STATE OF RAJASTHAN Vs. SHRI KANTI LA]

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by learned Civil Judge,udaipur in case no 62/90 dt. 15. 4 91 whereby he has confirmed the judgment and decree of learned Munsif and Judicial Magistrate, Udaipur dt. 20. 6. 90. in civil suit no. 285/91.

(2.) BRIEFLY stated the facts of this case are that the defendant appellant is in possession of the disputed premises as a tenant since long. It was alleged that the respondent had purchased a part of Shivrati House, (described in para 1 of the plaint) by a registered sale-deed from one Bhim Singh. A notice dt. 24. 9. 1980 was issued informing the Education Department of the fact that he has become the owner by purchasing the disputed house for his own use. thereafter on 16. 10. 1980 another notice that due rent from 6. 9. 1980 to 6. 4. 1981 is not paid and to evict the house within two months as the house is required for his own use but it was of no avail. Thus, the plaintiff respondent filed a suit on the ground of default as rent has not been paid for more than six months and in case the suit premises is not vacated be will suffer greater hardship as house in which be is residing is only of one room with kitchen and it is not sufficient. On the pleadings of the parties, the learned trial court framed as many as 6 issues. The plaintiff examined P. W. 1 Kantilal and P. W. 2 Keshulal. The defendant has examined D. W. 1 Uma Chaturvedi in support of its case. The learned trial court after bearing both the parties and after considering material on record decreed the suit on the grounds of defaut and personal and bonafide necessity. Aggrieved by this the defendant preferred an appeal but the same was dismissed on 15-4-91. However, 3 month's time was granted to vacate the premises as girls' school was ruunig. Hence, the Department has filed this second appeal.

(3.) IT is no doubt true that it is incumbent upon the court to consider the point of partial eviction while passing a decree on the ground of reasonable and bonafide necessity. In the instant case D W. 1 Uma Chaturvedi has not been able to show when the rent from 6-9-1980 to 6-4-1981 was paid and the learned trial court on the basis of evidence while deciding issue no 4 has held that the,appallant has not deposited rent from 6-9 1980 to 6-4-1981. IT has also come on record that rent was not deposited upto 20-4 82. The rent was determined on 20-8-81. The rent for the month of August, 1982 was deposited only on 15-10-1982, whereby he committed second default. The defence of the appellant was struck off on 20-9-86. Admittedly, the Department has not filed any revision u/s. 115 CPC or appeal u/s. 22 of the Act, against the order of striking off defence. As such it has become final. This Court in Jnderchand Vs. Smt. Lilawati (supra) after relying on Modula India Vs. Kamakshya Singh (5) has held that once defence is struck off, the defendant will not be entitled to lead any evidence on his own. The learned trial court after considering material on record passed a decree on the ground of default, which has been affirmed by the learned Appellate Court and has also not been challenged before me. Under the circumstances, the argument of remanding of case for considering partial eviction has no substance as in the instant case Sec. 14 (2) of the Act is not applicable. In this case suit is not only based on the ground of reasonable and bonafide necessity but also on the ground, other than 13 (1) (h)of the Act i. e. default. Once a decree on the ground of default has been passed, in such a case the tenant will not be able to substantiate his case as he has lost his right to lead other evidence. Moreso, the defence of the tenant has been struck off and a decree on the ground of default has been passed. IT would a futile exercise as Sec. 14 (2) will not come into play. Keeping in view, the Legislature in its wisdom made S. 14 (2) of the Act applicable to the cases covered u/s. 14 (l) (h) of the Act only i. e. of reasonable and bonafide necessity. Therefore, as discussed above, in my opinion, in this case it is not necessary to consider the case of partial eviction as a decree on the ground of default has been passed. Mr. Jasmatia, learned Addl. Advocate General has not been able to show otherwise. As such no substantial question of law is involved in this case and no interference is called for.