CHAMPALAL Vs. JASNATH

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree of the First Appellate Court dated 31.3.2001 by which it has affirmed the judgment and decree of the tiral Court dated 15.7.1996 by which the learned trial Court has passed the decree of eviction of the defendant appellant from the suit premises.

(2.) The facts and circumstances giving rise to this appeal are that plaintiff-respondent filed a suit for eviction of the defendant-appellant on various grounds, including second default in payment of rent, reasonable and bonafide need etc. The defendant-appellant contested the suit denying the averments made in the plaint and in view of the pleadings of the parties, the issues were framed. Thereafter, the parties were permitted to lead evidence. The evidence of the plaintiff-respondent was over, subsequently when the defendant-appellant was asked to lead evidence, inspite of giving several opportunities he could not examine even a single witness and therefore his evidence was closed. Being aggrieved and dissatisfied of the order of closure of evidence, defendant-appellant filed Revision Petition No. 236/95 before this Court which stood dismissed vide order dated 6.4.1995. On the basis of evidence available on record, the trial Court decreed the suit of the plaintiff-respondent only on the ground of second default and other issues were decided against the plaintiff respodnent and in favour of the defendant-appellant. Being aggrieved and dissatisfied, the defendant-appellant filed appeal, wherein the trial Court was directed to deteermine the interim rent under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'The Act, 1950"). While detrmining the interim rent, a finding was also recorded by the trial Court that the rent had been deposited by the defendant-appellant from 1.5.1977 to 21.8.2000 in the trial Court. The First Appellate Court considered the issues and after re-appreciating the evidence, dismissed the appeal only on the ground that though the rent had been deposited under Section 19-A of the Act, 1950 by the defendant-appellant but such deposition was not preceded with either of the pre-requisite conditions provided in the Statute. As the rent could be deposited under Section 19-A of the Act, 1950 only after meeting either of the pre-requisite conditions mentioned in the Statute, deposit of rent under Section 19-A of the Act, 1950 did not tantamount to a legal and valid tender. The finding recorded by the learned trial Corut for depositing the rent was only for the purpsoe of determining the arrears of interim rent and as the defendant-appellant did not ensure compliance of the pre-requisite condition i.e. offering the rent by a legal and valid tender to the landlord. Hence this Second Appeal.

(3.) Before this appeal could be taken up, Shri Nagori learned Counsel appearing for the appellant pressed an application under Oder 41 Rule 27 CPC to permit the appellant to lead additional evidence to show that the pre-requisite conditions had been met by the defendant appellant. At this juncture Shri Maheshwari, learned Counsel appearing for the respondent raised the preliminary objection regarding maintainability of such application in view of the order passed by this Court in Revision Petition No. 236/95 on 6.4.1995, wherein this Court did not interfere with the order of the trial Court, closing the evidence of the defendant-appellant. Shri Maheshwari has submitted that entertaining this application would amount to setting aside the order passed by this Court in Revision Petition or sit in appeal against that order, which is not permissible in law.