JUDGMENT : 1. - Heard learned counsel for the parties. 2. The defendant-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment 1 and decree dated 28.2.2011 passed by the Additional District Judge No. 1, Ajmer in Civil Regular Appeal No. 50/2009 whereby the learned appellate Court while allowing the appeal filed by the plaintiff-respondent set aside and reversed the judgment and decree dated 12.8.2009 passed by the trial Court i.e. Additional Civil Judge (Junior Division) No. 1, Ajmer in Civil Suit No. 111/2008 and as, a consequence thereof decreed the suit for eviction filed by the plaintiff-respondent. 3. Brief relevant facts for the disposal of this appeal are that plaintiff-respondent filed a suit for eviction and for recovery of arrears of rent against the defendant appellant with the averment that the appellant has neither paid nor tender the rent for a period of 34 months i.e. from January, 1999 to October, 2001 and, therefore, she has committed default in payment of rent for a period of more than six months and is liable to be evicted from the tenanted premises under Clause (a) of sub-section (1) of Section 13 of the Rajasthan Premises (Rent and Eviction Control) Act, 1950 (hereinafter referred to as "the Act"). It was prayed that a decree for eviction from the tenanted premises and for recovery of arrears of rent may be passed in favour of the respondent and against the appellant. The appellant filed written statement and it was averred that the respondent receives rent at her own convenience as and when she comes to Ajmer and some times the appellant sends the rent by money order to her. It was further averred that rent amounting to Rs. 500/- for the period of January to May, 1999 was sent by money order on 7.6.1999, but the respondent refused to accept the money order and it was returned back. It was further submitted that thereafter the respondent did not come to obtain rent and, therefore, the alleged rent could not be paid. It was prayed by the appellant that she has committed no default in payment of rent and, therefore, she is not liable to be evicted from the tenanted premises. On the basis of pleadings of the parties necessary issues were framed. It was prayed by the appellant that she has committed no default in payment of rent and, therefore, she is not liable to be evicted from the tenanted premises. On the basis of pleadings of the parties necessary issues were framed. Vide order dated 4.7.2003 trial Court determined provisional rent under Section 13(3) of the Act and it was ordered that appellant would pay the arrears of rent within 15 days and shall also continue to pay monthly rent within 15 days of each succeeding month. It was also ordered that respondent may provide her Bank account to the appellant and if she fails to do so, the appellant would have liberty to deposit the rent in the court. On 21.7.2003, the appellant filed an application for extension of time to deposit the arrears of rent in compliance of order dated 4.7.2003. The learned trial Court after hearing both the parties allowed that application and vide order dated 26.7.2003 period upto 18.8.2003 was granted to the appellant to pay/deposit the arrears of rent. Evidence of both the parties was recorded. An application was filed by the respondent on 17.11.2008 with the averment that in compliance of order dated 4.7.2003 the appellant has failed to deposit the monthly rent during the pendency of suit and as a consequence of that her defence is liable to be struck out. Reply to the application was filed by the appellant on 26.3.2009. Learned trial Court after hearing both the parties vide judgment and decree dated 12.8.2009 dismissed the suit filed by the respondent. Under issue No. 1 it was held by the Court that it is prima facie proved that the appellant has paid arrears of rent as determined by the Court vide order dated 4.7.2003. So far as application dated 27.11.2008 is concerned, it was held that although the appellant has failed to show that she has paid monthly rent during the pendency of the suit within the prescribed period in compliance of order dated 4.7.2003 but as the evidence of both the parties has already been recorded and the application was filed at the fag end of the case, it would be of no use to strike out the defence of the appellant. It was directed that the appellant may pay the remaining rent to the respondent in accordance with law. It was directed that the appellant may pay the remaining rent to the respondent in accordance with law. As a consequence of the findings arrived at by the trial Court, the suit was dismissed. Feeling aggrieved, the plaintiff-respondent filed appeal under Section 96 of CPC and the same was allowed by the Appellate Court vide impugned judgment and decree dated 28.2.2011. It was found by the appellate Court that the appellant has failed to 1 show that in compliance of the order dated 4.7.2003 she deposited/paid monthly rent within the prescribed period during pendency of the suit. It was also found that from the postal receipt dated 18.2.2000 filed by the respondent in the appeal at the most it can be said that rent from 1.7.2005 to 28.2.2006 for a period of more than four years was paid at a time. It was held by the Appellate Court that as the appellant did not pay monthly rent within the prescribed period of 15 days, she is not entitled to get benefit of Section 13(6) of the Act and is liable to be evicted from the tenanted premises. On the basis of the findings arrived, at the Appellate Court set aside and reversed the decree passed by the trial Court and the suit was decreed. Dissatisfied with the judgment and decree of the first appellate Court, now tenant-appellant is before this Court by way of this Civil Second Appeal. 4. It was submitted by the learned counsel for the appellant that there was no finding of the trial Court that the appellant did not comply the order dated 4.7.2003 during pendency of the suit and she failed to pay/deposit the monthly rent within the prescribed period and, therefore, in absence of such finding the First Appellate Court was not entitled to arrive at a conclusion that the appellant failed to pay the monthly rent and she is not entitled to get benefit of Section 13(6) of the Act. It was further submitted that from the evidence available on record and more particularly from the rent receipt Ex-A, it is clear that the arrears of rent as determined by the trial Court were paid to the respondent within the period as extended by the trial Court vide order dated 26.7.2003 and it was obtained by the respondent without any protest and, therefore, the respondent waived her right to seek the defence of the appellant to be struck out and say that she is not entitled to obtain benefit of first default in payment of rent in accordance with sub section(6) of Section 13 of the Act. It was further submitted that the application under Section 13(5) of the Act to struck out the defence was filed by the respondent at the fag end of the proceedings on 17.11.2008 and before that evidence of both the parties has already been recorded and, therefore, the trial Court rightly refused to struck out defence of the appellant and allowed her to deposit the remaining rent in accordance with law, but the learned Appellate Court without considering the matter in a right perspective came to a wrong conclusion that as the monthly rent was not paid within the prescribed period the appellant is not entitled to get the benefit of first default. According to learned counsel for the appellant, the question of second default can arise only when after getting benefit of first default the tenant again commits default in payment of rent for a period of six months or more and fresh suit is filed by the landlord on that account but admittedly in the present case no second suit was filed by the respondent with the allegation that the appellant has not paid rent for a period of six months or more. In support of his submissions learned counsel for the appellant relied upon the following cases Shree Ram v. Hua Bai and others reported in AIR 1984 NOC 24 (Raj.), Hukam Chand v. Madan Lal reported in 1985 (2) WLN 60 , Bundu V. Smt. Hashmat , Kesho LaL v. Smt. Chander Bai, Ratanlal v. Ramlal reported in 1981 RLW 469, Chetan Das v. Annusuiya and Kewal v. Sesmal reported in 1981 RLW 77 5. On the other hand, by supporting the impugned judgment and decree, learned counsel for the landlord-respondent submitted that it is an admitted fact that in compliance of order dated 4.7.2003 the appellant failed to pay/deposit the month to month rent during the pendency of the suit within the prescribed period of 15 days and as the appellant failed to comply the provisions of Sections 13(4) of the Act, she was not entitled to get the benefit of even the first default in payment of rent in accordance with sub-section (6) of Section 13 of the Act but the learned trial Court even after finding that the appellant has not paid the monthly rent within the prescribed period did not consider the provisions of Section 13(6) of the Act at all and dismissed the application dated 17.11.2008 merely by stating that at the fag end of the proceedings it would not be proper to strike out the defence of the appellant. According to learned counsel for the respondent even if the trial Court found it proper not to strike out the defence even then it was the duty of the Court to consider whether consequent to non-compliance of Section 13(4) of the. Act, benefit of first default in payment of rent can be accorded to the appellant or not. It was further submitted that the learned trial Court also committed illegality in permitting the appellant to deposit/pay the remaining rent to the respondent in accordance with law as it is well settled that provisions of Section 5 of the Limitation Act are not applicable to Section 13(4) of the Act and the time for depositing/paying the monthly rent during the pendency of the suit cannot be extended beyond the prescribed period of 15 days or extended period. According to learned counsel for the respondent, it is an admitted fact that during the pendency of suit month to month rent was not paid within the prescribed period of 15 days, the trial Court was not entitled to permit the appellant to pay the remaining rent of that period to the respondent. It was further submitted that the learned appellate Court rightly held that looking to the admitted fact the appellant is not entitled to obtain benefit of Section 13 (6) of the Act and she is liable to be evicted from the tenanted premises. It was further submitted that the learned appellate Court rightly held that looking to the admitted fact the appellant is not entitled to obtain benefit of Section 13 (6) of the Act and she is liable to be evicted from the tenanted premises. It was also contended that merely because the appellate Court has held that the appellant has committed second default in payment of rent, it cannot be said that second suit for eviction on the ground of further default in payment of rent for a period of six months or more should have been filed by the respondent but it only means that as the appellant failed to comply the provisions of Section 13(4) of the Act, she is not entitled to obtain benefit of even first default in payment of rent. 6. In support of his submissions learned counsel for the respondent relied upon the cases of Nasiruddin & Ors. v. Sita Ram Agarwal reported in 2003(1) WLC (SC) Civil 293 : 2003 (1) DNJ (SC) 180, Devi Narayan Mathur v. Shital Prasad reported in 2006 (2) WLC (Raj.) 104, Om Prakash Saini v. Smt. Ganga Devi Mathur & Ors. reported in 2010 WLC (Raj.) UC 138 and Prakash Chand v. Firm Pohap Singh Kishan Sahai & Ors. reported in 2006 (2) DNJ (RAJ.) 1097 . 7. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law relied upon by the respective parties. 8. It is an admitted fact the suit for eviction was filed by the landlord-respondent on the ground that the appellant has committed default in payment of rent as she has neither paid nor tendered the rent for a period of 34 months before the institution of the suit. Although, the appellant tried to show that despite her best efforts to pay the rent in time to the respondent the same was not received by the respondent herself but ultimately It was admitted by her that rent as claimed by the respondent was due against her before the institution of the suit. Thus, it Is an admitted fact that before the institution of the suit rent for a period of more than six months was in arrear against the appellant. Thus, it Is an admitted fact that before the institution of the suit rent for a period of more than six months was in arrear against the appellant. It is also an admitted fact that vide order dated 4.7.2003 the trial, Court determined provisional rent under Section 13(3) of the Act and it was ordered that the arrears of rent so determined be paid within a period of 15 days and the month to month rent shall be paid within 15 days of the every succeeding month. It is also an admitted fact that the arrears of rent as determined vide order dated 4.7.2003 were not paid/deposited within the period of 15 days as directed by the trial Court and an application for extension of time was filed by the appellant and the same was allowed vide order dated 26.7.2003. According to the appellant the arrears of rent were paid to the respondent within the extended period. It is not in dispute in this appeal whether the arrears of rent were paid within the time prescribed or not. The only dispute between the parties is whether the benefit of Section 13(6) of the Act was liable to be granted to the appellant or not as she failed to pay/deposit the month to month rent during the pendency of suit within the prescribed period. From the material available on record and more particularly the admissions made by the appellant herself it is more than clear that the month to month rent was neither paid nor deposited within the prescribed period during pendency of the suit. Both the Courts below also have concurrently held the same and it being a finding of fact cannot be reconsidered in this appeal. It cannot be said that the finding is result of non-consideration of material evidence available on record. 9. Sub-section (4) of Section 13 of the Act provides that the tenant shall deposit in Court or pay to the landlord the amount determined by the Court under sub-section (3) within 15 day from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. 9. Sub-section (4) of Section 13 of the Act provides that the tenant shall deposit in Court or pay to the landlord the amount determined by the Court under sub-section (3) within 15 day from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. It also provides that the tenant shall also continue to deposit in Court or pay to the landlord, month by month, the monthly rent subsequent to the period up to which determination has been made, by the 15th of each succeeding month or within such further time, net exceeding 15 days, as may be extended by the Court,at the monthly rent as determined by the Court under sub-section (3). Thus, it is clear that the second part of this provision clearly provides that it is the obligation of the tenant to deposit or pay the month to month rent during pendency of the suit by the 15th of each succeeding month or within such further time not exceeding 15 days as may be extended by the Court. In the present case, it is clear that the appellant failed to comply the second part of this provision as she did not pay/deposit the month to month rent during pendency of the suit. 10. Sub-Section (6) of Section 13 of the Act provides that if a tenant makes deposit or payment as required by sub- section (4), no decree for eviction on the ground specified in Clause (a) of sub-section (1) shall be passed by the Court against him. It is well settled legal possession that benefit of first default in payment of rent in accordance with the provisions of sub-section (6) of Section 13 of the Act can be afforded to a tenant only when he complies the provisions of sub-section (4) but if he fails to comply the same even benefit of first default cannot be granted to him and he is liable to be evicted from the tenanted premises. In the present case as the appellant failed to pay/deposit month to month rent during pendency of the suit she was not entitled to get benefit of sub-section (6) of Section 13 of the Act and decree for eviction was liable to be passed against her but the trial Court did not consider the matter in the light of sub-section (6) and confined itself only to the question whether the defence of appellant is liable to be struck out or not. I am of the considered view that the question of defence struck out under sub-section (5) of Section 13 of the Act is an independent provision having no relation to sub-section (6) Section 13. Even if in a case no application is filed by the landlord to struck out the defence of the tenant or the Court refuses to struck out the defence even then the question in regard to grant of benefit of first default in payment of rent under sub- section (6) remains to be considered and if it it is found that the tenant has not complied the provisions of sub- section (4), the benefit has to be refused to him. In the present case, the trial Court also committed grave illegality and perversity in permitting the appellant to pay the remaining rent to the respondent in accordance with law as it is well settled that the provisions of Section 5 of the Limitation Act are not applicable to Section 13(4) of the Act and the period cannot be extended behind the prescribed period. On the other hand, the appellate Court considered the matter in a right perspective and came to a correct conclusion that as the appellant has failed to pay the month to month rent within prescribed period during pendency of suit she is not entitled to get benefit of Section 13(6) of the Act and decree for eviction is liable to be passed. Merely, because the learned Appellate Court held that the appellant has committed second default it does not mean that the Court was of the view that after getting benefit of first default the appellant has again made default for a period of six months or more. Merely, because the learned Appellate Court held that the appellant has committed second default it does not mean that the Court was of the view that after getting benefit of first default the appellant has again made default for a period of six months or more. In my view it only meant that as provisions of Section 13(4) of the Act has not been complied and the appellant has failed to pay month to month rent during the pendency of suit, she has committed default in payment of rent. In the facts and circumstances of the case, it cannot be said that the respondent has waived her right to contend that the appellant is not entitled to get benefit of first default in payment of rent as she received the arrears of rent within the extended period. The question here is not whether the respondent obtained the arrears of rent as determined vide order dated 4.7.2003, within the extended period but the question is whether she received month to month rent as accrued during pendency of the suit without any protest. It is not the case of appellant herself that rent accrued during the pendency of the suit was received by the respondent without any protest and therefore, it cannot be said that the respondent waived her right. There is clear finding of the trial Court also that month to month rent was not paid by the appellant and that is why she was permitted to pay the same to the respondent in accordance with law. 11. In the light of all this discussion, I am of the view that no illegality and perversity has been committed by the first appellate Court in reversing the Judgment and decree of the trial Court and I also find that this appeal involves no substantial question of law requiring further consideration of this Court. Consequently, the appeal being devoid of merits is, hereby, dismissed at the admission stage with costs throughout. The stay application also stands dismissed.Appeal Dismissed. *******