JUDGMENT 1. - This is a tenant's first appeal in a suit for eviction which has been decreed by the trial court. The tenant appellants and the landlord respondent shall be referred hereinafter as the tenant and the landlord respectively. 2. The landlord instituted a suit for ejectment against the tenant in respect of tenanted shop situated at Chokdi Ghat Darwaja Jaipur, on the ground of default in making payment of rent and also claimed arrears of rent alongwith damages. It was averred that the tenant was already declared first defaulter in an earlier suit which was disposed of on September 7, 1974 by the Munsif East Jaipur after giving the benefit to the tenant under section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short the Act)....... thereafter did not pay the rent from October 1, 1974 to December 31, 1976 and committed second default in payment of rent. It was also pleaded that the tenant had damaged the shop in question. Relief for passing the decree for ejectment, damages and arrears of rent was sought. The tenant in the written statement denied the allegations and pleaded that neither they committed first default nor second. They. did not wish to enter into dispute therefore they paid entire due rent and costs of the suit. In fact the rent was due on account of its non-acceptance by the landlord. In so far as the allegations of second default is concerned the tenant contended that the rent for the months October, November and December 1974 was paid to Shri Nihal Chand Sogani Advocate. Entries to that effect were made in the account books regularly maintained by the tenant in due course of business. Rent for the further period was deposited in the court under Section 19A of the Act and no default was committed by the tenant. 3. On the basis of the pleadings of the parties, the learned trial court framed as many as seven issues thus (1) Whether the defendants got protection under section 13(4) of the Rajasthan Premises Act, in the earlier suit ? (2) Whether the tenancy of the defendants was terminated..........by afflux of time therefore notice for terminating the tenancy was not required to be served ? (3) Whether the plaintiff served notice to the defendants on 12.7.76 and the tenancy was terminated ? (2) Whether the tenancy of the defendants was terminated..........by afflux of time therefore notice for terminating the tenancy was not required to be served ? (3) Whether the plaintiff served notice to the defendants on 12.7.76 and the tenancy was terminated ? (4) Whether the defendants paid or deposit the rent from 1.10.74 to 31.12.76 In time and did not commit default under section 13 ? (5) Whether the defendants had broken the plaster of the shop and caused damage to the tune of Rs. 4700/- to which the plaintiff is entitled to recover from the defendants ? (6) Whether the plaintiff is entitled to seek relief of eviction of the shop against the defendants ? (7) Relief. 4. The landlord Gulab Chand examined himself as PW 1 and closed his evidence whereas the tenant examined Phool Chand DW 1, Gulab Chand son of Kalu Ram DW 2, Abhay Kumar Chordiya DW 3, Chhuttan lal Shrimal DW 4, and Nihal Chand Sogani Advocate DW 5. Learned trial court decided issues No. 1, Z A 4, 6 and 7 In favour of the landlord and decreed the suit vide its decree and judgment dated October 23, 1981. Issues No. 3 and 5 were not pressed by the landlord. 5. I have pondered over the rival submissions and carefully weighed the material on record. I proceed to discuss the contentions issuewise.ISSUE NO. I 6. The learned trial court while deciding issue No. 1 in favour of the landlord observed that the tenant in the earlier suit got the benefit of section 13(4) of the Act. the learned counsel appearing for tenant canvassed that the finding of the lower court Is perverse and it cannot be held that the tenant got benefit of section 13(4) of the Act. It was contended that in the earlier suit summons was not served on the tenant Rajmal Bairathi and the order dated September 17, 1974 Ex. 1 was not binding on him as it was passed in his absence. It was further contended that In view of the provisions contained in section 13(4) of the Act the tenant could not have been 'declared first defaulter. 7. 1 was not binding on him as it was passed in his absence. It was further contended that In view of the provisions contained in section 13(4) of the Act the tenant could not have been 'declared first defaulter. 7. The learned counsel appearing on behalf of the landlord on the other hand urged that tenant Rajmal Bairathi and Phool Chand jointly submitted the written statements In which both of them admitted that they deposited arrears of rent and cost in the earlier suit. Rajmal Bairathi in the written statement did not raise objection that he was not served In the earlier suit therefore he is estopped from raising It now In the first appeal. 8. Undeningly the order dated September 17, 1974 Ex. 1 has not been set aside by any court as yet, it has attained finality and it can not be called in question In this appeal. Finding of the court in the earlier suit that the tenant got benefit under section 13(4) of the Act is final for the purposes of adjudication of this appeal and the tenant can not be permitted to reopen it. .In this view of the matter I do not find any merit in the submissions of learned counsel appearing for the tenant and I hold that issue No. 1 was rightly decided by the trial court.ISSUES 2, 3 AND 5 9. Issue No. 2 was decided by the learned trial court with the consent of the parties In favour of the plaintiff and issues No. 3 and 5 were not pressed. Therefore these issues do not require consideration.ISSUES 4,6 AND 7 10. Finding of these issues has been assailed by the tenant on the ground of inadequate averments made In the plaint by the landlord. Inviting my attention towards para 2 and 6 of the plaint it was contended that ground of default in making payment of rent was not pleaded in accordance with section 13(1)(a) of the Act. It was incumbent upon the landlord to .......that the tenant neither paid nor tendered the amount of rent due for period of six months and in absence of complete pleading it could not be held that tenant committed default. Reliance was placed on Rameshwar Prasad Pareek v. Ramchandra Pareek and others (S.B. Civil Revision Petition No. 530/1994 decided on November 5, 1996). 11. Reliance was placed on Rameshwar Prasad Pareek v. Ramchandra Pareek and others (S.B. Civil Revision Petition No. 530/1994 decided on November 5, 1996). 11. On the other hand learned counsel appearing for the landlord supported the finding of the trial court and placed reliance on Shyam Sunder v. Moda Ram (1981 RLW 178) , Vinod Kumar v. Surjit Kaur ( AIR 1987 SC 2179 ) and Abubakar Abdul Inamdar (dead) by LRs. and others v. Harun Abdul Inamdar and others (JT 1995(7) SC 179). It was canvassed that the landlord in paras 2 and 6 of the plaint incorporated the ingredients of section 13(1)(a) of the Act and the pleading has to be construed in its essence substance and spirit. It is not essential to use the phraseology of the section. The second default committed by the tenant stood proved and issues 4, 6 and 7 were rightly decided by the learned trial court. 12. I have given my anxious consideration to the rival submissions and carefully scanned the material on record. 13. Before proceeding further it will be apposite to take stock of section 13(1) (a) of the Act, which provides thus-"Section 13.-(1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied (a) that the tenant has neither paid nor tendered the amount of rent due from him for six months." (Underlining is mine) 14. According to clause (a) of sub-section (1) of Section 13 of the Act following two conditions are necessary to be proved (i) that the amount of rent is due for six months, and (ii) that the tenant has not paid this due rent or the tenant did not tender the rent due to the landlord. According to clause (a) of sub-section (1) of Section 13 of the Act following two conditions are necessary to be proved (i) that the amount of rent is due for six months, and (ii) that the tenant has not paid this due rent or the tenant did not tender the rent due to the landlord. In other words, the tenant shall be liable for eviction if he commits default in payment of rent or in tendering the rent due from him for six months.Evidently, word 'default' has not been incorporated in clause (a) of sub-section 13 of the Act.The Concise Oxford dictionary of Current English language defines the term `default' thus "want, absence, failure to act, neglect, failure to pay." To pay rent is the primary duty of the tenant. The default in payment of tendering of rent has been considered as avalid ground for seeking eviction of such defaulting tenants. Therefore, it warns the tenants to make payments or tender the amount of rent regularly to their landlords in order to save themselves from eviction on this ground. If the landord has refused to accept rent tendered by the tenant he may send the same by Money order and if Money order is again refused, the rent may be deposited under Section 19A the Act in the Court. The tenant is entitled to resort section 19A of the Act in order to avoid default and eviction. The whole of the section 19A was inserted by Section 4 of the Rajasthan Premises (Control of Rent and Eviction) Amendment Act, 1965 (Rajasthan Act No. 12 of 1965) published In the Rajasthan Gazette, Extraordinary, Part IV A, Dated 9.6.1965. In Jagdish Kumar v. Roopchand (1970 RLW 315) background of aforesaid amendment was expressed by Justice Jagat Narain, as he then was, thus "there was a decision of this court that, if tenant sends rent by money order to the landlord and the latter refused to accept it than the tenant need not send the rent again to him either by money order or tender it to him personally. It was to nullify the effect of that ruling that section 19A was introduced in the Act." Thus in my considered opinion the landlord in a suit for eviction must contain specific- averment not only as to non-payment of rent by the tenant but it must contain also that the tenant failed to tender rent for a period of six months. This is necessary in view of provision contained in section 19A of the Act. 15. The sole object of pleadings is to give fair notice to contesting parties with respect to the case. They are required to meet and to call out points on which parties disagree or differ. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular causes must take. Order 6 Rule 2 CPC lays down affirmatively, that a pleading shall contain, and contain only material facts on which the party pleading relies; and negatively that it shall not contain facts which are only evidence by which such material facts to be proved. The rules of pleadings are also meant to help the court in narrowing controversies. The facts are of two kinds, 'facta probanda' and 'facta probantia'. Facts on which the party pleadings relies for his claim or defence are called 'facta probanda' and the facts by means of which they are to be proved are called 'facta probantia'. The former are material facts and the latter evidence to prove the former. The words 'material facts' mean all facts upon which the plaintiff's cause of action or the defendant's defence depends. In other words, all those facts which must be proved in order to establish the existence of the cause of action or defence. All facts which though not necessary to establish the cause of action or defence, the party pleading them is entitled to prove at the trial are also material facts. The provisions contained in Rules 2 and 4 of Order 6 CPC are mandatory. The statement of material facts must appear in the pleadings and the particulars must be full so as to enable the opposite party to know the case he is required to meet. The provisions contained in Rules 2 and 4 of Order 6 CPC are mandatory. The statement of material facts must appear in the pleadings and the particulars must be full so as to enable the opposite party to know the case he is required to meet. The absence of material facts and particulars would mean that the plea has not been raised at all. 16. Rule 4 of Order 6 CPC mandates that all particulars in respect of wilful default shall have to be stated in the pleading. Order 6 Rule 4 reads thus "R. 4 Particulars to be given where necessary-In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with dates and items if necessary shall be stated in the pleading. (Underlining is mine) 17. As suit of the landlord is based on wilful default, it must contain specific averment not only as to non-payment of rent by the tenant but it must contain also that the tenant failed to tender rent for a period of six months. In order to see as to whether the landlord has given all particulars of 'wilful default', a look at para 2 and 6 of the plaint is necessary, which reads as under HINDI MATTER 496703 18. A bare perusal of aforesaid pleading goes to show that the landlord only averred non-payment of rent by the tenant but it does not contain that the tenant failed to tender rent. Counsel for the landlord urged that the word 'default' used in para 6, includes `non-payment' as well as "non-tendering of rent'. In support of this contention case of Shyam Sunder v. Modi Ram (RLW 1981 page 178) was cited. In para 8 of the said case it was indicated thus "The objection was to the effect that the suit for eviction was decreed by the court without satisfying the existence of ground of eviction, so the decree is nullity. As objection to this effect was not raised that there was want of pleading on the part of the plaintiff satisfying the requirements of clause (a) of sub-section (1) of section 13 of the Act. Thus on this 'aground alone the contention raised by Shri Nagori deserves to be rejected. As objection to this effect was not raised that there was want of pleading on the part of the plaintiff satisfying the requirements of clause (a) of sub-section (1) of section 13 of the Act. Thus on this 'aground alone the contention raised by Shri Nagori deserves to be rejected. Even if the contention is examined on merits, I do not find any substance in it. It is true that in para 4(kh) the ground is not stated in the very words as found mentioned in clause (a) of sub-section (1) of section 13, but it is not essential to use the same phraseology. It may be stated that the pleading has to be construed in its essence substance and spirit. In para 4(kh) the plaintiff clearly averred that the defendant has allowed the rent of seven months to fall in arrears, so he is a defaulter (Pratiwadi ne Arsa Sat Kiraya bhi chada liya hai, isliye wah defaulter bhi hai)." 19. Their Lordships of the Supreme Court in Hasmat Rai v. Raghunath Prasad ( 1981(3) SCC 103 ) had occasion to examine law of pleadings and it was propounded thus- (para 10) "In order to avail of the benefit conferred by section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under section 12(1)(f). He must, therefore, establish (1) that he requires bonafide possession of a building let for non- residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirement of section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings requires that such facts have to be alleged and must be put in issue. The burden to establish both the requirement of section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings requires that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under section 12(1)(f) the court after satisfying itself that there are proper pleadings must frame two issues namely (i) whether the plaintiff landlord proves that he bonafide requires possession of a building let to the tenant for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well established proposition that any amount of proof offered without pleadings is generally of no relevance." (Underlining is mine) 20. In Shyam Sunder v. Moda Ram (supra) this court while dealing in second appeal observed that it is not essential to use the phraseology of section 13(1)(a) of the Act and the pleading has to be construed in its essence substance and spirit. A complete reading of the judgment reveals that provisions contained in Order 6 Rule 4 CPC escaped notice of this court according to which it is mandatory to plead all necessary particulars relating to wilful default in the pleading. According to Order 6 Rule 4 CPC the plaint must contain averments indicating with reasonable definiteness what the nature of default is. The word 'material' means the facts necessary to form a complete cause of action. As already stated the provisions contained in Rules 2 and 4 of Order 6 CPC are mandatory and the statement of material facts must appear in the pleadings and the particulars must be full so as to enable the opposite party to know the case he is required to meet. The absence of material facts and particulars would mean that the plea has not been raised at all. The Division Bench of M.P. High Court consisting of Hon'ble A.P. Sen and S.S. Sharma JJ. in Durga Prasad v. Parveen ( AIR 1975 MP 196 ) held that non-mention of material facts amounts to no pleading and therefore no cause of action arises. The Division Bench of M.P. High Court consisting of Hon'ble A.P. Sen and S.S. Sharma JJ. in Durga Prasad v. Parveen ( AIR 1975 MP 196 ) held that non-mention of material facts amounts to no pleading and therefore no cause of action arises. In was held in para 46 thus "Where the plaintiff wants to bring a suit for damages against the State on the basis of Contract, Order 6 Rule 2 Civil PC. requires the plaintiff to state the material facts. The non-mention of these facts amounts to no pleading and therefore, no cause of action arises." The fact that the tenant did not tender the rent either, is a material fact and non-mention of this material fact in the plaint is fatal. It is not a mere phraseology of section 13(1)(a) of the Act, but it is a material fact. In the instant case the landlord in para 6 of the plaint made averments that the tenant committed second default in making payment of rent. This para does not say that the tenant committed default in tendering of rent. It does not say that the default in payment of rent for continuous six months was committed. In Rishab Chand v. Veer Chand Jain ( 1989(1) RLR 567 ) the Division Bench of this Court indicated that non-payment or default is to be for six months and it must be pleaded and proved to be continuous. 21. Their Lordships of the Supreme Court in Vinod Kumar Arora v. Surjit Kaur ( AIR 1987 SC 2179 ) observed that the pleading of the party form the foundation of his case. In the case on hand as discussed hereinabove, the foundation of landlord's case is based on cryptic averments. The landlord failed to mention the material fact that the tenant did not tender the rent either, and non-mentioning of material fact amounts to no pleading and therefore no cause of action arises as is rightly held by the Division Bench of the Madhya Pradesh High Court in Durga Prasad v. Parveen (supra). The learned trial court wrongly decided issues 4, 6 and 7 in favour of the land lord. The finding of the learned trial court is perverse and deserves to be set aside. I hold accordingly and decide issues 4, 6 and 7 in favour of the tenant. 22. The learned trial court wrongly decided issues 4, 6 and 7 in favour of the land lord. The finding of the learned trial court is perverse and deserves to be set aside. I hold accordingly and decide issues 4, 6 and 7 in favour of the tenant. 22. Resultantly, the appeal is allowed and the impugned decree and judgment of the trial court stand set aside. Costs easy.Appeal Allowed - Eviction Set Aside. *******