D. AGARWALLA Vs. B. DEVI AGARWALLA

JUDGEMENT

(1.) In this second appeal by the impugned judgment learned lower appellate Court reversed the judgment of the learned trial Court and dismissed the suit of the plaintiff.

(2.) Appellant as plaintiff filed the suit against the sole defendant for a decree for a sum of Rs. 6,000.00 and odd as arrears rent from 1st Aug., 1966 to July, 1969. The arrears of the rent for the earlier period of 1 year and 5 months were not claimed as it was barred by limitation. According to-the plaintiff, the defendant was inducted as a tenant from 1st Dec., 1957 at a monthly rent of Rs. 170.00. There is no dispute that the suit premises is being issued as a cloth shop under the name and style as "Minerva Store". The suit was resisted by the sole defendant mainly on the ground that she did not take the suit premises on rent from the plaintiff. According to the defendant her husband, Kedarmal Agarwalla was the tenant of the said shop. It has been stated that the said Kadarmal has also purchased the land on which the suit house is situated and he has filed a title suit against the present plaintiff which is pending. It has been denied that the suit house belongs to the plaintiff. Defendant has also stated in the written statement that she is pardanashin 'Marowary' lady dependant on her husband and she has no business by the name Minerva Stores. The learned trial Court decreed the suit on the ground that defendant took settlement of the suit premises from the plaintiff. However learned lower Appellate Court held that there was no relationship of landlord and tenant between the parties herein.

(3.) The present appeal was filed on 30-12-1981 and it was admitted on 3-5-1982. On 15-3-1984 an application under order 41 Rule 23 read with Order 13 Rule 10 and Sec. 151 Code of Civil Procedure was filed in this appeal praying for calling for the record of Misc. Appeal No. 12 of 1972 from the Court of learned District Judge, Kamrup. Though petition was registered as Misc. Case No. 21/84 in connection with the present second appeal, earlier to that, on perusal of the order dated 5-3-1984 passed in the main second appeal I find that an application for taking additional evidence was filed by the appellant before this Court. Both the matters were disposed of by order dated 11-7-1984 passed in the above Misc. Case and this Court directed calling for the records as prayed for and further directed that the question of additional evidence would be considered at the time of final hearing. The record is before this Court and learned counsel for both the parties have advanced arguments both on merit of the appeal as well as allowing appellant a chance to give additional evidence by remanding this appeal to the learned lower appellate Court. Before I consider the prayer for taking additional evidence let me consider the merit of this appeal.