SHYAMLAL Vs. UPBHOKTA SAHAKARI SAMITI

JUDGEMENT

(1.) This second appeal by plaintiff No. 1 (Shyamlal) is directed against the appellate judgment and decree dated September 21, 1977 of the Additional Civil Judge, Jodhpur by which, he accepted the appeal and set aside the judgment and decree dated September 29, 1976 of the Munsiff City, Jodhpur in a suit for arrears of rent and ejectment.

(2.) Respondent No. 2 Smt. Usha was plaintiff No. 2 in the trial court. The appellant and respondent No. 2 (plaintiff-landlord) owned a building situate at plot No. 258, B-Road, Sardarpura, Jodhpur. The defendant-respondent No. 1 (tenant) took each of shops Nos. 1 and 2 of the aforesaid building on rent at the rate of Rs. 30/-per month. It was stated that the defendant has not paid the rent after June 1, 1974 and that the rent and damages for use and occupation from June 1, 1974 to May 13, 1975 i.e. for 11 months and 13 days amounting to Rupees 686/- were due from it, which it failed to pay despite demands. A notice is said to have been issued by the plaintiffs through their counsel on January 29, 1975 terminating the tenancy from February 28, 1975, as it commences from the first of each English calendar month. An pption clause was also inserted in the notice. The notice was served on the defendant on February 1, 1975. As the defendant failed to make payment of the arrears of rent and damages for use and occupation and to deliver the possession, the suit was instituted in the Court of Munsiff City, Jodhpur on May 14, 1975. The plaintiffs claimed ejectment on the ground of default in payment of rent. A decree for Rs. 686/-being arrears of rent and further damages for use and occupation from the date of the suit until the delivery of the shops @ Rs. 60/ (Rs. 30/-per shop) per month were also claimed. The defendant contested the suit. It was pleaded that the defendant was not a defaulter in payment of rent. On August 4, 1975, an application was submitted on behalf of the defendant under Section 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) as it existed then (hereinafter referred to as 'the Act'). The reference hereinafter to the various provisions of the Act shall be as they existed at the relevant time. The order was passed on this application by the learned Munsiff on the same day. The defendant deposited the entire rent and interest up to August 13, 1975. It was stated that the plaintiffs are not entitled to interest and costs of the suit. In the additional pleas, an objection was taken that in the absence of notice under Section 143 of the Rajasthan Co-operative Societies Act, 1965 (No. XIII of 1965) (for short the Act of 1965' hereafter) to the Registrar, Co-operative Societies, the suit is not maintainable. In other words, it was stated that the defendant was entitled to notice under Section 143 of the Act of 1965. On August 11, 1975, an application was moved under Section 13 (7) of the Act stating inter alia that the plaintiff have instituted the suit for ejectment on the ground of default in the payment of rent and that as the defendant has deposited the entire rent and interest, the suit of the plaintiffs may be dismissed with costs. A reply was filed on behalf of the plaintiffs on August 10, 1975 averring that the defendant is not entitled to the benefit of Section 13 (7) of the Act. The learned Munsiff, on August 19, 1975 framed the issues, which when translated into English read as under--

(3.) The plaintiffs examined Shyamlal (P. W. 1) and the defendant examined Ramsingh (D. W.). On July 15, 1976, an application was moved On behalf of the plaintiffs under Section 13 (5) of the Act. Arguments on the main case and the application under Section 13 (5) of the Act were heard by the learned Munsiff on September 20, 1976. The learned Munsiff, by his Judgment dated September 29, 1976 decreed the suit. He recorded tha following findings,