JUDGMENT 1. - This is a second appeal filed by the appellants-defendants against the respondents-plaintiffs arising out of the judgment and decree dated 9-9-1982 passed by the learned Civil Judge, Barmer Camp Balotra, by which the judgment and decree dated 8-9-1980 passed by the Munsiff Magistrate, Siwana was affirmed and the suit of the plaintiffs-respondents for eviction and arrears of rent on ground of default as set out in Section 13(1)(a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as `the Act of 1950') was decreed. 2. The facts giving rise to this second appeal are as follows : 3. The plaintiffs-respondents filed a suit for eviction and arrears of rent against the defendants-appellants in the Court of Munsiff Magistrate, Balotra later on Siwana on 15-9-1978 stating that the suit property mentioned In para 3 of the plaint was taken by the appellant-defendant No. 1 on 10-3-1973 on rent of Rs. 9/- per month and later on, rent with effect from 10-1-1974 was Increased from Rs. 9/- p.m. to Rs. 20/- p.m. The appellants defendants have paid rent upto 9-12-1977 and, thereafter, they have committed default in payment of rent for seven months and, therefore, the plaintiffs respondents have sought eviction of the defendants appellants on this ground also. A notice was also served by the plaintiffs respondents and, thereafter, the suit was filed for eviction and arrears of rent in the lower Court.Note: Other grounds of eviction just as reasonable bona fide necessity etc. are not mentioned here as they are not relevant for the purpose of deciding this second appeal. 4. The suit of the plaintiff respondents was contested by the defendants appellants by filing a written statement on 11-1-1979 inter-alia admitting that tenancy of the plaintiff respondents and further, it was contended that since 10-1-1974 rent 0 Rs. 20/- p.m. was not agreed upon by them and furthermore, no default in payment of rent was committed by them, as stated by the plaintiffs respondents in their plaint. Hence, the suit be dismissed. 5. On the pleadings of the parties, the learned lower Court on 7-2-1980 framed the following issues. 20/- p.m. was not agreed upon by them and furthermore, no default in payment of rent was committed by them, as stated by the plaintiffs respondents in their plaint. Hence, the suit be dismissed. 5. On the pleadings of the parties, the learned lower Court on 7-2-1980 framed the following issues. 1& vk;k oknhx.k la;qDr fgUnq ifjokjh ds lnL; gS o drkZ ifjokj oknh l% 1 gSA oknh 2& vk;k izfroknhx.k la;qDr fgUnq ifjokj esa lnL; gSA oknh 3& vk;k vDVkscj 73 esa T;knk cjlkr gksus ls cjlkyh dks uqdlku gqvk o oknhx.k us [kjpk yxkdj mls Bhd o cM+h cukbZA oknh 4& vk;k fnukad 10&7&1974 ls :0 20@& ekgokj fdjk;k r; fd;k x;k o fnukad 9&2&1977 rd fdjk;k vnk gks pqdk gSA oknh 5& vk;k oknhx.k dk edku eqruktk dh futh o okLrfod vko';drk gS o lqfo/kk dk larqyu Hkh dCtk fnyk;sa tkus esa oknhx.k ds i{k esa gSA oknh 6& vk;k izfroknhx.k us fnukad 9&12&1977 ds ckn dk fdjk;k ckdh gksus ls izfroknhx.k MhQkYVj gks pqds gSA 7& vk;k izfroknhx.k us twu twykbZ vxLr flrEcj 1978 dk o fnukad 2&1&1979 dks :0 23@& fdjk;k ds vnk fd;sA izfroknh 8& vk;k izfroknhx.k futh gjtkuk ikus ds vf/kdkjh gS vxj gS rks fdl dnjA izfroknhA Note:- For the purpose of this second appeal, issues No. 6 and 7 are only relevant. 6. During the proceedings at trial Court, on 13-7-1979, provisional rent under Section 13(3) of the Act of 1950 was determined by the lower Court as under: From 1-7-1979 to 31-7-1979 Rent . Rs. 9/- p.m. Interest Total = Rs. 63/- = Rs. 1/- = Rs. 64/- and the defendants-appellants were to pay the said amount upto 15-8-1979. 7. On 27-8-1979, an application was filed on behalf of the defendants appellants in the lower Court, whereby extension of time for depositing the provisional rent as determined by the lower Court on 13-7-1979 was sought. This application was decided by the lower Court vide order dated 13-12-1979 and it was held by the lower Court that since no application was presented for extension of time prior to 15-8-1979 and the said application dated 27-8-1979 has been filed after the expiry of the period, the same was rejected and furthermore, by the same order, the defence of the appellants defendants against eviction was also struck out by the lower Court. 8. 8. After recording of the evidence of the plaintiffs respondents and the defendants appellant, the learned lower Court decided the issues. The lower Court decided issues No. 6 and 7 pertaining to default in favour of the plaintiffs respondents and against the appellants defendants and it was held that the defendants appellants have committed default in making payment of rent for more than six months and thus, they were liable to be evicted on ground of default, as per S. 13(1)(a) of the Act of 1950 and consequently, the suit of the plaintiffs respondents for eviction on ground of default was decreed. Against the judgment and decree dated 8-9-1980 passed by the Munsiff Magistrate, Siwana, the appellants defendants preferred first appeal and the same was dismissed by the learned Civil Judge, Barmer Camp Balotra vide his judgment and decree dated 9-9-1982. Against the judgment and decree dated 9-9-1982 of the learned Civil Judge, Barmer Camp Balotra, the appellants defendants have preferred this second appeal. 9. In this second appeal, this Court on 6-12-1982 framed the following two substantial questions of law to be decided in this second appeal:- "1. Whether the trial Court erred in law in rejecting the defendants' application for extension of time for the deposit of arrears of rent and Interest and consequently further erred in law in striking out the defence of the defendants against eviction. 2. Whether decree for eviction automatically follows as a result of striking out of the decree." 10. The main contentions of the learned counsel for the appellants-defendants in this second appeal are as follows:- (1) The application dated 27-8-1979 filed on behalf of the defendants appellants for extension of time for depositing the rent as determined by the lower Court on 13-7-1979, was wrongly rejected by the lower Court vide order dated 13-12-1979 and that order was wrongly affirmed by the first Appellate Court, as the time as sought for by the defendants appellants should been extended as per the provisions of S. 13(4) of the Act of 1950. Hence, both the Courts below have committed illegality in not extending the time for payment of rent and in holding that once the initial time has expired, the Courts have no jurisdiction to extend the time. Hence, both the Courts below have committed illegality in not extending the time for payment of rent and in holding that once the initial time has expired, the Courts have no jurisdiction to extend the time. (2) The defence of the appellants defendants against eviction was wrongly struck out by the lower Court by applying wrong principles of law and thus, the decree of eviction passed by both the Courts below are not sustainable. 11. On the other hand, the learned counsel for the plaintiffs respondents has urged that the judgment and decree passed by both the Courts below are in accordance with law and since the defendants appellants have not preferred appeal under S. 22 of the Act of 1950 against the order dated 13-12-1979 by which the defence of the defendants-appellants was struck out by the Court below, that order has become final. This order has become final from another point of view also i.e. in memorandum of first appeal, that order dated 13-12-1979 has not been challenged and, therefore, in second appeal, this order now cannot be challenged. 12. I have heard both the learned counsel. 13. There is no dispute on the point in this case that the defendants-appellants have not preferred any appeal under S. 22 of the Act of 1950 against the order dated 13-12-1979 striking out the defence of the appellants defendants against eviction. There is also no dispute on the point that in the memorandum of first appeal, there is no specific mention of this point, but in para 5 of the judgment of the first Appellate Court, it has been mentioned by the learned Civil Judge that the second argument of the learned counsel for the appellant is that the order dated 13-12-1979 striking out the defence of the appellants defendants against eviction was wrong and this plea was not accepted by the first Appellate Court holding that defendants appellants have not deposited the rent within the time as ordered by the Court and not only this, they have not further deposited the rent month to month. 14. The position of law is that under Rule 2 of Order 41, CPC, the Court has a discretion to permit a new point, not raised in the memorandum of appeal, to be raised and argued at the time of hearing. 14. The position of law is that under Rule 2 of Order 41, CPC, the Court has a discretion to permit a new point, not raised in the memorandum of appeal, to be raised and argued at the time of hearing. The Appellate Court is not confined in deciding the appeal, to the points so raised or taken. It is entitled to base its decision on grounds neither set forth in the memorandum of appeal nor taken with the leave of the Court. 15. In the present case, though the argument that has been met out by the learned Civil Judge in para 5 of his judgment was not set forth in the memorandum of first appeal, but has been dealt with and this fully covers the argument that has been set forth now in the second appeal by the learned counsel for the appellants defendants. Therefore, it can easily be said that this argument in this second appeal can be considered and can be decided on merits and cannot be left out merely on this ground that it has not been raised in the memorandum of first appeal nor an appeal has been filed under S. 22 of the Act of 1950. 16. The learned counsel for the plaintiffs respondents has relied on a decision of this Court In Inder Chand v. Smt. Lilawati, 1990 (2) Rajasthan LR 196 , where it has been held that when no appeal or revision is filed against the order by which the defence of tenant was struck out, that order has become final. In my opinion, this ruling does not help the learned counsel for the plaintiffs respondents. In the present case, as stated earlier, though no appeal was filed under S. 22 of the Act of 1950 against the order dated 13-12-1979 striking out the defence of the appellants defendants against eviction, but this point was considered by the first appellate Court and, therefore, this order cannot be said to have become final. 17. Now, what is the scope of second appeal may be considered. 18. Sections 100 and 101 read together make it quite clear that - (1) a second appeal will lie only on the ground of an error in law or procedure and that (2) a second appeal will not lie merely on the ground of an error on a question of fact. 18. Sections 100 and 101 read together make it quite clear that - (1) a second appeal will lie only on the ground of an error in law or procedure and that (2) a second appeal will not lie merely on the ground of an error on a question of fact. Not only this, it is the decision of the lower Appellate Court that is to be referred to in the ground of second appeal, and not that of the original Court. 19. In the present case, the first substantial question, which was framed by this Court on 6-12-1982 states that whether the trial Court erred in law in rejecting the defendants' application for extension of time for the deposit of arrears of rent and interest and consequently, further erred in law in striking out the defence of the defendants against eviction. No doubt, in this substantial question of law, the word trial Court 'is used, but, as discussed above, the order passed by the trial Court was upheld by the lower Appellate Court vide its judgment dated 9-9-1982 and the same has been discussed in para 5 of the judgment of the learned civil Judge and, therefore, the word 'trial Court' here shall include 'appellate Court' also. In this background, now the first question is being examined by this Court. 20. What is the scope of S. 13(3), (4) & (5) of the Act of 1950 is to be seen now. 21. Sub-section (4) of S. 13 of the Act of 1950 prescribes the time limit for deposit or payment of the arrears of rent determined by the Court under S. 13(3) of the Act of 1950 i.e. - (i) Within 15 days of the date of determination of such amount, or (ii) Within further period, not exceeding three months, as extended by the Court. 22. This provision is very liberal and it imparts proper relief to a defaulting tenant. If the tenant is unable to pay such amount within 15 days of the order of such determination, he may file an application to extend the time on appropriate grounds. The power to extend time is discretionary and an appropriate case is to be made out for the satisfaction of the Court. If the tenant is unable to pay such amount within 15 days of the order of such determination, he may file an application to extend the time on appropriate grounds. The power to extend time is discretionary and an appropriate case is to be made out for the satisfaction of the Court. The Courts should be liberal in extending the time as per the intention of the Legislature, which extended the time limit from two months to three months looking at the hardship of the tenant. 23. In Prahlad Kumar v. Babu Lal, 1990 (2) Rajasthan LR 649 , this Court has held that the provision of striking out defence contained in S. 13(5) of the Act of 1950 is directory and not mandatory. 24. Similarly, in Madan Lal v. Smt. Rama Devi, 1986 Raj LW 541 , this Court has held that the Court has discretion in the matter of extension of time for depositing rent and that discretion should be exercised liberally. 25. In another case in Jagannath v. Jodha Ram, 1980 Raj LW 42 , this Court has held that Court should extend time for payment of rent to maximum under Act on slightest bona fide ground. 26. Thus, from S. 13(4) of the Act of 1950, the maximum statutory limit prescribed comes to three and half months (i.e. 15 days plus further period of three months), which is the statutory limit and it cannot be crossed by the Court, otherwise the order of the Court shall be without jurisdiction, but within limitation, the Court should take a liberal view and should extend the time. 27. Looking to this proposition of law, it appears that the application filed on behalf of the appellants defendants on 27-8-1979 seeking extension of time for depositing the rent, was wrongly rejected by the lower Court, as the application for extension of time was filed within the period of statutory limit. In the present case, the provisional rent was determined on 13-7-1979 and application for extension of time for depositing the rent was filed on 27-8-1979 and thus, the lower Court well as the first Appellate Court have vomited error in not accepting the application filed by the appellants defendants for extension of time or in other words, they should have extended the time so that the defendants appellants could deposit the amount. 28. 28. Looking to all the facts and circumstances of the case, both the Courts below should have exercised their discretion in extending the time for depositing the rent in favour of the appellants-defendants and thus, by rejecting the application of the appellants-defendants in arbitrary way, they have refused to exercise their discretion not in judicial manner but arbitrarily and thus, committed illegality in the exercise of their discretion. Hence, the first substantial question of law is decided as under:-That the trial Court (which includes first appellate Court) erred in law in rejecting the defendants' application for extension of time for the deposit of arrears of rent and interest and consequently, further erred in law in striking out the defence of the defendants against eviction. 29. The argument of the learned counsel for the plaintiffs respondents that atleast defendants appellants should have made payment of rent as determined by the lower Court month to month and in not doing so, they are still liable to be evicted on this ground. In my opinion, this argument is not tenable, in view of the fact that once the Courts below have wrongly rejected the application filed by the defendants appellants for extension of time and consequently, if month to month compliance has not been made, it would not affect. 30. So far as the second substantial question of law is concerned, it can easily be said that the decree for eviction does not automatically follow as a result of striking out of the defence against eviction and in the present case also, it has not followed automatically, as issues No. 6 and 7 were decided by the lower Court on the basis of the evidence produced by both the parties, though the order of striking out defence of the appellants-defendants was passed earlier. 31. Thus, both the substantial questions stand answered accordingly. The first substantial question of law has been decided in favour of the appellants defendants and in view of this, the second appeal of the appellants defendants should be allowed and the judgments and decrees passed by both the Courts below should be set aside and the case should now be remanded back to the lower Court to decide the application of the defendants appellants dated 27-8-1979 for extension of time, afresh in accordance with law and in the light of the observations made above. 32. 32. In the result, for the reasons stated above, this second appeal filed by the appellants defendants is allowed and the judgments and decrees of both the Courts below are set aside and the case is remanded back to the lower Court to decide the application of the defendants appellants for extension of time dated 27-8-1979 afresh, in accordance with law and in the light of the observations made above. 33. Parties are directed to bear their own costs through out.Appeal allowed. *******