SILVIYA Vs. HARRIYAT

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The defendant-appellant has preferred this Civil Second Appeal under Sec. 100 of the Code of Civil Procedure against the impugned judgment 1 and decree dated 28.2.2011 passed by the Additional District Judge No. 1, Ajmer in Civil Regular Appeal No. 50/2009 whereby the learned appellate Court while allowing the appeal filed by the plaintiff-respondent set aside and reversed the judgment and decree dated 12.8.2009 passed by the trial Court i.e. Additional Civil Judge (Junior Division) No. 1, Ajmer in Civil Suit No. 111/2008 and as, a consequence thereof decreed the suit for eviction filed by the plaintiff-respondent.

(3.) Brief relevant facts for the disposal of this appeal are that plaintiff-respondent filed a suit for eviction and for recovery of arrears of rent against the defendant appellant with the averment that the appellant has neither paid nor tender the rent for a period of 34 months i.e. from Jan., 1999 to Oct., 2001 and, therefore, she has committed default in payment of rent for a period of more than six months and is liable to be evicted from the tenanted premises under Clause (a) of sub-section (1) of Sec. 13 of the Rajasthan Premises (Rent and Eviction Control) Act, 1950 (hereinafter referred to as "the Act"). It was prayed that a decree for eviction from the tenanted premises and for recovery of arrears of rent may be passed in favour of the respondent and against the appellant. The appellant filed written statement and it was averred that the respondent receives rent at her own convenience as and when she comes to Ajmer and some times the appellant sends the rent by money order to her. It was further averred that rent amounting to Rs.500.00 for the period of Jan. to May, 1999 was sent by money order on 7.6.1999, but the respondent refused to accept the money order and it was returned back. It was further submitted that thereafter the respondent did not come to obtain rent and, therefore, the alleged rent could not be paid. It was prayed by the appellant that she has committed no default in payment of rent and, therefore, she is not liable to be evicted from the tenanted premises. On the basis of pleadings of the parties necessary issues were framed. Vide order dated 4.7.2003 trial Court determined provisional rent under Sec. 13(3) of the Act and it was ordered that appellant would pay the arrears of rent within 15 days and shall also continue to pay monthly rent within 15 days of each succeeding month. It was also ordered that respondent may provide her Bank account to the appellant and if she fails to do so, the appellant would have liberty to deposit the rent in the court. On 21.7.2003, the appellant filed an application for extension of time to deposit the arrears of rent in compliance of order dated 4.7.2003. The learned trial Court after hearing both the parties allowed that application and vide order dated 26.7.2003 period upto 18.8.2003 was granted to the appellant to pay/deposit the arrears of rent. Evidence of both the parties was recorded. An application was filed by the respondent on 17.11.2008 with the averment that in compliance of order dated 4.7.2003 the appellant has failed to deposit the monthly rent during the pendency of suit and as a consequence of that her defence is liable to be struck out. Reply to the application was filed by the appellant on 26.3.2009. Learned trial Court after hearing both the parties vide judgment and decree dated 12.8.2009 dismissed the suit filed by the respondent. Under issue No. 1 it was held by the Court that it is prima facie proved that the appellant has paid arrears of rent as determined by the Court vide order dated 4.7.2003. So far as application dated 27.11.2008 is concerned, it was held that although the appellant has failed to show that she has paid monthly rent during the pendency of the suit within the prescribed period in compliance of order dated 4.7.2003 but as the evidence of both the parties has already been recorded and the application was filed at the fag end of the case, it would be of no use to strike out the defence of the appellant. It was directed that the appellant may pay the remaining rent to the respondent in accordance with law. As a consequence of the findings arrived at by the trial Court, the suit was dismissed. Feeling aggrieved, the plaintiff-respondent filed appeal under Sec. 96 of Code of Civil Procedure and the same was allowed by the Appellate Court vide impugned judgment and decree dated 28.2.2011. It was found by the appellate Court that the appellant has failed to 1 show that in compliance of the order dated 4.7.2003 she deposited/paid monthly rent within the prescribed period during pendency of the suit. It was also found that from the postal receipt dated 18.2.2000 filed by the respondent in the appeal at the most it can be said that rent from 1.7.2005 to 28.2.2006 for a period of more than four years was paid at a time. It was held by the Appellate Court that as the appellant did not pay monthly rent within the prescribed period of 15 days, she is not entitled to get benefit of Sec. 13(6) of the Act and is liable to be evicted from the tenanted premises. On the basis of the findings arrived, at the Appellate Court set aside and reversed the decree passed by the trial Court and the suit was decreed. Dissatisfied with the judgment and decree of the first appellate Court, now tenant-appellant is before this Court by way of this Civil Second Appeal.