JUDGMENT 1. - Having heard learned counsel for the appellant. 2. This second appeal is directed against the judgment and decree passed by Addl. District and Sessions Judge No. 2 Jodhpur in Civil appeals (defect) No. 47/93 and 48/93 on 27.7.93 by which the learned Addl. District Judge No.2 has reversed the judgment and decree passed by the Addl. Munsif and Judicial Magistrate on 13.12.84. Plaintiff-respondent filed a suit for eviction on the ground of default against appellant. 3. The appellant is tenant of shop on the ground floor as well as on the residential room over the same shop under separate tenancy agreement. Two separate suits were filed against appellant for eviction and arrears of rent inter alia on the ground that the suit premises-shop as well as residential room are required bona fide and reasonably by the landlord for his own use and occupation and that the defendant has failed to pay or tender rent for a period of 6 months before filing of the suit and has therefore become defaulter. Two suits were consolidated. Before the suit were consolidated, amount of rent payable under section 13(3) was determined separately. After consolidation of the suit, petitioner failed to pay or deposit the rent for the month of Sept. 80 and his defence against eviction under the Act of 1950 was struck out on 25.2.81. Aggrieved with the aforesaid order striking out the defence, the defendant preferred an appeal as provided under section 22 of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The appeal was dismissed on 29.1.82 and the order striking out of defence was affirmed. Thereafter by judgment dated 13.12.84 plaintiff's suit in respect of the residential room was decreed by the trial court by accepting the place of the plaintiff about his reasonably and bona fide requirement. However the suit regarding shop was dismissed by holding that though shop is required bona fide by the landlord but issue of comparative hardship was held in favour of the defendant. The trial court held that defendant is a defaulter but refused to pass a decree on the basis of default by holding that on deposit of amount of rent payable under section 13(4), the default stands condoned and subsequent default in making payment of rent for the subsequent period cannot be a ground for passing a decree under section 13(1)(4). The trial court held that defendant is a defaulter but refused to pass a decree on the basis of default by holding that on deposit of amount of rent payable under section 13(4), the default stands condoned and subsequent default in making payment of rent for the subsequent period cannot be a ground for passing a decree under section 13(1)(4). In the same suit unless such a plea is taken by amending the pleadings. 4. Aggrieved by the aforesaid judgment and decree both the parties appealed before the District Judge, Jodhpur. The Addl. District Judge No. 2 to whom the appeals were transferred, reversed the finding on the issue of personal bona fide requirement. However it came to the conclusion that since defence of the defendant against eviction has been struck off for non-compliance of provisions of section 13(5). The petitioner is not entitled to benefit under section 13(6) for avoiding decree of eviction on the ground of default. He, therefore, decreed both the suit. Hence this appeal. 5. Learned counsel for the appellant urged that striking out of defence by the trial court was contrary to law laid down by this court. He places reliance in M/s. Bagga Cycle Company v. Shri Guru Singh Sabha, 1991 RLR 560 . 6. Having carefully considered the contention I am of the view that this plea is not now open to the appellant to raise in the second appeal. The order striking out defence of the appellant against eviction was passed by the trial court on 25.2.81. It was open for the defendant either to have challenged that order in appeal against decree for eviction passed by him if decree for eviction was ultimately passed against him or if got it decided finally by preferring an appeal at that stage as provided under section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. He opted for the latter course. His appeal was dismissed on 29.1.82. Thus so far as the question of striking out defence was concerned it attained finality between the parties after exhausting the remedies provided under the Act,under the provisions of which the order was made. Such order is not liable to be reopened in second appeal as no second appeal is provided under the Act. His appeal was dismissed on 29.1.82. Thus so far as the question of striking out defence was concerned it attained finality between the parties after exhausting the remedies provided under the Act,under the provisions of which the order was made. Such order is not liable to be reopened in second appeal as no second appeal is provided under the Act. In my opinion Lower appellate court rightly reversed the judgment and decree of the trial court by holding that appellant is not entitled to protection under section 13(7) of the Act. The provision of sections 13(5) and 13(6) are independent and mutually exclusive. The benefit of deposit of amount determined under section 13(3) is available only on the conditions mentioned in sub-section 13(6) of the Act of 1950. Section 13(6) clearly postulates deposit or payment of rent was required by sub-section 4. Amount required by sub-section (4) to be paid or deposit are the amount determined u/sub-section (3) of section 13 and monthly rent subsequent period for which determination has been made under sub-section 3 within the period or by the date prescribed therein. For seeking protection the payment on both accounts must have been made up to the date of passing of decree when the question of giving protection of section 13(6) arises. The question of struking out defence for non payment or deposit of amount in accordance with sub-section (4) arises after such default is committed. The question of condonation of default also arises only at that stage. When the contingency of applicants of sub-section (5) arises the application of sub-section (6) is excluded unless such defaults condoned. Therefore trial court was not right in taking the view that on payment of amount determined under section 13(3) the default under section 13(1)(a) comes to an end and no decree can be passed on that ground. It may be noticed that Section 13(3) by itself confer no benefit. The protection against a decree for eviction flows from sub-section (6) which clearly postulates payment as required under section 13(4), which as discussed above includes both the amount as determined under section 13(3) as well a monthly rent as required by section 13(4). That is why notwithstanding deposit of amount, issue of default does not become redundant. It has to be decided before benefit under section 13(6) can be invoked. That is why notwithstanding deposit of amount, issue of default does not become redundant. It has to be decided before benefit under section 13(6) can be invoked. If there is no default, no question arises for availing benefit under section 13(6). In that event no decree can otherwise be passed and that finding is required even if defence is struck off under section 13(5), for passing a decree on that ground of default, though it may be noticed that while giving effect to proviso of section 13(5) finding of tenant being defaulter is not required, it is enough that suit is based on that ground but before giving benefit under section 13(6) finding about tenant being defaulter coupled with compliance with precondition of deposit or payment of amount under section 13(4) is essential. 7. Therefore once the defence against eviction is struck of under section 13(5), which inheres in it that defendant has not complied with the requirement of payment or deposit of amount under section 13(4), results in automatic exclusion of applicability of sub section (6). The irresistible conclusion' is that in such case mere deposit of amount under section 13(3) does not result in cessation of ground of default as effective ground to pass a decree for eviction. The lower appellate Court was, therefore, right in its conclusion that in the present case the appellant is not entitled to protection from eviction, if he is a defaulter. 8. The appellant further contended that before passing of decree on the ground of default there ought to have been a finding that the defendant has not tendered the rent. 9. This contention in my opinion is also not well founded. It is true that section 13(1) envisages that tenant's failure to 'pay or tender' amount of rent as a ground for eviction. It is also equally true that so far as non receipt of amount of rent is concerned, it is not disputed. So far as the question of tendering of rent is concerned it is a fact which is in personal knowledge of the defendant and where the non receipt of amount of rent by landlord is admitted, the burden to prove that such amount was tendered and not accepted lie on the tenant who please such facts to save himself from the consequence of being defaulter. The Trial Court framed issue no. The Trial Court framed issue no. 3 whether defendant has sent amount of rent in time and therefore he is not a defaulter. The burden was rightly placed on the defendant. As a result of striking out of defence against eviction under the provisions of Act, defendant could not prove the issue. The trial court has categorically held that the defendant as defaulter which finding has also been accepted by the lower appellate Court. That is a finding of fact, which is not vitiated to be reopened in second appeal. 10. Thus in my opinion this appeal raises no substantial question of law and therefore appeal cannot be entertained. Accordingly the same is dismissed. 11. The appellant prayed for time to vacate the suit premises. It has come on record that the defendant is in occupation of suit premises for about the decades. The plea of personal and bona fide necessity has failed. The appellant has failed on technical ground. I deem it just and proper to direct that decree for eviction shall not be executed against the appellant for a period of two years provided he pays or deposit rent/mesne profit in the trial court which are due up to date within a period of two months, and continue to pay the mesne profit henceforth at the rate at which rent was payable in respect of suit premises or before 15th day of succeeding month. He will also furnish an undertaking before the trial court within two months that he will surrender the fact possession of suit premises to the aerose holder on or before 31st October, 1995 and will not part with the possession of suit premises in any manner in favour of anyone except plaintiff-decree holder or his privys. 12. The parties will bear their own costs throughout.Appeal dismissed. *******