SHRI BANSHILAL Vs. SHRI PYARELAL

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge No. 1, Udaipur dated 26th November, 1987.

(2.) THE plaintiff filed a suit against the defendant for eviction from the premises on account of second default in payment of rent. The suit was contested by the defendant and it was alleged that plaintiff cannot get any benefit of his earlier suit and, therefore, he shall not be entitled to any decree on account of second default. The suit was decreed by the trial Court, and aggrieved against this, the defendant preferred an appeal and appeal was also dismissed by the appellate Court. Hence, the present second appeal.

(3.) MR . Dave, learned counsel for the respondent has submitted that in suit No. 37/77 there was arrear of rent from 1.5.1972 to 31.5.1974 but the plaintiff took the benefit of depositing the amount of first date of hearing, even if it is accepted that the earlier suit was dismissed but fact remains that the defendant has already been taken a benefit in earlier suit by depositing the rent on the first day, thereby saving from the penalty of striking out his defence. Learned counsel submits that he cannot avail a second benefit also. In this connection, learned counsel has invited my attention to proviso to sub-section 6 of Section 13 of the Act. Learned counsel has also invited my attention to the cases Sobhraj v. Banwarilal, (R.L.W. 1974 P. 251), Bhikam Chand v. Jugal Kishore, (R.L.W. 1979 P. 137) and Shyam Lal and another v. Upbhokta Sahakari Samiti Jodhpur, (A.I.R. 1983 Raj. P. 133).