JAYKANT HARKISHANDAS SHAH Vs. DURGASHANKER VALJI PANDYA

JUDGEMENT

(1.) Original defendant No. 1 has filed the present appeal against the decree passed by the learned District Judge Rajkot in Civil Appeal No. 21 of 1965 by which he confirmed the decree passed by the learned Joint Civil Judge Junior Division Rajkot ordering him to pay the plaintiff a sum of Rs. 4810-25 as rent.

(2.) A few facts out of which the present litigation has arisen may be stated:- The plaintiff respondent owns the premises known as `Pandya Nivas situated in Street No. 3 Jagnath Plot Rajkot. On 14th April 1953 the same were taken on lease at an annual rent of Rs. 3251/by one Nagindas Nagardas Shah as the guardian of Jaikant Harkishandas for running Jaikant Dinner Club therein. The lease deed was for a fixed period of one year and was a registered one. After the expiration of one year the premises were continued to be occupied by the tenant and as some rent amounting to Rs. 3720-50 fell due upto 23-4-59 the same was demanded. As it was not paid a suit was filed on 2nd November 1959 claiming Rs. 4813-04 out of which a amount of Rs. 4799-50 was for rent and the remaining amount for notice charges etc. In the suit guardian Nagindas Nagardas Shah was joined as guardian of minor Jaykant Harkishandas Shah. No separate relief was claimed personally against guardian Nagindas Nagardas Shah. In his capacity as a guardian Nagindas Shah had filed his written statement at Ex. 9. While the suit was pending an affidavit was filed by him on 26th April 1960 stating that minor Jaykant was born on 20 October 1940 and that he has attained majority before the date on which the suit was filed. Under the circumstances the plaintiff had filed an application to join Jaykant as major and the name of guardian Nagindas was deleted. A summons was duly served or Jaykant but he had remained absent on the date fixed for hearing. Under the circumstances an ex parte decree was passed against him. Subsequently he filed an application to set aside that decree. In that application his deposition was recorded the certified copy of which is produced in this case at Ex. 94. Thereafter Nagindas Nagardas was also joined as defendant No. 2.

(3.) The defendants contested the claim of the plaintiff Jaykant Harkishandas who will hereinafter be referred to as defendant No. 1 denied that the suit premises were leased to him or that he was holding over after the expiry of the period of rent note. He denied that he was running Jaykant Dinner Club therein. He denied that defendant No. 2 was his de facto guardian and contended that the rent note executed by defendant No. 2 was not binding on him. It was his case that the business was run by defendant No. 2 in partnership with his wife Vimla and thereafter defendant No. 2 has transferred or assigned the same to others. Defendant No. 2 in his written statement contended that he was running the business in partnership with his wife Vimla in the name and style of Jaykant Dinner Club. He adopted the other contentions raised by defendant No. 1.