CHOIT RAM Vs. RAMDEEN

JUDGEMENT

(1.) THIS second appeal is directed against the decree and judgment dated December 18, 1990, passed by the Additional District Judge No. 2, Jodhpur, by which the appeal filed by the defendant appellant Choit Ram was dismissed.

(2.) PLAINTIFF Ramdeen filed a suit in the Court of the Additional Munsif and Judicial Magistrate No. 1, Jodhpur, for eviction and recovery of arrears of rent with respect to First Floor of a house situated in Jodhpur City near Anand Cinema, on the ground of second default for more than six months in making payment of rent of the house in dispute. It was averred in the plaint that the first floor of the house comprising two rooms, one Saal and one kitchen was given to the defendant on the rent of Rs. 55/ - per month and the tenancy started from 12th of each month and ending on 11th of next month. The defendant tenant had not made payment of the rent of the house since from January 12, 1984 to March 11, 1985. It was further averred that earlier the suit with respect to the present premises was filed against the defendant for eviction on the ground of default in payment of rent, reasonable and bonafide necessity and non user of the suit premises for more than six months. In the earlier suit, the defendant availed the benefit of Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act and, therefore, the suit of the plaintiff, on the ground of default, was dismissed as the defendant deposited the rent under Section 13(4) of the Act as determined by the Court. The Suit of the plaintiff, on the ground of nonuser of the suit premises for more than six months, as well as on the ground of reasonable and bonafide necessity, was also dismissed by the trial court. Distisfied with the dismissal of the suit, the plaintiff filed an appeal but neither any appeal nor any cross -objection was filed by the defendant tenant against the finding of default. In the earlier suit, the defendant deposited the rent only upto January 12, 1984 and did not deposit any rent after that date since 12th January, 1984 to March 11, 1985 and, he, therefore, committed a second default in making payment of rent and, therefore, the plaintiff is entitled to get the decree of eviction against the defendant. The defendant contested the suit and denied the allegations regarding the committal of second default. The case of the defendant was that as the trial Court did not determine the provisional rent as required under Section 13(3) of the Act and, therefore, it was not necessary for the defendant to deposit the amount of rent, but still the defendant deposited the amount of rent if the Court of the Additional Civil Judge No. 1, Jodhpur, by which the earlier suit was decided on February 9, 1984 and the appeal in that case is still pending before the Appellate Court and has not been finally disposed of. His case was, therefore, that as the appeal is a continuation of the suit and the amount of rent was deposited in the earlier suit and, therefore, no second default has been committed by the defendant. Plaintiff Ramdeen, in support of his case, examined himself as W 1 while the defendant Choit Ram examined himself as PW 1 and placed on record the rent receipts Ex. A -1 to Ex. A -8, showing the payment of rent in the Court of the Additional Civil Judge No. 1, Jodhpur. The learned trial Court after trial, by its decree and judgment dated October 25,1986, decreed the suit filed by the plaintiff and passed thedecaee for eviction against the defendant. Dissatisfied with the decree and judgment dated October 25, 1986, passed by the Munsif and Judicial Magistrate, First Class, Jodhpur, the defendant filed an appeal before the District Judge, Jodhpur, which appeal was ultimately decided by the learned Additional District Judge, No. 2 Jodhpur, who, by the decree and judgment dated December 18, 1990, dismissed the appeal filed by the defendant Choit Ram. It is against this decree and judgment dated December 18, 1990, passed by the Additional District Judge No. 2, Jodhpur, that the appellant defendant has filed the present appeal.

(3.) HEARD learned Counsel for the parties.