Dwarka Prasad, J.
1. This second appeal arises out of a suit for ejectment and for recovery of arrears of rent.
2. The only question argued in this appeal is as to whether the plaintiff appellants are entitled to get a decree for ejectment on the ground of defaults in payment of rent.
3. The defendant is said to be a tenant of the plaintiff in respect of upper portion of the premises situated in Bikaner, on a monthly rent of Rs. 9/- The defendant paid rent upto November 27, 1963. According to the plaintiff, thereafter the defendant did not make payment of rent. On the other hand, the defendant alleged that he sent rent by money-orders, but the plaintiff refused to accept the same and they were returned with the endorsement of refusal. The suit for ejectment was based on three grounds, namely defaults in payment of rent, personal necessity and material damage to the leased property. All the allegations were denied by the defendants. The question of material damage to the property was not pressed by the plaintiff and no issue was framed in respect thereof by the trial court. The issue of personal necessity was found against the plaintiff by both the courts below and the same has not been pressed in this second appeal. As there is a concurrent finding of fact recorded by both the courts below that the plaintiff had failed to establish his bonafide and reasonable necessity in respect of the suit premises, it is also not possible to contest the question now. On the question of defaults in payment of rent, both the courts below held that the defendants had sent money-orders which were not accepted by the plaintiffs and as such the defendants could not be held to be defaulters.
4. It was urged on behalf of the plaintiff in the trial court that after the defendants had made payment of the amount calculated by the trial court, in accordance with the provisions of Sub-section (4) of Section 13, he failed to make payment of rent for the month of May 1969. The rent for that month was to be paid, in accordance with Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction Act) 1950 (hereinafter referred to as 'the Act') upto the 15th of June 1969, but the defendant deposited the rent for the month of May 1969 along with the rent for the month of June 1969 on July 10, 1969.
5. On this ground the plaintiff prayed that the defence of the defendant against eviction should have been struck off. The trial Court thought that to pick up one stray month during the long period of almost seven years, during which the suit remained pending in the trial court, was too insignificant and the payment of rent in respect of the month of May 1969 after the delay of about 13 days could not be enough by itself to strike out the defence of the defendant against eviction.
6. This question was again pressed by the plaintiff before the first appellate court. The first appellate court came to the conclusion that rent for the month of May 1969 should have been paid or deposited upto June 29, 1969 when the court re-opened after summer vacation, even if the same was not paid upto 15th June. But as the defendant deposited the rent for the month of May 1969 on 10th July 1969, the deposit was in contravention of the provisions of Sub-section (5) of Section 13 and the defence of the defendant against eviction was liable to be struck off under Sub-section (6) of Section 13 of the Act. The first appellate court, however considered the evidence led by the defendant relating to sending the rent by money-orders and observed that the plaintiff had failed to prove that the defendant had neither paid nor tendered rent for a period of more than six months and as such the dismissal of the suit was upheld.
7. In this appeal, it was argued by the learned Counsel for the appellant that once the first appellate court proceeded to strike out the defence of the defendant against eviction, under Sub-section (6) of Section 13 of the Act, then it could not consider the evidence of the defendant either oral or documentary, in respect of his defence against eviction and the money-order forms and coupons could not have been considered by the first appellate court. It was also submitted that the fact that rent was paid upto November 1963 only had not been controverted by the defendant and as the evidence regarding tendering of rent by money orders cannot be looked into, a decree for eviction ought to have been passed in favour of the plaintiff-appellant.
8. On the other hand, learned Counsel for the respondent argued that the first appellate court was not justified in striking out the defence of the defendant respondent under Section 13(6) of the Act.
9. So far as the striking off the defence of the defendant-respondent is concerned, the fact is not disputed that the rent from the month of May 1969, which was payable in accordance with the provisions of Sub-section (4) of Section 13 by 15th of June, 1969, was not paid until July, 10, 1969. It was submitted that the Civil Courts were closed owing to summer vacation in the month of June but as the courts re-opened on 29th June, the defendant should have deposited the rent for the month of May 1969 as soon as the court re-opened after summer vacation, even if it was not possible for him to make payment or to deposit the rent during the vacation. No explanation was furnished by the defendant in the trial court as to why the rent was not deposited by him immediately after the summer vacation and the delay upto 10th July, 1969 was not explained. Yet before the first appellate court an affidavit was filed stating that the defendant was suffering from typhoid upto 9th July, 1969, but no medical certificate was produced and the learned first appellate court refused to condone the delay in depositing the rent for the month of May on 10th July 1969.
10. The provisions of Sub-section (4) of Section 13 of the Act, as they stood at the relevant time, enjoined upon the tenant to deposit rent month by month, by the 15th of the next succeeding month, during the pendency of the suit and any default made in this respect made the tenant liable for striking off his defence against eviction, under Sub-section (6) of Section 13. From the facts mentioned above, it is clear that the rent for the month of May 1969 was not paid or deposited upto 15th June 1969 nor the same was even deposited upon the re-opening of the court. The first appellate court refused to accept the contention of the defendant tenant the was suffering from typhoid during the period from 26th June. 1969 to 9th July 1969 as no medical certificate was filed in support of this contention. It was also pointed out in this connection that no such plea of illness was advanced by the defendant in the court of first instance where the question that the rent for the month of May 1969 was not deposited within the prescribed time was specifically raised on behalf of the plaintiff. If the defendant tenant was really ill during the relevant period, he should have set up the ground of illness at the earliest opportunity before the trial court. As the defendant failed to raise the question of illness in the trial court, the first appellate court was right in disbelieving the plea of illness of the tenant. Thus, it clearly emerges that rent for the month of May 1969 was neither paid nor deposited within the prescribed period. The first appellate court was, therefore, justified in striking out the defence of the defendant tenant against eviction.
11. After the defence of the tenant was struck-off, neither oral nor even the evidence produced by him, in relation to his defence against eviction could be considered by the first appellate court. The money-order coupons and forms, which are said to have been returned with the endorsement of refusal, could not, therefore, be looked into. The plaintiff has stated in his statement on oath that the rent was paid to him only upto November, 1963. It is surprising that in the cross-examination of the plaintiff, not a single question was put to him about tendering the rent by money-orders. The plaintiff should have been confronted with the money-order coupons and he should have been asked as to whether he refused the several money-orders alleged to have been sent by the defendant tenant. The oral statement of the defendant and his witnesses or even the documents produced by him could not be looked into after the defence of the defendant against eviction was struck off. In these circumstances I am unable to agree with the learned Civil Judge, Bikaner that the defendant has not been proved to be a defaulter in payment of rent. As rent was admittedly due after November, 1963, there can be no doubt that more than six months rent was not paid. No question about tender of rent for the period after November, 1963 was put to the plaintiff in cross-examination and as such evidence of the defendant about the tendering rent for the subsequent period cannot be considered when the defence of the defendant against eviction has been struck off. As the rent of the premises in dispute was in arrear for a period of more than six months prior to the institution of the suit, it must be held that the same was neither paid not tendered, as the evidence of the defendant regarding tender cannot be looked into, It must, therefore, be held that the defendant was a defaulter in payment of rent for a period of more than six months. Thus I am satisfied that the ground contained in Clause (a) of Sub-section (1) of Section 13 has been proved against the defendant tenant and he was a defaulter in payment of rent for a period of more than six months.
12. In the result, the appeal is allowed. The decree passed by the two courts below is set aside and the plaintiff's suit for ejectment of the defendant from the premises in dispute is decreed. The parties shall bear their own costs in all the courts. The defendant-tenant is allowed four month's time to vacate the premises.