GAURI SHANKER Vs. KESHAR DEV

JUDGEMENT

(1.) Appellants-Defendants-Tenants (hereinafter referred as "Defendants") have preferred this second appeal under Sec. 100 CPC, assailing judgment and decree dtd. 17/8/1996 in Appeal No.9/1996 (16/1995), passed by Additional District Judge, Jhunjhunu dismissing appeal and affirming the judgment and decree dtd. 21/4/1995 passed by Civil Judge (Lower Division) Chirawa, in Civil Suit No.70/1981 whereby plaintiff's suit for eviction from tenanted shop and recovery of rent has been decreed.

(2.) The facts of case are that rented premises is a shop, which was admittedly let out orally by plaintiff way back on 7/7/1973 at the rent of Rs.35.00 per month. The tenancy was oral. According to plaintiff shop was let out to defendant No.1, who further sublet it to defendant No.2 in the year 1977. Plaintiff alleged that defendant No.1 stopped to pay rent from June,1976 and committed default in payment of rent. The defendant No.2 was in service at BITS Pilani and the shop remained closed for near about three years. Some material alteration was also alleged in rented shop. Plaintiff issued a legal notice on 2/3/1977 asking the defendant to vacate rented shop and to pay due rent and charges of electricity. Finally plaintiff filed eviction suit invoking provisions of Sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter 'the Rent Act') on 19/11/1981.

(3.) Defendant No.1 filed written statement and denied any tenancy with the plaintiff and stated that he was residing in Pilani itself. He also denied for any shop in Jaipur. It was further stated that after leaving the job defendant No.2 obtained the shop in question on rent and started business of cycle parts, repairing, general store, furniture, stationary, and after July 1973 he is doing the business in the shop. He denied the allegation of subletting to defendant No.2. He denied the allegation of material alteration in shop in question. Notice dtd. 2/3/1977 was wrongly sent to defendant No.1, to which he replied that he was not tenant. In additional pleas, he raised the issue of misjoinder of party.