JUDGMENT 1. - This is a second appeal filed by the appellants-defendants against the judgment and decree dated 29-9-1983 passed by the learned Additional District Judge, Nagaur by which he dismissed the appeal of the appellants-defendants and upheld the judgment and decree dated 10-11-1982 passed by the learned Munsiff, Deedwana, by which the suit of the plaintiff-respondent for eviction of the defendants -appellants on ground of default as envisaged in S. 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950'), was decreed. 2. This second appeal arises in the following circumstances : The plaintiff-respondent filed a suit in the Court of Munsiff, Deedwana on 27-2-1980 under the provisions of the Act of 1950 stating that the defendants-appellants have taken houses mentioned in para 1 of the plaint on monthly rent of Rs. 20/- and a rent note was also executed by the defendants on 2-12-1972 in favour of the plaintiff-respondent. The defendants-appellants have committed default in payment of rent since 2-12-1972 and since they have committed default in payment of rent for more than six months, the plaintiff-respondent filed this suit seeking eviction of the defendants-appellants on ground of default as envisaged in S. 13(1)(a) of the Act of 1950. The plaintiff-respondent also claimed Rs. 1660/- as arrears of rent since 2-12-1972 up to the filing of the suit. The suit of the plaintiff-respondent was contested by the defendants-appellants by filing a written statement on 20-1-1981, in which they have admitted tenancy with the plaintiff-respondent, but they have denied that any rent is due. Further, it is stated that the amount of rent for the period from Jan., 1978 to April, 1978 was sent by Money Order and prior to Jan., 1978, no amount of rent of plaintiff-respondent was due against them and the rent has been paid up to December, 1977 and some goods worth Rs. Further, it is stated that the amount of rent for the period from Jan., 1978 to April, 1978 was sent by Money Order and prior to Jan., 1978, no amount of rent of plaintiff-respondent was due against them and the rent has been paid up to December, 1977 and some goods worth Rs. 584.35 were supplied by the defendants-appellants to the plaintiff-respondent and this amount should have also been adjusted against the payment of rent, but the same has not been done by the plaintiff-respondent and thus, they have not committed any default in payment of rent and the suit filed by the plaintiff-respondent be dismissed.The plaintiff-respondent filed a rejoinder on 7-3-1981.The learned Munsiff determined the provisional rent on 20-4-1981 in the following manner:- (1) Upto the date of filing of the suit (he did not determine time-barred rent) Rs. 720.00 (2) From the date of filing of the suit upto 2-4-1981 Rs. 280.00 (3) Interest @ 6% Rs. 66.60 Total Rs. 1066.60 The above determined amount to the tune of Rs. 1066.60 was paid by the defendants-appellants on 5-5-1981.Thereafter, the file went for framing of issues and denial of documents etc.On 23-7-1981, an application was moved by the counsel for the plaintiff-respondent under S. 13(5) of the Act of 1950 with the allegations that after the determination of rent on 20-4-1981 and after the payment of determined rent on 5-5-1981, the defendants-appellants have not paid the rent month to month as required by S. 13(4) of the Act of 1950 by the fifteenth of each month and thus, they have committed default in respect of three months. Hence, the defence of the defendants-appellants against eviction be struck off.The defendants-appellant submitted a reply to the application of the plaintiff-respondent dated 23-7-1981 on 21-10-1981 stating : 1. That since the suit was based only on the ground of default in payment of rent and after the payment of determined rent on 5-5-1981, the suit of eviction of defendants-appellants should have been ended. 2. That since the defendants-appellants have taken a plea that they have made the payment of arrears of rent by supplying goods worth Rs. 584.35, therefore, the point whether defendants-appellants have committed default or not should have been decided and thus, in absence of that, they are not required to deposit rent month to month. Hence, the application of the plaintiff-respondent dated 23-7-1981 be rejected. 584.35, therefore, the point whether defendants-appellants have committed default or not should have been decided and thus, in absence of that, they are not required to deposit rent month to month. Hence, the application of the plaintiff-respondent dated 23-7-1981 be rejected. The learned Munsiff vide order dated 12-7-1982 allowed the application of the plaintiff-respondent dated 23-7-1981 filed under S. 13(5) of the Act of 1950 and struck off the defence against eviction of the defendants-appellants holding that the defendants-appellants have not made the payment of rent month to month after determination of rent and thus committed default in payment of rent.Thereafter, on 12-7-1982, the day on which the application of the plaintiff-respondent dated 23-7-1981 under S. 13(5) of the Act of 1950 was allowed, the Court fixed the file for recording the evidence of the plaintiff-respondent. On 21-9-1982, P.W. 1, the power of attorney-holder of plaintiff-respondent was examined and the plaintiff-respondent closed his evidence on that day and the file was fixed for final arguments of the case.The learned Munsiff through his judgment and decree dated 10-11-1982 decreed the suit of the plaintiff-respondent for eviction of the defendants-appellants on the ground of default as envisaged under S. 13(1)(a) of the Act of 1950.Against the judgment and decree dated 10-11-1982 passed by the learned Munsiff, Deedwana, the defendants-appellants filed a first appeal in the Court of Additional District Judge, Nagaur and the Additional District Judge, Nagaur Camp at Deedwana through his judgment and decree dated 29-9-1983 rejected the appeal filed by the defendants-appellants and upheld the judgment and decree dated 10-11-1982 passed by the learned Munsiff.Against the judgment and decree dated 29-9-1983 passed by the learned Additional District Judge, Nagaur Camp at Deedwana, the defendants-appellants have filed this second appeal in this Court on 1-12-1983. 3. This Court on 24-8-1984 while admitting this second appeal, formulated the following substantial questions of law : "Whether in the facts and circumstances of this case, the learned Addl. District Judge was not right in maintaining the decree for ejectment on the ground of default passed by the Munsiff, Deedwana on November 10, 1982 when the suit was based only on the ground of default as envisaged by S. 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the defendant-appellant has deposited the amount determined under S. 13(3) of the aforesaid Act within the time allowed by the trial Court?" 4. The learned counsel for the appellants-defendants raised the following points during the course of his arguments : 1. That since the suit in the present case was based only on the ground of making default in payment of rent and as soon as the provisional rent was determined by the Court on 20-4-1981 and thereafter, provisional rent was deposited by the defendants-appellants within time on 5-5-1981, the suit itself came to an end and no further proceedings could have been continued and thus, the proceedings taken by the trial Court (Munsiff) were without jurisdiction and the defendants-appellants could not have been declared defaulter and thus, decree of eviction based on the ground of default is also without jurisdiction. 2. That the learned Munsiff further committed an error in striking out the defence of the appellants-defendants as they were not required to deposit the amount month by month, as per the provisions of S. 13(4) of the Act of 1950 as the suit itself stands disposed of after the payment of provisional rent. In support of the above contentions, the learned counsel for the appellants-defendants has relied on the decision of this Court in Yogendra Sharma v. Narain Das (1988) 1 Raj LR 286 (DB reference). 5. On the contrary, the learned counsel for the respondent-plaintiff has supported the judgments of both the Courts below. He has also relied on the same ruling on which reliance has been placed by the learned counsel for the appellants-defendants. 6. I have heard the learned counsel for the parties. 7. Before appreciating the contentions of the parties, it would be worthwhile to mention here briefly what the Courts below held in giving a decree of eviction on the ground of default in favour of the plaintiff-respondent. 8. The learned Munsiff in his judgment dated 10-11-1982 has held that it is an admitted case that the appellants-defendants have deposited Rs. 1066.60 (provisional rent determined by the Court) within time on 5-5-1981, but they have not complied with the second part of S. 13(4) of the Act of 1950, meaning thereby they have not deposited the rent month by month. 1066.60 (provisional rent determined by the Court) within time on 5-5-1981, but they have not complied with the second part of S. 13(4) of the Act of 1950, meaning thereby they have not deposited the rent month by month. Further, it has been held by the learned Munsiff that since the defence against eviction of the defendants-appellants has been struck off and there is no evidence on their behalf to rebut the case that they have not committed default in payment of rent, therefore, the point that they have committed default in making payment of rent stands proved and the decree of eviction against the appellants-defendants was passed accordingly on ground of default. 9. Before the first appellate Court i.e. Additional District Judge, Nagaur, the following points were raised : 1. That the learned Munssff has committed a mistake in deciding the case without framing an issue and, therefore, appeal should be remanded. 2. That no default has been committed by the appellants-defendants after determination of the provisional rent by the learned Munsiff. 3. That the order of the learned Munsiff dated 12-7-1982 by which defence against eviction of the defendants-appellants were struck off, was wrong. 4. That the statement of P.W. Bhanwarlal, who was the power of attorney holder of plaintiff-respondent was wrongly relied on by the learned Munsiff. 10. The learned Additional District Judge has dealt with the above points in the following manner: 1. That the learned counsel for the appellants-defendants has not much pleaded that point and apart from this, it was the case before the learned trial Court (Munsiff) that the defendants-appellants have committed default in payment of rent and thus, no question of remanding the appeal on the point that issue has not been framed, arises. 2. That the case of the defendants-appellants was that they have paid rent up to Jan., 1978, but this fact has not been proved by the defendants-appellants and thus, the case of the plaintiff-respondent that the defendants-appellants have committed default in payment of rent for more than six months, stands proved. 2. That the case of the defendants-appellants was that they have paid rent up to Jan., 1978, but this fact has not been proved by the defendants-appellants and thus, the case of the plaintiff-respondent that the defendants-appellants have committed default in payment of rent for more than six months, stands proved. Apart from this, defendants-appellants have not deposited the rent month to month and P.W. 1 has categorically stated that apart from the provisional rent which was deposited in the Court, the defendants-appellants have not deposited any other rent and thus, the findings of the learned Munsiff that appellants-defendants have committed default in payment of rent for more than six months are correct one and the same were upheld by the learned Additional District Judge. 3. That learned Addl. District Judge held that the order of the learned Munsiff dated 12-7-1982 by which defence against eviction of the defendants-appellants was struck off is correct one as the defendants-appellants have not complied with the second part of the provisions of S. 13(4) of the Act of 1950. 4. That on point No. 4 also, the case of the defendants-appellants was not accepted by the learned Addl. District Judge and thus, by judgment and decree dated 29-9-1983, the learned Addl. District Judge dismissed the appeal filed by the defendants-appellants. 11. In the light of the above findings recorded by the learned Additional District Judge, substantial question framed by this Court has to be examined.Gist of the ruling relied on by both the parties in Yogendra Sharma v. Narain Das (1988) 1 Raj LR 286 (DB Reference). 12. There can be two categories of suit for eviction when the sole ground for default is as contemplated under S. 13(1)(a) of the Act of 1950. The above ruling can be divided in two categories :First CategoryThe first category is when on the determination of the rent under S. 13(3) and upon payment or deposit of the same, there remains nothing to be done and the Court has to dispose of the suit finally at that stage and in such a case the suit will not remain pending and it will not be necessary for the tenant to continue to deposit rent month by month. Even in such cases if the suit remains pending only for the purpose of depositing the rent then the tenant has to deposit rent month by month.Second CategoryIn the second category of cases where though the sole ground for eviction is default in payment of rent but there are other matters in dispute between the parties, which do not come to an end upon determination and payment of rent under S. 13(3) of the Act and thus provisional determination of rent has to be decided finally at a later stage and in such a situation the suit has to continue even after the deposit of rent determined under S. 13(3) of the Act. In such suits, it is necessary for the tenant to continue to deposit rent month by month as provided by the second part of S. 13(4) of the Act, till the disposal of the suit. 13. The learned counsel for the appellants-defendants states that the case of the defendants-appellants is covered by the first category, while the learned counsel for the respondent-plaintiff says that the case of the plaintiff-respondent is governed by the second category. 14. If the case falls in second category, the Court has to decide the issue whether the tenant has committed default in payment of rent as contemplated by S. 13(1)(a) and pass necessary orders. Non-payment of rent determined under S. 13(3) or non-payment of rent month by month during the pendency of the suit or proceedings would not automatically make the tenant liable to be evicted. Not only this, if the case falls in second category, it can be said that where a tenant fails to comply with the provisions of S. 13(4) of the Act of 1950, his defence against eviction can be struck off.What are the consequences of striking out defence against eviction. 15. The order of striking out the defence against eviction is a penalty imposed on a defaulting tenant and it is a penalty under the special law and not under the general law. Even when defence is struck off, the defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff, a decree cannot be passed against him on the ground of committing default in payment of rent. Even when defence is struck off, the defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff, a decree cannot be passed against him on the ground of committing default in payment of rent. In other words, the tenant despite striking out his defence, is still entitled to urge at the final hearing of the suit that no decree of eviction can be passed on the basis of evidence on record. The striking off defence does not bar proceedings of a suit, but only bars the protection granted to the tenant under S. 13(1)(a) of the Act of 1950 which cannot be raised or proved in the further proceedings. Further, there can be no automatic eviction and the landlord has to prove his case. 16. In the light of the above observations, the facts of the present case are being examined. 17. From the file of the Court of Munsiff, it appears that the provisional rent was determined on 20-4-1981 and payment of provisional rent was made on 5-5-1981 by the defendants-appellants and, thereafter, the case did not come to an end, but proceeded further and on 5-5-1981 the Court fixed next date i.e. 21-5-1981 for framing issue and production of documents. On 23-7-1981, counsel for the plaintiff-respondent filed an application under S. 13(5) of the Act of 1950, which was allowed by the learned Munsiff on 12-7-1982 and defence against eviction of the defendants appellants was struck off, as the defendants appellants have not complied with the second part of the provisions of S. 13(4) of the Act of 1950. As stated earlier, in the reply filed on 21-10-1981 by the defendants-appellants to the application of the plaintiff-respondent under S. 13(5), the defendants-appellants have taken the plea that payment of Rs. 584.35 which was made by them to the plaintiff-respondent against the arrears of rent, should have been adjusted and in absence of it, they cannot be declared defaulter. 18. It means that even from the reply of the defendants-appellants to the application of the plaintiff-respondent under S. 13(5) of the Act of 1950, it appears that defendants-appellants were contesting the point that they are not defaulter and they have made the payment of rent. 19. 18. It means that even from the reply of the defendants-appellants to the application of the plaintiff-respondent under S. 13(5) of the Act of 1950, it appears that defendants-appellants were contesting the point that they are not defaulter and they have made the payment of rent. 19. In a case where landlord claims certain amount as arrears of rent and the tenant accepts it and deposits the same along with interest as determined under S. 13(3) and upon doing so, the Court has to simply dismiss the suit for eviction and matter ends and in such a case, the question of depositing rent month by month as contemplated by the second part of S. 13(4) normally does not arise. 20. As per the above ruling, the case would fall in second category when the matter does not come to an end after the deposit of determined rent, where there are certain points of dispute upon which the Court has to adjudicate upon and examination of such disputes may be in respect of arrears of rent etc. etc. and dispute in respect of mode of payment may also be there. In such a case, the suit would continue even after the determination of rent. The determination made under S. 13(3) of the Act of 1950 would be only provisional and the Court is required to decide the dispute finally. The suit does not become suit for arrears of rent alone but continues to be a suit for eviction. In order to seek protection of S. 13(6) of the Act of 1950, the tenant has to show that he has complied with both parts of S. 13(4) of the Act of 1950 in order to claim that no decree for eviction on ground of default can be passed against him. The suit continues to be a suit for eviction and arrears of rent till a final decision is reached and it cannot be said that upon deposit of rent determined under S. 13(3) of the Act of 1950, the suit for eviction comes to an end. 21. The suit continues to be a suit for eviction and arrears of rent till a final decision is reached and it cannot be said that upon deposit of rent determined under S. 13(3) of the Act of 1950, the suit for eviction comes to an end. 21. In my opinion, in the present case, since there was a dispute as to the mode of payment and suit remained pending even after the payment of provisional rent and even in the reply filed by the defendants-appellants to the application of the plaintiff-respondent under S. 13(5) of the Act of 1950, the defendants-appellants have substantially made their case that they have not committed default in payment of rent and they have made payment and that amount of Rs. 584.35 which was paid by them to the plaintiff-respondent should have also been adjusted against the arrears of rent etc., the proceedings of the lower Court would then be covered by the second category of the above ruling. 22. If the case falls in the second category of the above ruling, then, it was incumbent on the part of the defendants to comply with the second part of S. 13(4) of the Act of 1950 and the same has not been done in this case by the defendants-appellants and thus, their defence against eviction was rightly struck off by the learned Munsiff vide his order dated 12-7-1982 and the said order was rightly upheld by the learned Additional District Judge vide his judgment and decree dated 29-9-1983. 23. As stated earlier, even after striking off the defence of the defendants-appellants against eviction, plaintiff-respondent has to prove his case that the defendants-appellants have committed default in payment of rent for more than six months. In this respect, the learned Additional District Judge has clearly held that the defendants-appellants' case that they have paid rent up to Jan., 1978 has not been proved by them and thus, the case of the plaintiff-respondent that defendants-appellants have committed default in making payment of rent for more than six months, stands proved. 24. Since in this case no issue was framed by the learned Munsiff, the question arises whether non-framing of issue in the present case is fatal or not, though the learned Additional District Judge has rightly observed that non-framing of the issue in this case is not fatal. 25. 24. Since in this case no issue was framed by the learned Munsiff, the question arises whether non-framing of issue in the present case is fatal or not, though the learned Additional District Judge has rightly observed that non-framing of the issue in this case is not fatal. 25. The position of law is that mere omission to frame issues is not necessarily fatal to the trial of the suit. It is an irregularity which may or may not be a material one. If such omission has affected the disposal of the case on the merits, it will be a ground for remanding the case for a new trial. But, if, on the other hand, parties have not been prejudiced by the omission and substantial justice has been done in the case, notwithstanding the omission to frame issues, the decision will not be set aside or remanded for a new trial. 26. Therefore, the position of law is that mere omission to frame issues itself does not vitiate the trial and it may be regarded as an irregularity and this irregularity may be material one in some cases depending upon the facts and circumstances of each case. 27. In the present case, since the defence against eviction.of the defendants-appellants was struck off by the learned trial Court (Munsiff) vide order dated 12-7-1982 and the case was proceeding only to determine whether defendants-appellants have committed default or not and the parties were aware of this point and in such circumstances, if no issue on the point of default was framed by the learned Munsiff, this can be regarded a mere irregularity and, therefore, decision will not be set aside on this ground nor it can be said that it is a ground of remand of the case. Had there been defence of the defendants-appellants against eviction be not struck off and the case would have proceeded further without framing of issue, the position would have been different. Thus, it is held that non-framing of issue is not fatal in this case and, therefore, the argument of the learned counsel for the appellants-defendants that non-framing of issue in this case is fatal, is rejected. 28. In support of the above, following rulings can be seen : 1. Thus, it is held that non-framing of issue is not fatal in this case and, therefore, the argument of the learned counsel for the appellants-defendants that non-framing of issue in this case is fatal, is rejected. 28. In support of the above, following rulings can be seen : 1. Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35 where it has been held : "Civil P.C. (5 of 1908), O. 14, R. 1- Framing of issues - Fact decided without framing of issue - Parties aware of fact and adducing sufficient evidence - Non-framing of issue - Not fatal - Case need not be dismissed or remanded for fresh decision on point after framing of issues." 2. Kewal Krishan v. Dina Nath, AIR 1993 SC 881 , where it has been held : "(A) J. and K. Houses and Shops Rent Control Act (34 of 1966), S. 12 - Suit for eviction - Specific averment in plaint by landlord about default in payment of rent by tenant - No specific denial of averment - Payment of rent to landlord or authority not pleaded by tenant - Plea of denial of relationship of landlord and tenant failing on facts - Decree for eviction on ground of default - Cannot be set aside on ground that no specific issue was framed requiring proof of default." 29. In this case it can be said that after defence against eviction of the defendants-appellants was struck off, decree for eviction on ground of default was not passed by the learned trial Court (Munsiff) automatically, but was passed after recording the evidence and thus, from this point of view also, the learned Munsiff has not committed any illegality or irregularity in passing the decree of eviction against the defendants-appellants on ground of default and these findings were rightly upheld by the learned Additional District Judge and whatever irregularity had been committed is the non-framing of issue, which is held by this Court in the present case not fatal. 30. Now the last argument of the learned counsel for the appellants-defendants is that the learned Munsiff has wrongly relied on the statement of P.W. 1, who is power of attorney-holder of the plaintiff-respondent. In my opinion, this point should not be allowed to be agitated in second appeal, as law which was prevailing on that day is that such statement can be recorded. In my opinion, this point should not be allowed to be agitated in second appeal, as law which was prevailing on that day is that such statement can be recorded. Hence, this argument carries no weight so far as the present case is concerned. 31. For the aforesaid reasons, the substantial question framed by this Court in this second appeal on 24-8-1984 is decided in the following manner : That the learned Additional District Judge, Nagaur was right in maintaining the decree for ejectment on the ground of default as envisaged by S. 13(1)(a) of the Act of 1950 against appellants-defendants and deposit of the rent by the defendants-appellants under S. 13(3) of the Act of 1950 within time would not result in the stoppage of proceedings at once and the present case would fall in the second category of the above ruling." 32. In view of the above, the present second appeal filed by the appellants-defendants is liable to be dismissed.In the result, for the reasons stated above, the second appeal filed by the appellants-defendants is dismissed by affirming the judgment and decree dated 29-9-1983 passed by the learned Additional District Judge, Nagaur. Three months' time is granted to the appellants-defendants to vacate the suit premises. No order as to costs.Appeal dismissed. *******