for ejectment on the ground of default as well as for reasonable and bonafide necessity. The trial court had determined the amount of arrears of rent and directed the defendant -tenant to deposit the same in court. During the pendency of the suit, section 13-A was enacted and the defendant had moved an application u/s 13-A of the Rent Control Act and the trial court determined the amount and defendant deposited the amount so determined and ultimately, the suit was dismissed. The plaintiff preferred an appeal and during the pendency of the appeal, the plaintiff-landlord moved an application u/s 13(5) of the Rent Control Act that the defendant-tenant had not deposited the rent month by month by the 15th of each succeeding month, and therefore, his defence was liable to be struck off. But the learned Addl. District Judge dismissed that application and revision against that order was filed in High Court which was also dismissed summarily by a detailed order. It was observed that "if there was no liability to deposit the rent month by month in the suit itself after the payment of the amount determined u/s 13-A how could any liability arise on the defendant to deposit the rent month by month during the pendency of the appeal". It was observed that "if there was no liability to deposit the rent month by month in the suit itself after the payment of the amount determined u/s 13-A how could any liability arise on the defendant to deposit the rent month by month during the pendency of the appeal". As already observed above, the proceedings having been disposed off as if the tenant has not committed any default u/s 13-A(b), no question remains for depositing the amount month by month during the pendency of the suit or in the appeal," and the case cited by the landlord (2) Abdul Hameed v. Hakeem Ahmed Ullah Khan was held to be not applicable, which was from Bombay. 11. Learned counsel for the appellant then relied upon (3) Kewal V. Sesmal (1981 RLW 77) . In that case, a suit was instituted for arrears of rent and ejectment on the ground of default, and reasonable and bona fide necessity. An application u/s 13(3) of the Rent Control Act was filed by the defendant. raising dispute regarding the amount of rent and stating that he is not a defaulter. The learned trial court determined the amount and the tenant deposited the amount so determined within time. The suit was ultimately dismissed for ejectment. During the pendency of appeal by the landlord, an application u/s 13(5) of the Rent Control Act was filed by the plaintiff that the defendant tenant has not paid the rent during the pendency of the litigation, both in the trial as well as the appellate court, therefore, his defence should be struck off. It was contended by the tenant that it was not necessary for him to have deposited the rent month by month after the suit for ejectment was dismissed. The learned first appellate court accepted the application and struck out the defence. The appeal preferred by the tenant was accepted and it was held that after the suit was dismissed, the tenant was under no obligation to deposit rent month by month, after discussing (4) Vera Abbasbhai V. Haji Gulamnabi ( AIR 1964 SC 1341 ) , (5) Dayawati V. Inderjit ( AIR 1966 SC 1423 ) and (6) Lalchand Jematmal V. Nanabhai Ranchhod Das (AIR 1976 Gujarat 122) . Bombay Rent Act was discussed at length and it was observed that its provisions are different and therefore, not helpful in interpreting provisions of Rajasthan Act. 12. Bombay Rent Act was discussed at length and it was observed that its provisions are different and therefore, not helpful in interpreting provisions of Rajasthan Act. 12. Learned counsel for the appellant also relied on (7) S.S. Harishchandra Jain and others V. Dr. Captain Indersing Bedi ( AIR 1977 MP 199 ) (FB) , wherein the five Judges of the Madhya Pradesh High Court resolved the conflict between the several judgments of the Madhya Pradesh High Court and held after discussing at length, that since the word 'appeal' was not specifically used in Section 13(1) of the Rent Control Act, it is unthinkable that the framers of the Act would use the word 'Proceeding' for 'appeal' when they have distinctively used the word 'suit' in sub-sections (1) and (2). It was further observed that as only a 'suit' is contemplated for eviction of the tenant on any of the grounds contained in section 12(1), the word 'proceeding' as distinct from a suit, is without meaning in sub-sections (I) and (2), of section 13. The very language of sub-section (6) shows that it applies to suits only. There is no justification for reading the words 'hearing of the suit in the appellate court' which expression would be un-natural in legal par- lance. Viewed in this light there is no consequence of non-deposit of rent in appellate court, Section 13 must be read as a whole. When so read, it clearly applies to suits only. Any cloud cast by the word 'appeal' in the sub-section (2) vanishes when it is closely scrutinised and analysed in relation to other sub- sections. 13. In para 26 of the judgment, their Lordships held as under : "In the present context, cases may be categorised into three : (1) when a decree for ejectment is passed against a tenant; (2) When the landlord's suit is dismissed because of the special protection contained in S. 12 (b); and (3) When the suit for eviction is dismissed because no ground as required in sub-ss. (a) to (p) has been proved. In case (1) the landlord can execute his decree and obtain possession. If the tenant seeks stay from the appellate court, he can be put to terms and can thus be required to deposit rent during the pendency of the appeal. (a) to (p) has been proved. In case (1) the landlord can execute his decree and obtain possession. If the tenant seeks stay from the appellate court, he can be put to terms and can thus be required to deposit rent during the pendency of the appeal. In case No. (2), the tenant is automatically required to go on paying rent directly to the land- lord. He can at the most commit two consecutive defaults; otherwise, lie can be readily evicted, in as much as the protection under s. 12 (3) will not then be available. It is made available only once. In case No. (3), there is no equity in favour of the landlord, for which the tenant should be compelled to deposit rent during the pendency of the landlord's appeal, and then he is subjected to a great risk of his defence being struck out in case of a single default. He has to presume and anticipate that an appeal may be preferred against him. so that he must find out the appellate Court, where the landlord might prefer an appeal against him and go on depositing rent from the very next month of the date of the decree, because the words "still the decision of appeal" connote a continuity and no break, as between the date of notice of appeal. If he commits a single default he loses the protection under S. 12 (3)". 14. He has also placed reliance on (8) Sharat Chand V. Vishnu Pant (1978 (2) R. C. R. 505) . another decision of the Madhya Pradesh High Court by Seven Judges, wherein an authoritative pronouncement was made. A larger Bench was constituted as the correctness of the full bench decision in Harish Chandra (Supra) was doubted in view of the Supreme Court decision in (9) Radha Kishan Sao V. Gopal Modi and others ( AIR 1977 SC 1217 ) , from Bihar and after comparing the two Acts of Bihar and Madhya Pradesh, it was held that "it is not correct to think that for all purposes an appeal is to be considered as continuation of the suit. It has to be seen in context of the suit in each case, whether an appeal would be continuation of the suit, for the particular purpose under consideration. It has to be seen in context of the suit in each case, whether an appeal would be continuation of the suit, for the particular purpose under consideration. Having regard to the provisions contained in sub-section (1) of Section 13, their rigour and impact, it is not possible to construe the word 'suit' as including appeal on the basis that an appeal is continuation of the wait." 15. Reliance was also placed on another decision of this court in (10) Siya Saran V. Sagarmal Modi & others (1982 R. L. R. 304) wherein it was held that "if in a given case on account of the application of section 13-A the effect of sub-section 13 (I) (a) disappears and which, in the eyes of law, becomes non-existent for all intends and purposes then the entire pyramid falls flat on the floor." It was further held that "It is difficult to imagine a situation where a tenant can be deprived of the opportunity of leading evidence in defence for sub- letting or for other grounds even after the ground of default under sub-clause (a) disappeared on account of compliance of sub-section (b) of Section 13-A of the Act. Sub-sections (3), (4), (5) and (6) of Section 13 cease to apply in a composite suit which was based also on the ground of default, but that ground of default disappeared and has become non existent in the eyes of law on account of payment of rent after its adjudication u/s 13-A.... Once the ground (a) disappears and becomes non-existent on account of legislative mandate of Section 13-A (b), then any order passed under sub-sections (3), (4), (5) and (6) will not adversely affect the rights of the tenant, and subsequent default by the tenant in depositing the rent by 15th of each month will not entail striking out of the defence for other grounds." 16. Reliance was also placed on (11) Shyamlal & another V. Upbhokta Sahakari Samiti (1982) R. L. R. 1005) , decided by Hon'ble Mr. Justice M. C. Jain, wherein it was held that "if the tenant deposited the amount of rent u/s 13 (4). ground of default ceased to exist and no trial on the ground of default thereof is contemplated and it is not necessary to go into the question whether the tenant has committed any default or not. 17. Justice M. C. Jain, wherein it was held that "if the tenant deposited the amount of rent u/s 13 (4). ground of default ceased to exist and no trial on the ground of default thereof is contemplated and it is not necessary to go into the question whether the tenant has committed any default or not. 17. Reliance was also placed on two unreported judgments of this court in (12) Daulatram V. Gyanchand Jain (S. B. Civil Second Appeal No. 12/79, decided on 18.7.85) and (13) Kedarnath V, Laxman Das, (S. B. Civil Revision No. 267/76, decided on 11.7.1979) . 18. In the case of Kedarnath V. Laxman Das (supra), Hon'ble G. N1. Lodha, J. of this court after discussing the entire scheme of section 13 of the Rent Control Act and connected provisions, held that provisions of section on 13 (3), (4), (5) etc. can be made applicable to suits only and in case of appeal, they will be unworkable. It was, therefore, held that the law did not require deposit of rent month by month during the pendency of appeal. 19. On the other hand, learned counsel for the respondent has submitted that it is true that it is a beneficial legislation to protect the tenants from eviction by the landlords, but all the same it ensures that the landlord receives the payment of the premises regularly by the tenant and if the tenant makes a default, his defence is liable to be struck off and in this connection has placed reliance on (14) Mranalini B. Shah and another V. Bapalal Mohanlal Shah ( AIR 1980 SC 954 ) . He has further submitted that since the decision of Supreme Court in Mrinalani B. Shah's case (supra) was not considered by this court in Kedar Nath Gupta's (supra) and in the case of Kewal V. Sesmal (supra), this court should not place any reliance on those authorities. Reliance has also been placed on (15) AIR 1986 J & K. 12. 20. 1 have given my thoughtful consideration to the whole matter and have also considered the submissions made at the bar, & have carefully examined the provisions of law & gone through the various authorities relied by the learned counsel for the parties. 21. Reliance has also been placed on (15) AIR 1986 J & K. 12. 20. 1 have given my thoughtful consideration to the whole matter and have also considered the submissions made at the bar, & have carefully examined the provisions of law & gone through the various authorities relied by the learned counsel for the parties. 21. 1 have already quoted the provisions of the Rajasthan Act and with a view to appreciate the observations of the Supreme Court in the case of Mranalini B. Shah (supra), I think it proper to quote section 12 (3) (b) of the Bombay Act as under : "No decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court". 22. The words 'till the suit is finally decided' used in the Bombay Act are of special consequences and it was in this connection that the Supreme Court in the aforesaid case observed that the expression 'suit' in the aforesaid sub- clause (b) includes appeal. It was further held that the provisions of clause (b) of Section 12 (3) are mandatory and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. Similarly, the word 'regularly' in clause (b) of Section 12 (3) has a significance of its own, whereas the words in our enactment are quite different. The Supreme Court in Dayawati's case (supra) has held as under : "An appeal has been said to be 'the right of entering a superior court, and invoking its aids the interposition to redress the error of the court below'. The only difference between a suit and an appeal is this that an appeal 'only reviews and corrects the proceedings in a cause already constituted but does not create the cause'. As it is intended to interfere in the cause by its means. The only difference between a suit and an appeal is this that an appeal 'only reviews and corrects the proceedings in a cause already constituted but does not create the cause'. As it is intended to interfere in the cause by its means. it is a part of it, and in connection with some matters and some statutes it is said that an appeal is a continuation of a suit". 23. From this decision. it is clear that an appeal is a continuation of the suit in the context of some statutes only. Under the Rajasthan Act, and keeping in mind the intention of the legislature and the language of section 13 of the Rent Control Act, an appeal cannot be held to be a continuation of a suit for the purpose of second part of section 13 (4) of the Act, as has been held by this court in Kewal V. Sesmal (supra). The Supreme Court case Mrinalani Shah (supra) is based on the language of the Bombay Act, and the provisions of that Act are quite different from that of our Act and therefore, they are of no avail for coming to a correct decision in the present case. 24. The case, Radha Kishan Sao V. Gopal Modi & others ( AIR 1977 SC 1217 ) (supra) cited by the learn,.d counsel for the respondent, does not help him. Perusal of paras 12 and 13 of the report makes it clear that in that case, the alleged default took place during the pendency of trial, and it was urged before the appellate court that the trial court should have struck off the defence which it did not and, therefore, the appellate court should exercise the power and now struck off the defence. This is really the function of the appellate court as the appeal is nothing but re-hearing of the suit as laid down by the Supreme Court in Dayawati's case (supra). This authority, therefore, does not lay down that the word 'suit' includes appeal for all purposes regardless of the context and purpose. 25. having given my thoughtful consideration to the entire matter, I am in agreement with the views expressed by this court in the cases of Kedarnath Gupta V. Bishan Das , Kedarnath V. Laxmandas and Kewal (supra), and therefore, I do not think it necessary to discuss in more detail. 26. 25. having given my thoughtful consideration to the entire matter, I am in agreement with the views expressed by this court in the cases of Kedarnath Gupta V. Bishan Das , Kedarnath V. Laxmandas and Kewal (supra), and therefore, I do not think it necessary to discuss in more detail. 26. Learned counsel for the respondent also challenged the finding of the first appellate court on the issue of bonafide personal necessity and comparative hardship which was decided against him. He has also filed cross-objections. 27. I have carefully gone through the judgments of the two courts below as well as the record of the case, including the evidence adduced by the parties. The findings recorded by the courts below regarding reasonable & bonafide necessity as well as comparative hardship are findings of fact based on appreciation of evidence & this court in second appeal cannot interfere with the finding of fact arrived at by the first appellate court which is based on merely appreciation of evidence and no substantial question of law is involved. The first appellate court has considered the entire evidence led by the parties and has given its reasons in detail for not agreeing with the findings given by the trial court and ultimately holding that the suit premises are not reasonable or bona fide required by the landlord respondent and greater hardship would be caused to the tenant rather than the landlord and I am in agreement with the view expressed by the first appellate court in that regard. Therefore, it is not necessary for me to discuss the entire evidence de novo. 28. In the result, the appeal is allowed, the judgment of the learned first appellate court is set aside, the cross objections filed by the landlord respondent are dismissed and the suit of the plaintiff landlord is dismissed but in the facts and circumstances of the case, I leave the parties to bear their own cost.Appeal allowed. *******