G.M. LODHA, J.—This is a civil second appeal against the judgment and decree dated 27.5.81 passed by Shri M. A. Khan RHJS, Addl. District Judge No. 1, Alwar in civil first appeal No. 59/79. 2. The first appellate court has granted decree for eviction on the ground of default of tenant in payment of rent u/s. 13 of the Raj. Premises. Act. Both the courts have not accepted the landlords plea of personal necessity. The disputed property is of Deity and the plaintiff claims to be landlord as pujari. 3. In this second appeal against the decree for eviction, Mr. Garg has argued that in view of the application dated 4.1.1975 it was the duty of the trial court to determine the rent and interest etc. and then provide time for making payment of the determined amount. This was not done and it has vitiated the entire proceedings. Mr. Garg then argued on account of this the subsequent late significance, as the court could not have proceeded further without determination under sub-section 5. 4. Mr. Lodha appearing for the landlord argued that as there was no dispute about the rate of rent payable to the plaintiff therefore, sub-section 3 to 5 are not applicable. He further argued that section 13-A came into force during the pendency of the suit, sub-section 5 of the section 13 becomes redundent. It was also argued that the order for striking of the defence was not challenged by appeal by the tenant and therefore, it became final. 5. Even in first appeal too it was not attracted, and therefore, also it will be deemed to have been waived. 6. Mr. Garg in his rejonder has vehemently opposed the above contention of Mr. Lodha. 7. On a thoughtful consideration of the entire matter, including the submission of learned counsel for the parties, the decisions and the pleadings referred to by them. I am of the opinion that the appeal must succeed. 8. The copy of the application dated 4.1.1975 clearly shows that the tenant prayed for determination of the rent and interest so that he could deposit the same. It is immaterial as to what was the reason given by the tenant for praying for such determination. I am of the opinion that the appeal must succeed. 8. The copy of the application dated 4.1.1975 clearly shows that the tenant prayed for determination of the rent and interest so that he could deposit the same. It is immaterial as to what was the reason given by the tenant for praying for such determination. I am of the opinion that according to clause 1 sub clause 4 and 5 of the Rajasthan Premises (Control of Rent and Eviction) Act, as per application dated 4.1.1975 it was the duty of the court to determine the rent and this has not been done and therefore, all further proceedings are vitiated so far as they are adverse to the tenant. The two judgments of this court Bheru V. Shasi Lal (1). and so also Jagmohan V. Gani (2), fully supports this view. 9. In Jagmohans case this court has gone even further and held that the tenant need not move a formal application and if the courts does not determine the amount payable by the tenant, the tenant is not under obligation to ask the court to determine the amount. 10. In the present case Mr. Lodhas submission that on account of section 13 A having come into force, the dispute about sub section 5 becomes irrelevant, is also untenable. Although he submitted that a Division Bench Judgment of this court in Kishanlal Sharma vs. Prem Kishore (3) and earlier judgment of M/s. Carona Sahu Co. Ltd. v. Vinod Kumar Goyal (4) supports his view but I am of the opinion that no such deduction can be made from these judgments. 11. The Bench decision of Kishanlals case is just contrary to what Mr. Lodha wants this court to believe. It says that sub-sections 3, 4 and 5 clearly give substantive rights and they are not procedural. It further says that even after amendment, suit will be tried in accordance with old Act. 12. A reading of M/s. Carona Sahus case judgment would also show that what is mentioned is that after section 13-A was so enacted, it would be applied to pending suits and proceedings because it is special law and the tenant can resort to it. 12. A reading of M/s. Carona Sahus case judgment would also show that what is mentioned is that after section 13-A was so enacted, it would be applied to pending suits and proceedings because it is special law and the tenant can resort to it. This judgment no where mentions that if the court has not determined the rent according to section 13 (4) and (5) then the tenant, can not take benefit, can be struck off afterwords without complying with Section 13-A, sub clause (5) simply because later on section 13-A came into force. Obviously if section 13 Clause (5) was not complied with then the tenant can very well use the non compliance with a protective umbrella against sinking of the defence on that court. 13. Mr. Garg is also justified in his submission that unless the mandatory statutory duty under sub clause (5) is discharged by the court, the defence can not be struck off on account of non payment for subsequent months. Even if it is assumed that it should be done then also I am of the opinion in the peculiar facts and circumstances of the case , delay of 3 days could have been and should have been condoned. 14. Mr. Lodhas contention that since appeal was not filed against the striking off of the defence, therefore, the order has become final, is also untenable. Obviously an appeal has been filed from the final judgment and Mr. Garg has pointed out that the appeal is directed against the order of striking of the payment for a particular month also. 15. Mr. Lodha points out that the grounds of the first appeal to court and the judgment are conspicuously silent over this. Mr. Garg pointed out from the grounds of appeal that, in the ground No. 10 he has mentioned that the trial court should have condoned, the delay of 3 days in the facts and circumstances of the case which was not done. 16. I am of the opinion that in the peculiar facts and circumstances of this case as mentioned above the basic infirmities pointed out vitiated the entire proceedings. 16. I am of the opinion that in the peculiar facts and circumstances of this case as mentioned above the basic infirmities pointed out vitiated the entire proceedings. I have also held repeatedly and so also it has been laid down by other High Courts that in matters of default in payment of rent, if the legislature has provided jurisdiction to extend time then the court should do it very liba-rally and should not deprive the tenant. 17. Consequently the 3 days delay should have been condoned. 18. Mr. Lodha has also pressed cross objection on the ground of bonafide and reasonable necessity. According to him a decree should have been given. Para 13 of the judgment of the First Appellate Court contains discussion about it. Reliance was also placed by Mr. Lodha on the judgment of the Supreme Court in Budhwanti V.Gulab Chand Prasad (5). 19. Mr. Garg has opposed the cross-objections. 20. In Budhwantis case it has been held that when the appellate court reversed the findings of baseless assumptions and wrong principles of law, the High Court is justified to revise the finding of the appellate Judge even though it was factual in character. If the finding is based on wrong tests or on the basis of conjectures and assumptions then High Court will be well within its rights in setting aside it in a second appeal, otherwise patently erroneous finding cannot be set aside, in second appeal. 21. In the instant case as mentioned above in para No. 13 the finding of the trial court rejecting the plea of bonafide and reasonable necessity has been confirmed by the first Appellate Court. I have also considered and examined the various tests applied by the First Appellate Court in para 13 and I am of the opinion that none of them is based on assumption or conjectures nor can be said to be such which requires interference in second appeal. 22. In view of the above it is not necessary to examine the correctness of the findings as the trial court found that Manager of a temple owned by the Diputy cannot rile suit for his personal bonaride- necessity is correct or not. I express no opinion about the same. 22. In view of the above it is not necessary to examine the correctness of the findings as the trial court found that Manager of a temple owned by the Diputy cannot rile suit for his personal bonaride- necessity is correct or not. I express no opinion about the same. Consequently the judgment of both the lower courts are confirmed so far as the rejection of the plea of bonafide and reasonable necessity is concerned and the cross objection is dismissed. 23. The decree of eviction is set aside. The case is remanded to the trial court for determination of the rent and interest and as discussed above and then provide time to the tenant to pay the same as per sub section (5) as it existed on that day on 4 4.75. After determination if the tenant complied with the order, the legal lay is consequence of dismissal of suit would follow the tenant fails to comply with the order then further proceedings would be taken according to law. The parties would bear their own costs of appeal and cross objection so far as this court is concerned.