ORDER : Ashok Kumar Jain, J. 1. This S.B. Civil Second Appeal is preferred aggrieved from judgment dated 03.04.1998 in Civil Regular Appeal No.2/1998 by learned Additional District Judge No.2, Ajmer whereby appeal preferred under Section 96 CPC by present appellant defendant was dismissed and judgment and decree dated 02.11.1987 in civil suit no. 356/1982 passed by learned Upper Munsif Magistrate, Ajmer (East) was upheld. Learned Additional Munsif Magistrate, Ajmer (East) passed a decree of eviction and arrears of rent. 2. The facts giving rise to this S.B. Civil Second Appeal are that respondent-plaintiff Amar Nath Bhargava and Mrs. Shail Bhargava filed a civil suit for eviction on second default against the appellant defendant, wherein appellant defendant had filed written statement denying the facts narrated by the plaintiffs. The trial court has framed three issues. In evidence of plaintiff, only Ex. 1 document was exhibited and evidence of plaintiff was closed on 05.07.1985. DW-1 Suresh Chand was examined as witness on behalf of appellant defendant. 3. Learned trial court after considering the material on record has decided issue nos. 1 and 2 in favour of plaintiffs as a result of which following decree was passed in favour of plaintiffs and against the defendant appellant and same is reproduced as under : 4. Aggrieved from aforesaid, appeal under Section 96 was preferred and same was dismissed on 03.04.1998 and following order was passed : 5. Aggrieved from aforesaid, instant S.B. Civil Second Appeal was filed. The appeal was admitted on 07.12.2005 and following substantial question of law were framed and same are reproduced as under : “(1) Whether a Civil Court is empowered to award damages on monthly basis @ which is more than 10 times of the actual rent in case of rent and eviction (2) Whether the issue can be framed and evidence can be called upon in negative terms. (3) Whether in absence of evidence of Plaintiff i.e. non-appearance of Plaintiff in witness Box, the pleadings of the suit can be treated or deemed as having been proved.” 6. Learned counsel for appellant submitted that after considering the pleadings of the parties, the trial court has settled the issues wherein the burden was fixed on defendant and same is against the established cannons of Evidence Act. Learned counsel for appellant submitted that after considering the pleadings of the parties, the trial court has settled the issues wherein the burden was fixed on defendant and same is against the established cannons of Evidence Act. He further submitted that the plaintiffs themselves did not entered into the witness box to support the claim of the plaintiff but without the evidence of the plaintiff, a suit for eviction was decreed. He also submitted that the issue was for committing second default and first default was not established before the trial court. He also referred to the documents and submitted that no where was it established that the appellant defendant was ever granted the benefit of first default and again defendant has committed a second default. He also submitted that when the appeal was preferred before the appellate court, even then the appellate court has failed to consider the grounds raised by the appellant. He specifically submitted that onus of proof was wrongly placed on the defendant appellant and it has caused great prejudices. He referred to the judgment in cases of Murlidhar Vs. Mukund Ram 1993 (2) RLR 549 , B.B. Bhalla Vs. Rameshwar Kishore 2001 DNJ (Raj) 298 and submitted that wrong placement of onus on defendant is a ground to entertain the appeal. He also submitted that the plaintiffs had failed to appear in the witness box to prove his case or rebut the evidence of DW-1, therefore, the findings on issue nos. 1 and 2 is erroneous and against the law. He relied upon the judgment in cases of B.B. Bhalla Vs. Rameshwar Kishore 2001 D.N.J. (Raj) 298, Dr. Kedar Nath Vs. Dhapu Kanwar 2004 (3) RLR 601, Chitra Kumar Vs. Union of India 2001 (3) SCC 208 . He also submitted that the plaintiff did not cross-examine the defendant on defence taken in written statement and in examination-in-chief of DW-1, and the evidence of DW-1 remained unrebutted, therefore, the findings on issue nos. 1 and 2 is erroneous. He relied upon judgment in cases of AEG Carapiet Vs. A.Y. Derderian AIR 1961 Calcutta 359 (DB), Bhanwar Lal Vs. Shankar Lal 2000 (2) RLR 374, Sarwan Singh Vs. State of Punjab 2003 (1) SCC 240 , Karnidam Sardar Vs. Sailaja Kanta AIR 1940 Patna 683, M/s. Chuni Lal Dwarka Nath Vs. Hartford Fire Ins. AIR 1958 Punjab 440, Bhoju Mandal Vs. A.Y. Derderian AIR 1961 Calcutta 359 (DB), Bhanwar Lal Vs. Shankar Lal 2000 (2) RLR 374, Sarwan Singh Vs. State of Punjab 2003 (1) SCC 240 , Karnidam Sardar Vs. Sailaja Kanta AIR 1940 Patna 683, M/s. Chuni Lal Dwarka Nath Vs. Hartford Fire Ins. AIR 1958 Punjab 440, Bhoju Mandal Vs. Debnath Bhagal AIR 1963 SC 1906 , Traders Syndicate Vs. UOI AIR 1983 Calcutta 337, Ram Chandra Dixit Vs. Arvind Kumar 2008 (1) MPLJ 488 , MDS Vs. Kailash Chand 2008 WLC (UC) 32 (DB), Mishri Bai Vs. Krishna Lal 1997 (2) RLW 884, Sunita Vs. NIC 2008 WLC (UC) 480, Sirmul Vs. Annapurna 2001 (2) MPLJ 339 . He further relied upon judgment in case of Ismail Vs. Abdulla AIR 1931 Bombay 118, Damadi Lal Vs. Parasram AIR 1976 (SC) 2229 and submitted that tender by cheque is a good and proper tender. He further relied upon the judgment in case of S.P. Deshumukh Vs. Shah Nihal Chand 1977 (2) Rent Law Reporter 434 (SC) and submitted that whenever the landlord used to take rent on certain interval of few months then, no default is committed. He specifically relied upon the judgment in cases of Uptron India Ltd. Vs. Shameen Bhan AIR 1998 (S.C.) 1681 , Central Council Vs. Dr. K. Santha Kumar 2001 (5) SCC 60 and submitted that any concession by counsel in absence of a party cannot bind his or her client. He also referred Bipin Chandra Vs. Prabhawati AIR 1957 (SC) 176 , and submitted that constructive and creative cause of action can neither create right nor provide any right to initiate legal proceedings. He also referred Ram Kumar Agarwal and Anr. Vs. Thawar Das (dead) through LRs AIR 1999 SC 3248 and submitted that in case decree passed by the Court below was executed for want of stay, even then the judgment debtor has a right to prosecute the appeal and same cannot be dismissed as rendered infructuous. He also relied on the judgment in cases of Kavita Trehan Vs. Balsara AIR 1995 (S.C.) 441 , Lal Bhagwati Singh Vs. Shri Krishan Das AIR 1953 (S.C.) 136 and submitted that in the case appeal is allowed then under Section 144 of CPC restitutionary power is inherent in every court and the court is duty bound to restitute the successful party. 7. Balsara AIR 1995 (S.C.) 441 , Lal Bhagwati Singh Vs. Shri Krishan Das AIR 1953 (S.C.) 136 and submitted that in the case appeal is allowed then under Section 144 of CPC restitutionary power is inherent in every court and the court is duty bound to restitute the successful party. 7. Aforesaid contentions were opposed by learned counsel for respondent plaintiff on the ground that the record of the trial court is an admissible document and Ex. 1 was filed in support of evidence of the plaintiff which establishes that appellant defendant was allowed the benefit of first default under Section 13(6) of the Rajasthan Rent Control Act, 1950. He also submitted that the trial court has framed issues on the basis of pleadings of the parties and after settling the issues, appellant plaintiff has not raised any objection on issues or on burden of proof, therefore, he cannot raise an issue which he accepted before the trial court. He also submitted that from admission in the written statement and evidence of DW-1 it was established that after completion of six months, the rent was sent by cheque and same was returned by the plaintiffs with a communication that the rent was received after completion of six months. He also submitted that under the old Rent Control Act, the appellant defendant was having the option to send arrears of rent by money order and on refusal he could deposit the same before the trial court but the appellant has not taken recourse to the process as provided under the law. 8. Heard learned counsel for the parties. Perused the judgments as referred by learned counsel for appellant. Scanned the entire record. (A) Substantial Question no.1: Whether a Civil Court is empowered to award damages on monthly basis @ which is more than 10 times of the actual rent in case of rent and eviction? 9. Learned counsel for appellant has referred to the fact that the agreed rent between the parties was Rs.90.70/- per month. The appellate court has enhanced it to Rs.1000/- per month as mesne profit. 10. We have considered the submissions of learned counsel for the parties. As regard to mesne profit is concerned, in case of M/s. Atmaram Properties Vs. 9. Learned counsel for appellant has referred to the fact that the agreed rent between the parties was Rs.90.70/- per month. The appellate court has enhanced it to Rs.1000/- per month as mesne profit. 10. We have considered the submissions of learned counsel for the parties. As regard to mesne profit is concerned, in case of M/s. Atmaram Properties Vs. Federal Motor Pvt. Ltd. (2004) 10 Scale 345 Hon’ble Supreme Court after considering the provision of Rent Control Act and also order 41 CPC opined that the appellate court does have the jurisdiction to put the application on such reasonable terms as would in its own reasonably compensate the decree holder for loss occasioned by delay in execution of decree by the grant of stay order in the event of appeal being dismissed. Again with respect to Rajasthan Rent Control Act, 2001 and Rajasthan Premises (Control of Rent and Eviction) Act, 1950 this issue of mesne profit was considered in case of M/S Martin And Harris Private Limited vs Rajendra Mehta 2022 AIR Online SC 937. After passing the decree of eviction, the tenancy terminated and from the said date the landlord is entitled for mesne profit or compensation depriving him from the use of the premises. The view in case of M/s. Atmaram Properties (surpa) was affirmed in case of M/S Martin And Harris Private Limited (supra). 11. Considering the aforesaid legal position, the appellate court was well-justified in awarding damages as mesne profit in place of actual rent after dismissal of appeal under Section 96 of CPC, therefore, this issue is answered in “negative”. (B). Substantial question no.2: Whether the issue can be framed and evidence can be called upon in negative terms? 12. Learned counsel for the appellant has referred judgment in case of Murlidhar Vs. Mukund Ram (supra), Bhalla Vs. Rameshwar Kishore (supra), Bengal Coal Company Vs. Prosanna Kumar AIR 1932 Calcutta 39 (DB), Jagdish Narayan Vs. Nawab Said Ahmed Khan AIR 1946 Privy Council 59, Brahmanand Puri Vs. Neki Puri & Anr. AIR 1965 S.C. 1506 , Panchu Gopal Baruwa Vs. Umesh Chandra 1997 (4) SCC 713 , Ramdas Vs. Salim Ahmad 1998 (9) SCC 719 , T.K. Mohd. Abu Buker Vs. PSM Ahmad Abdul Khadar 2009 (14) SCC 224 , Durga Committee Vs. Siankavasi Jain Sharawak Sangh 1974 WLN (UC) 202, Nirakar Das Vs. Gour Hari Das and Ors. AIR 1965 S.C. 1506 , Panchu Gopal Baruwa Vs. Umesh Chandra 1997 (4) SCC 713 , Ramdas Vs. Salim Ahmad 1998 (9) SCC 719 , T.K. Mohd. Abu Buker Vs. PSM Ahmad Abdul Khadar 2009 (14) SCC 224 , Durga Committee Vs. Siankavasi Jain Sharawak Sangh 1974 WLN (UC) 202, Nirakar Das Vs. Gour Hari Das and Ors. AIR 1995 Orissa 270, Palungbam Hitler Singh Vs. Angom Ashok Singh 2012 (4) Gauhati Law Journal 537, Nizam Ahmed Vs. State of Assam 2012 (6) Gauhati Law Journal 202, TINI Lab. Pvt. Ltd. Vs. Syed Basheer Ahmed 2013 (5) Andhra Law Times 349, Ranjan Acharya Vs. Arjun Raut & Ors. 2010 (109) Cuttack Law Times 158, Chinaram Vs. Fekan Ram 2012 (1) AIR Jharkand Reports 31. 13. A perusal of record clearly indicated that the burden of issue no.1 was upon plaintiff and after settling the issue on 08.04.1985 the matter was fixed for evidence of plaintiff on 15.07.1985. On 15.07.1985 a document was exhibited as Ex. 1 and after this exhibit, the evidence of plaintiff was closed after reserving the right to submit evidence in rebuttal. The matter was fixed for defence evidence. 14. A perusal of aforesaid clearly indicated that the burden on issue no.1 was rightly placed on plaintiff and the matter was initially fixed for evidence of plaintiff. The plaintiff has exhibited only one document and later on he closed his evidence. Thus, the contentions of learned counsel for appellant is not only mischievous but it is vague. It appears that learned counsel for appellant has not gone through the record while advancing the arguments before the Court. 15. In view of the proceeding dated 08.04.1985 and 15.07.1985 the arguments of learned counsel for appellant cannot be accepted. The placement of burden is basically a procedural exercise and during pendency of civil suit this issue could be raised by the appellant defendant before the trial court but no such objection was raised after settling the issue on 08.04.1985 till the closure of evidence of defendant on 26.08.1987. Ultimately on 26.09.1987 the rebuttal evidence was closed by the plaintiff. 16. In view of the order-sheet of the trial court, the contention of learned counsel for appellant cannot be accepted hence, this issue is answered in “negative”. (C). Ultimately on 26.09.1987 the rebuttal evidence was closed by the plaintiff. 16. In view of the order-sheet of the trial court, the contention of learned counsel for appellant cannot be accepted hence, this issue is answered in “negative”. (C). Substantial question no.3: Whether in absence of evidence of Plaintiff i.e. non-appearance of Plaintiff in witness Box, the pleadings of the suit can be treated or deemed as having been proved? 17. Learned counsel for appellant relied upon the judgment in case of Murlidhar Vs. Mukund Ram (supra), B.B. Bhalla Vs. Rameshwar Kishore (supra) and submitted that the plaintiff has not entered in witness box and he did not examine himself. He further submitted that the mere marking of Ex. 1 does not absolve the burden on plaintiff to establish his facts. Herein this case, initially, the matter was fixed for evidence of the plaintiff after settling issues. Order XII of CPC provides for admission and Rule 4 specifically provides for a notice to admit facts. Rule 6 of XII CPC further provides judgment on admissions. The provisions of CPC are meant to cut short the procedure, provided that the Court understands and observes the procedure. It is duty of the lawyers to use provisions of CPC not only to cut short the procedure but also to assist in providing early justice to the litigants. Though, CPC is a lengthy code but if the provisions are strictly applied then it helps in early disposal of the civil case. 18. Herein this case, the best part is the admission and denial by the counsels before the trial court. The counsel for respondent plaintiff has admitted certain documents produced by the appellant and on the basis of same, these documents were exhibited, therefore, in the process of aforesaid, a certified copy of order-sheet which is final order (judgment) in Civil Suit no. 399/1979 was exhibited as Ex. 1 and after this exhibition the evidence of plaintiff was closed. Assuming the fact that this order was exhibited in the cross-examination of DW-1 and plaintiff has not even appeared in the evidence, even then on the basis of admission in written statement, a judgment can be pronounced against the defendant. Herein, DW-1 appeared in witness box and he was cross-examined by the counsel for the plaintiff. Assuming the fact that this order was exhibited in the cross-examination of DW-1 and plaintiff has not even appeared in the evidence, even then on the basis of admission in written statement, a judgment can be pronounced against the defendant. Herein, DW-1 appeared in witness box and he was cross-examined by the counsel for the plaintiff. The cross-examination clearly indicated that prior to the institution of present suit, a suit for arrear of rent and eviction was filed on previous occasion wherein there was a compromise. The admission indicated that on previous occasion, the suit was instituted and the claim of the plaintiff was affirmed from the cross-examination of DW-1. Ex. 1 is final order (judicial procedure) between the same parties and it clearly indicated that on 09.04.1980, benefit of first default was granted to appellant defendant. Subsequent to aforesaid, a cheque no. 931307 dated 31.03.1982 for Rs.544.20/- was sent by letter dated Ex. A/2 on 04.05.1982. Again, the rent for month of April, 1982 was sent by letter dated 11.05.1982 (Ex. A/1) and both the cheques were returned by the plaintiff vide letter dated 22.05.1982 (Ex. A/3) informing the appellant defendant that the appellant has committed second default for a period of six months, and these cheques were returned. The document submitted by appellant defendant indicated that six months rent was sent on 04.05.1982 meaning thereby the rent which was due from 01.10.1981 to 31.03.1982 was tendered on 04.05.1982. The evidence of DW-1 suggests that the rent was not sent through a money order and this witness was never involved in any transaction related to rent. According to DW-1, the landlord was in the habit of receiving rent once in five, six months. Learned counsel for appellant relied upon several judgments and we have perused the judgments in cases of Ismail Vs. Abdulla (supra), S.P. Deshmukh Vs. Shah Nihal Chand (supra), Uptron India Ltd. Vs. Shameen Bhan (supra), Bipin Chandra Vs. Prabhawati (supra), Kavita Trehan Vs. Balsara (supra), Lal Bhagwati Singh Vs. Shri Krishan Das (supra). 19. The responsibility of payment of monthly rent was upon the defendant and the evidence of DW-1 suggests that he was not involved in the affairs of payment of rent. This witness was also not aware about the facts. Shameen Bhan (supra), Bipin Chandra Vs. Prabhawati (supra), Kavita Trehan Vs. Balsara (supra), Lal Bhagwati Singh Vs. Shri Krishan Das (supra). 19. The responsibility of payment of monthly rent was upon the defendant and the evidence of DW-1 suggests that he was not involved in the affairs of payment of rent. This witness was also not aware about the facts. Moreover, the documents submitted on record indicate that the defendant has already taken benefit of first default in previously instituted suit and subsequent to aforesaid, it is expected of the defendant to remain vigilant when the rent was not accepted on time. A provision was already provided under the old Rent Control Act of 1950 but no such exercise was carried out by the appellant defendant hence, the defence as raised by the appellant is not helpful, therefore, even in absence of evidence of plaintiff, any fact can be established from the material on record, therefore, the judgments as referred by learned counsel are not applicable in the instant case. 20. In view of aforesaid, this question is answered in “negative”. 21. After considering the submissions of learned counsel for the parties, the issue no. 1 to 3 are answered in negative, therefore, there are no grounds for interference, in the instant appeal. 22. As regard to second default is concerned, this is a question of fact and under Section 100 of CPC the court cannot enter into question of fact unless same is perverse and illegal. Herein, the appellant has failed to establish that the judgments of trial court and the first appellate court were illegal and perverse. 23. Thus, the instant civil second appeal sans merit and is liable to be dismissed. 24. In view of aforesaid, the instant second appeal, preferred aggrieved from judgment dated 03.04.1998 in civil regular appeal no. 2/1998 is hereby dismissed. 25. No order as to costs. 26. Misc. application if any, stands disposed of.