JUDGMENT 1. (Oral) - The appellant-plaintiff (landlord) Narsingh Prasad S/o Chand Ram Maniyar has filed the present second appeal on 31.01.1998 against the defendant-tenant, Ram Prasad S/o Ram Narayan Khatik, in this Court under Section 100 of the Code of Civil Procedure, 1908, being aggrieved by the impugned judgment and decree dated 07.11.1997 of learned Additional District Judge, No.1, Bhilwara Camp-Shahpura in Civil Appeal No.6/94 (81/90)-Ram Prasad v. Narsingh Prasad reversing the judgment and eviction decree dated 20.09.1989 passed by learned Civil Judge, Shahpura in Civil Original Case No.102/84-Narsingh Prasad v. Ram Prasad decreeing the plaintiff's eviction suit in respect of suit shop, situated at Shahpura, District Bhilwara, which was initially let out to the defendant-tenant at monthly rent of Rs. 60/- per month. 2. Briefly stated, the facts of the case are that before filing the present eviction suit, the plaintiff earlier filed an eviction suit being Civil Suit No. 57/79-Narsingh Prasad v. Ram Prasad on the ground of default in payment of rent for the period May, 1976 to March, 1979, under Section 13 (1) (a) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950 (for brevity, hereinafter referred to as 'Act of 1950'), which suit came to be disposed of without any eviction decree on 05.02.1983 since the defendant-tenant upon determination of provisional rent u/s 13 (3) of the Act of 1950 as per time limit given u/s 13 (4) of the Act of 1950 deposited the said defaulted amount of rent for the period specified in the suit.However, upon second default having been committed by the defendant-tenant for the period 01.01.1984 to 31.07.1984 for seven months Rs. 60/-, the appellant-plaintiff-landlord, Narsingh Prasad filed the present suit being Civil Suit No.102/84-Narsingh Prasad v. Ram Prasad again u/s 13 (1) (a) of the Act of 1950. 3. The learned trial court after framing the relevant issues and taking the evidence of both the parties including the documents relating to earlier default and deposit of rent in pursuance of court's directions u/s 13 (4) of the Act of 1950, decreed the suit for eviction vide its judgment and decree dated 20.09.1989. 4. 3. The learned trial court after framing the relevant issues and taking the evidence of both the parties including the documents relating to earlier default and deposit of rent in pursuance of court's directions u/s 13 (4) of the Act of 1950, decreed the suit for eviction vide its judgment and decree dated 20.09.1989. 4. The defendant-tenant, Ram Prasad being aggrieved by the judgment and eviction decree of learned trial court, preferred first appeal before the learned Additional District Judge No.1, Bhilwara Camp-Shahpura, who allowed the defendant-tenant's appeal by the impugned judgment and decree dated 07.11.1997, inter-alia, holding that since for the previous default, the benefit under Section 13 (4)/13 (6) of the Act of 1950 was not specifically given to the defendant-tenant, as he deposited the rent as per directions of the court under Section 13 (3) of the Act, the present default for the period 01.01.1984 to 31.07.1984 could not be treated as second default resulting into eviction decree, as the benefit of Section 13 (6) of the Act for such first default, deserves to be now given to the defendant-tenant. 5. The learned lower appellate court of Additional District Judge No.1, Bhilwara in the impugned judgment dated 07.11.1997 also held that the learned trial court below in the present suit No.102/84 could not go beyond the terms of the previous judgment and decree of learned trial court dated 05.02.1983 into the evidence and record and the facts obtaining at the time of first suit; and since in the judgment and decree dated 05.02.1983 disposing of the first suit being Civil Suit No.57/79- Narsingh Prasad v. Ram Prasad , no such benefit u/s 13 (4)/13 (6) of the Act of 1950 was given in the present case for such default for subsequent period on 01.01.1984 to 31.07.1984, the tenant was entitled to such benefit under Section 13 (6) of the Act and thus the eviction decree of trial court came to be reversed by the first appellate court. 6. While admitting the present second appeal, a coordinate bench of this Court had framed the following substantial questions of law for consideration by this Court on 28.11.1998, which reads as under: 1. 6. While admitting the present second appeal, a coordinate bench of this Court had framed the following substantial questions of law for consideration by this Court on 28.11.1998, which reads as under: 1. Whether the first appellate court was right in holding the respondent to be first defaulter because there was no finding recorded by the trial court in its judgment though the tenant had been given benefit of first default by the trial court? 2. Whether the respondent having been declared as first defaulter in the previous suit was entitled to claim the benefit of Section 13 (4) of the Rajasthan Premises (Control of Rent & Eviction) Act because there was no finding regarding default in previous suit? 7. Mr. Manish Shishodia, learned counsel for the appellant-plaintiff- landlord urged that though the learned lower appellate court below in the impugned judgment and decree has referred to several judgments cited at the Bar, including the judgment of this Court in the case of Sobhraj v. Bhanwar Lal reported in 1974 RLW 251 , which is duly referred in para 10 of the impugned judgment, however, the learned lower appellate court below, without discussing the facts and law laid down by this Court in the case of Sobhraj (supra) blindly on his own opinion, held that the benefit of first default was not given to the tenant for the alleged default in payment of rent for the period May, 1976 to March, 1979 in the judgment and decree dated 05.02.1983 at the time of disposal of first suit No.57/79 and consequently, the second suit could not be decreed on the ground of second default in payment of rent by the tenant. He further submitted that this Court recently in the case of Ranchod Mal & Anr. v. Govind Prasad & Ors. (SBCSA No.207/1999, decided on 29.08.2012) has also laid down that on the commitment of second default in payment of rent, the tenant cannot escape to the eviction decree, even if in the first round of litigation, no specific declaration of giving benefit under Section 13 (6) of the Act of 1950 was given by the courts below. 8. On the other hand, Mr. 8. On the other hand, Mr. Ravi Bhansali, learned counsel appearing on behalf of respondent-defendant-tenant supported the impugned judgment and decree of the first appellate court below and urged that in the absence of any specific benefit given under Section 13 (6) of the Act of 1950 in the first round of litigation, the tenant deserves to be given benefit of first default and the learned lower appellate court was justified in doing so. He, therefore, submitted that the present second of the plaintiff-landlord deserves to be dismissed. 9. Having heard learned counsels for the parties and upon careful perusal of the reasons assigned in the judgments and decrees of the courts below and record of the case, this Court is of the opinion that the present second appeal of the appellant-plaintiff-landlord deserves to be allowed and the substantial questions of law, framed above, deserve to be answered in favour of appellant-plaintiff and against the defendant-tenant. 10. Firstly, the learned lower appellate court below has fallen into obvious error in restricting itself and the trial court below while holding that they cannot go beyond the terms of the judgment and decree dated 05.02.1983 in the first round of litigation by way of Eviction Suit No.57/79 and thereby holding that since specific benefit under Section 13 (4)/13 (6) of the Act of 1950 was not given at the time of disposal of first suit, the second default for the period 01.01.1984 to 31.07.1984 was actually the first default and no eviction decree could be passed against the tenant in terms of Section 13 (6) of the Act of 1950. There is no such legal impediment or restriction in the law for not looking beyond the judgment and decree in the first round of litigation and one fails to understand as to why the facts and evidence before the Court at the time of first round of litigation could not be looked into. 11. Admittedly, the first suit was filed by the plaintiff-landlord on the ground of eviction stipulated in Section 13 (1) (a) of the Act of 1950, namely, for default in payment of rent for more than six months. 11. Admittedly, the first suit was filed by the plaintiff-landlord on the ground of eviction stipulated in Section 13 (1) (a) of the Act of 1950, namely, for default in payment of rent for more than six months. Merely because the Court, being duty bound to determine the provisional rent u/s 13 (3) of the Act of 1950, determined the same in accordance with law, which the tenant was obliged to pay as per the time limit frame stipulated in Section 13 (4) of the Act, which he did pay, it does not mean that there was no default on the part of tenant in payment of rent. In fact, it is only upon establishing the default and subsequent payment of provisional determined rent under Section 13 (3) of the Act of 1950, the tenant escapes the eviction decree in terms of Section 13 (6) of the Act of 1950. The proviso of Section 13 (6) of the Act of 1950, which makes the position clear, is reproduced herein below for ready reference: "13 (6): 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. Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months." 12. In fact, no benefit as such is given under Section 13 (4) of the Act and the benefit of 'no eviction decree' is given to the tenant only under Section 13 (6) of the Act, which stipulates that if the tenant makes deposit or payment as required by sub-section (4), no decree for eviction shall be passed by the court against him on the ground specified under Section 13 (1) (a) of the Act of 1950. The proviso makes abundantly it clear that such tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit once, if he again makes a default in the payment of rent of that accommodation for six months. The said proviso clearly appears to have escaped the notice of the first appellate court below. 13. The proviso makes abundantly it clear that such tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit once, if he again makes a default in the payment of rent of that accommodation for six months. The said proviso clearly appears to have escaped the notice of the first appellate court below. 13. Besides the aforesaid proviso of Section 13 (6) of the Act of 1950, the case-law cited before the lower appellate court in the case of Sobhraj (supra), also clearly supported the plaintiff-landlord in this regard. The relevant para 13 of the aforesaid judgment is quoted herein below:- "13. Another point urged by the learned counsel for the appellant is that proviso to Section 13 (6) cannot apply in the present case in as much as it is not proved that the appellant had committed default previously. It is true that in the previous suit no enquiry was held into the allegation of default because the appellant had applied under Section 13A of the Act within the time prescribed therein and consequently the suit for ejectment was dismissed without holding any enquiry into the allegations made by the parties. The proviso however makes it clear that a tenant shall not be entitled to any relief under this sub-section (sub-sec. (6)), if having obtained such benefit or benefit under section 13- A in respect of any such accommodation, he again makes a default in the payment of rent of that accommodation for six months. It is not the requirement of law there must be a finding as to the previous default. What is required is that the tenant must have obtained the benefit under section 13-A. That the appellant has admittedly done previously. As already held above he has again made a default in the payment of rent for more than six months and consequently he cannot save himself from ejectment by making deposit under section 13 (4)." 14. The learned lower appellate court below despite noticing the said judgment in para 10 of the impugned judgment though has noticed as many six case-laws, but none of them appears to have been discussed by the learned learned lower appellate court below. It rather reflects badly on the learned court below. 15. This Court recently in the case of Ranchod Mal & Anr. It rather reflects badly on the learned court below. 15. This Court recently in the case of Ranchod Mal & Anr. (CSA No.207/1999, decided on 29.08.2012) reiterating the aforesaid legal position and following various Supreme Court judgments again reiterated the legal position as under:- "19. The protection and the benefit or the leniency granted to the tenant under Section 13(6) of the Act is only for the first and bonafide lapse on his part and that benefit is also given upon deposit or payment of arrears of rent by him, but here the defendant tenant seems to be in habit of non- payment the rent to the landlord, though it was as minimal as Rs. 55/- per month and this case is a clearly bad example of undue advantage taken by the tenant of the protection of law given to tenant, subject to conditions which have to be strictly complied with and essentially fulfilled. Such protection is not available to such tenants, who are in the habits of committing defaults in payment of monthly rent to the landlord and then taking up the technical pleas like in the present case that the Court did not give any benefit of Section 13(6) at the time of deciding the previous suit No.708/77 on 18.11.77 or 18.08.1990 while disposing of the suit and, therefore, the second default for the period 19.10.90 to 2.3.95 is not actually the "second default", but becomes the first default. Such a blatant and frivolous plea cannot be and should not have been entertained by the courts below, but unfortunately it has not been entertained by the courts below, but the long drawn legal battle up to High Court has just given the undue advantage to the defendant tenant in the present case." 16. Therefore, in view of above discussion and so also in view of aforesaid legal position, this Court finds that the learned lower appellate court below has fallen into error in reversing the judgment and eviction decree of learned trial court dated 20.09.1989. 17. Consequently, the present second appeal filed by the appellant-plaintiff-landlord, Narsingh Prasad, deserves to be allowed and the same is hereby allowed with cost of Rs. 2000/-. The substantial questions of law framed above, are accordingly, answered in favour of appellant-plaintiff-landlord and against the respondent-defendant-tenant. 17. Consequently, the present second appeal filed by the appellant-plaintiff-landlord, Narsingh Prasad, deserves to be allowed and the same is hereby allowed with cost of Rs. 2000/-. The substantial questions of law framed above, are accordingly, answered in favour of appellant-plaintiff-landlord and against the respondent-defendant-tenant. The judgment and decree dated 07.11.1997 passed by learned first lower appellate Court of Additional District Judge, No.1, Bhilwara Camp- Shahpura is set aside and the judgment and decree dated 20.09.1989 passed by learned Civil Judge, Shahpura in Civil Original Case No.102/84- Narsingh Prasad v. Ram Prasad decreeing the plaintiff's eviction suit, is restored. 18. The respondent-defendant-tenant Ram Prasad S/o Ram Narayan Khatik shall hand over the peaceful and vacant possession of the suit shop to the appellant-plaintiff-landlord within a period of six months from today and shall pay cost aforesaid and the mesne profit Rs. 1,000/- per month commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the appellant-plaintiff till the vacant possession is handed over to the plaintiffs respondents and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-defendant shall also clear all the arrears of the rent or mesne profit within six months from today, otherwise the amount shall bear interest @ 9% p.a. and executing Court may quantify such amount and recover the same as a money decree. The defendant-respondent shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and, if so created, the same would be treated as void. The respondent-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the appellant-plaintiff within a period of six months from today, besides expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.Appeal allowed. *******