JUDGMENT 1. - This Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge No. 1, Udaipur dated 26th November, 1987. 2. The plaintiff filed a suit against the defendant for eviction from the premises on account of second default in payment of rent. The suit was contested by the defendant and it was alleged that plaintiff cannot get any benefit of his earlier suit and, therefore, he shall not be entitled to any decree on account of second default. The suit was decreed by the trial Court, and aggrieved against this, the defendant preferred an appeal and appeal was also dismissed by the appellate Court. Hence, the present second appeal. 3. Mr. Mehta, learned counsel for the appellant has submitted that finding given by both the Courts below is not correct as the defendant has not committed the second default. Learned counsel has submitted that it is true that earlier suit No. 37/77 was filed and in that arrears of rent for a period from 1.5.1972 to 31.5.1974 was deposited on the first date of hearing under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, (hereinafter referred to 'Act'). Subsequently, a default was committed by not paying the rent month by month and a decree of eviction was passed in favour of the plaintiff, thereafter, an appeal was preferred by the defendant and that decree was affirmed. But, a review petition was filed before the appellate Court and it was pointed out that the defendant had paid the rent month by month and there was no default in payment of rent. The appellate Court accepted the review application and set aside the order of the appellate Court as well as of the trial Court and the suit was dismissed. Thus, learned counsel submits that there was no default on the part of the defendant. However, in second 1.11.1983 i.e. for 39 months. The learned counsel submits that this was one default for a period of 39 months and appellate Court has treated it to be 6 defaults at the interval of every 6 months is not correct. 4. Mr. Thus, learned counsel submits that there was no default on the part of the defendant. However, in second 1.11.1983 i.e. for 39 months. The learned counsel submits that this was one default for a period of 39 months and appellate Court has treated it to be 6 defaults at the interval of every 6 months is not correct. 4. Mr. Dave, learned counsel for the respondent has submitted that in suit No. 37/77 there was arrear of rent from 1.5.1972 to 31.5.1974 but the plaintiff took the benefit of depositing the amount of first date of hearing, even if it is accepted that the earlier suit was dismissed but fact remains that the defendant has already been taken a benefit in earlier suit by depositing the rent on the first day, thereby saving from the penalty of striking out his defence. Learned counsel submits that he cannot avail a second benefit also. In this connection, learned counsel has invited my attention to proviso to sub-section 6 of Section 13 of the Act. Learned counsel has also invited my attention to the cases Sobhraj v. Banwarilal, (R.L.W. 1974 P. 251), Bhikam Chand v. Jugal Kishore, (R.L.W. 1979 P. 137) and Shyam Lal and another v. Upbhokta Sahakari Samiti Jodhpur, (AIR 1983 Rajasthan P. 133). 5. Thus, the learned counsel has submitted that in view of the observations made in the aforesaid authorities that if a tenant has taken a benefit under Section 13(4) and he again commits default then by virtue of proviso to sub-section 6 of Section 13 of the Act he is not entitled to second benefit and a decree of eviction can be granted on account of second default. 6. I have heard both the learned counsel and I have perused the record. 7. Proviso to sub-section 6 of Section 13 provides that a tenant shall not be entitled to any relief if he has obtained any benefit under this sub-section, or under Section 13-A in respect of such accommodation if he again makes a default in payment of rent of that accommodation for 6 months. 8. Sub-section 6 of Section 13 reads as under:- "If a tenant makes deposit or payment as required by sub-section (4), no decree for eviction on ground specified in clause (a) of sub-section (1) shall be passed by the Court against him. 8. Sub-section 6 of Section 13 reads as under:- "If a tenant makes deposit or payment as required by sub-section (4), no decree for eviction on ground specified in clause (a) of sub-section (1) shall be passed by the Court against him. Provided that a tenant shall not be entitled to any relief under this sub-section if having obtained such benefit or benefits under Section 13-A in respect of any such accommodation he again makes a default in the payment of rent of that accommodation for six months." 9. Sub-section 6 clearly lays down that if a tenant deposits rent under sub-section (4) of Section 13 no decree for eviction on the ground specified in clause (a) of sub-section (4) of Section 13 shall be passed by the Court that means that since the amount was determined by the Court under Section 13(3) and the tenant deposits the amount on the first day of hearing or on the time so fixed by the Court then decree on account of non-payment of the rent for a period of 6 months shall not be passed. 10. Proviso further provides that the tenant shall not be entitled to any relief under this sub-section if he having obtained such benefit or benefits under Section 13-A in respect of such accommodation again makes default in payment of rent of that accommodation for 6 months. That means that under the proviso to sub-section 6 of Section 13 the defaulter is not entitled to get the benefit of Section 13(4) every time. The benefit has been confined to once only and the licence has not been given to the tenant to continue non-payment of rent and pay it when the suit is filed by making an application for depositing the rent in the Court on the first date of hearing. Such repeated benefits are not permissible under the proviso to sub-section 6 of Section 13 of the Act. Therefore, proviso has specifically provided that such benefit is only available to the incumbent once and once only. 11. Mr. Mehta, learned counsel submits that this proviso is only confined to deposits under made Section 13-A and not for the defaults committed by the incumbent in any other case. The contention of Mr. Therefore, proviso has specifically provided that such benefit is only available to the incumbent once and once only. 11. Mr. Mehta, learned counsel submits that this proviso is only confined to deposits under made Section 13-A and not for the defaults committed by the incumbent in any other case. The contention of Mr. Mehta cannot be accepted, the proviso very clearly lays down that the tenant shall not be entitled to any relief in this sub-section, if having obtained such benefit or benefits under Section 13-A i.e. for both the contingencies if a benefit has been obtained by the defendant under Section 13(4) as well as under 13-A of the Act. Under both the situations if the incumbent has obtained the benefit then he will not be entitled to second benefit under this sub-section. 12. Now, coming to the facts of the present case it is clear that in the earlier suit No. 37/77 there was arrears of rent from 1.5.1972 to 30.5.1974. On the first day of hearing, the defendant made an application for depositing rent for the aforesaid period. The rent was deposited by the defendant for this period that clearly shows that there was a default in payment of rent by the plaintiff for a period from 1.5.1972 to 30.5.1974. 13. Mr. Mehta, learned counsel has invited my attention to decision of this Court in the Ramakant v. Ahsan Hussain, (S.B. Second Appeal No. 126 of 1983), decided on 28th November, 1983, for showing that the trial Court should have specifically asked regarding the waiver of the benefit availed under Section 13(4) of the Act. In my opinion, it is not necessary. Once the defendant deposits the amount of the arrears of rent under Section 13(4) that means that he tacitly accepts the default and there is no question of again asking the plaintiff whether he wants to waive this benefit or not. The moment he deposits the arrears of the rent under Section 13(4) that clearly shows that he consciously wants to avail the benefit and there is no question of further questioning to the defendant that whether he wanted to waive the benefit or not. 14. The moment he deposits the arrears of the rent under Section 13(4) that clearly shows that he consciously wants to avail the benefit and there is no question of further questioning to the defendant that whether he wanted to waive the benefit or not. 14. In this connection, I draw support from the view taken by this Court in the case of Sobhraj v. Bhanwarlal, (R.L.W. 1974 P. 251), wherein it was observed as under : "Another point urged by the learned counsel for the appellant is that proviso to Section 13(7) cannot apply in the present case in as much as it is not proved that the appellant has committed default previously. It is true that in the previous suit no enquiry was held into the allegation of default because the appellant had applied under Section 13-A of the Act within the time prescribed therein and consequently, the suit for ejectment was dismissed without holding any enquiry into the allegation made by the parties. The proviso however, makes it clear that a tenant shall not be entitled to any relief under this sub-section (sub-section (7) if having obtained such benefit under Section 13-A in respect of any such accommodation, he again makes a default in the payment of rent of that accommodation for six months. It is not the requirement of the Act that there must be a finding as to the previous default. What is required is that the tenant must have obtained the benefit under Section 13-A. That the appellant has admittedly done previously. As already held above he has again made a default in the payment of rent for more than six months and consequently he cannot save himself from ejectment by making deposit under Section 13(4)."Similarly, in the case of Bhikamchand v. Jugal Kishore, (RLW 1979 P. 317), Hon'ble Sh. S.K. Mal Lodha, J. has taken the same view and the expression 'such benefit' was interpreted by his lordships as under : "Such benefit used in proviso to Section 13(7) (old) or 13(6) of the Act refers to the benefit availed of by the tenant under Section 13(7) (old) or 13(6) of the Act. S.K. Mal Lodha, J. has taken the same view and the expression 'such benefit' was interpreted by his lordships as under : "Such benefit used in proviso to Section 13(7) (old) or 13(6) of the Act refers to the benefit availed of by the tenant under Section 13(7) (old) or 13(6) of the Act. The use of the word 'such' before the word 'benefit' has a significance and it (such) refers to the benefit availed of by the tenant as contemplated in Section 13(7)(old) or Section 13(6) of the Act." Similarly, in Shyamlal and another v. Upobhkta Sahakari Samiti, Jodhpur, (AIR 1983 Rajasthan P. 133), Hon'ble Mr. M.C. Jain, J. has also taken the similar view and held as under:- "The defendant wanted to avail the benefit of sub-section (4) of Section 13 is manifest from his conduct of depositing the rent together with interest thereon and it is further evident from the application submitted by him under Section 13(7) on 11.8.75. The defendant categorically stated in this application that the plaintiffs have filed the suit for eviction on the basis of default and this is first suit. The amounts of rent and interest have been deposited, so the defendant prayed that the plaintiffs' suit be dismissed with costs. If the defendant did not want to avail the benefit of sub-section (4) of Section 13, he would not have deposited the amount of rent and interest." Thus, in this view of the matter, I think that the plaintiff has committed a second default by not depositing the rent in time for the period from 1.11.80 to 1.11.83, though it was deposited on 14.2.84 for a period of 39 months when present suit was filed. Since the plaintiff has committed second default, therefore, the view taken by the appellate Court does not appear to be erroneous so as to warrant any interference by this Court. 15. In the result, I do not find any merit in this second appeal and same is dismissed. 16. Mr. Mehta has prayed 6 months time to hand over the vacant possession of the premises. Time prayed for is allowed. The appellant shall hand over the vacant possession of the premises to the plaintiff within a period of 6 months from today. He should also file an undertaking to this effect in the trial Court within one month from today. Mehta has prayed 6 months time to hand over the vacant possession of the premises. Time prayed for is allowed. The appellant shall hand over the vacant possession of the premises to the plaintiff within a period of 6 months from today. He should also file an undertaking to this effect in the trial Court within one month from today. He shall continue to pay the rent month by month. No order as to costs.Order accordingly. *******