BALLABHDAS RATHI Vs. GOPAL KRISHNA GOUSHALA

JUDGEMENT

(1.) BEING aggrieved by the judgment-decree dated 28-10-99, passed by Additional District Judge, Sohagpur in C. A. No. 10-A/96, reversing the judgment-decree dated 16-5-96, passed by Civil Judge Class I, Sohagpur in C. S. No. 30-A/91, defendant/appellant has preferred this appeal under Section 100, CPC.

(2.) THE appeal has been heard on the following substantial question of law:-

(3.) DEFENDANT/appellant is a tenant of the plaintiff/respondent in the suit house on monthly rent of Rs. 300/- per month. Defendant/appellant remained in arrears with effect from 15-7-80 and did not pay in spite of service of notice of demand. Further, the suit house being old and dilapidated has become unsafe-unfit for human habitation and is required bonafide for carrying out repairs which can not be carried out without the same being vacated. Therefore, plaintiff/respondent instituted C. S. No. 30-A/91 seeking eviction and recovery of arrears of rent. The suit was resisted stating inter alia that defendant/appellant is not in arrears and the suit house is not bonafide required for carrying out repairs etc. On 10-12-92, defendant/appellant was proceeded ex parte. The same day, witnesses Dev Kishan Das (P. W. 1), Hari Shankar (P. W. 2), Shiv Kumar (P. W. 3) were examined. Thereafter, defendant/appellant filed application under Order 9 Rule 7, CPC for setting aside the order dated 10-12-92 proceeding ex parte. This application was allowed vide order dated 6-10-93. Vide order dated 17-2-96, deciding the application under Section 13 (1), (6) of the M. P. Accommodation Control Act (hereinafter be referred as 'act'), defendant/appellant was directed to pay Rs. 28,200/-, arrears for the period from 6-4-88 to 6-2-96 and thereafter to pay regularly rent at the rate of Rs. 300/- per month. The defendant/appellant did not comply with the order. The case was thereafter fixed for recording of evidence. On 25-4-96, the, defendant/appellant remained absent and his case for evidence was closed. The Civil Judge vide judgment dated 16-5-96 held that statements of witnesses Dev Kishan Das (P. W. 1), Hari Shankar (P. W. 2), Shiv Kumar (P. W. 3) examined on 10-12-92 can not be read in evidence. There being no other evidence, the suit seeking eviction under Section 12 (1) (a), (g) of the Act and for recovery of arrears was dismissed. Being aggrieved, plaintiff/respondent preferred C. A. No. 10-A/96 before Additional District Judge, Sohagpur. The Court below held that statement of witnesses recorded on 10-12-92 may be read in evidence. There being no other evidence, relying on statements aforesaid of plaintiff/respondent's witnesses, the suit seeking eviction and recovery of arrears of rent has been decreed. Being aggrieved, defendant/appellant has preferred this appeal under Section 100, CPC.