KESARI MAL Vs. BHAWANI SINGH

JUDGEMENT

(1.) HEARD learned counsel for the parties. At the request of learned counsel for both the parties, this appeal is heard finally.

(2.) THE brief facts of the case are that the plaintiff- respondent filed the suit for eviction against the defendant- tenant on the ground that the suit premises was let out by the plaintiff to defendant on 1. 4. 1959. THE defendant-tenant committed default in payment of rent, therefore, plaintiff filed the suit No. 154/80 wherein the defendant was declared defaulter in payment of rent by judgment and decree dated 13. 1. 1984 but in view of the relevant provision, the suit of the plaintiff was dismissed after giving benefit of first default to the tenant. That judgment is final. It is alleged by the plaintiff that defendant-tenant paid rent up to March, 1985 but thereafter he did not pay any rent of the premises. Ultimately, the plaintiff filed the present suit seeking decree for eviction as well as decree for arrears of rent on the ground of second default committed by the defendant-tenant. THE plaintiff claimed that defendant has not paid rent for the seven years.

(3.) IN view of the decision of the Hon'ble Supreme Court even if the order dated 7. 5. 1985 would not have been passed on the application of the defendant in earlier appeal still the appellant-tenant was entitled for the benefit of his deposit of rent in the court. Apart from it, it is clear from the order dated 7. 5. 1985 that the first appellate court in impugned judgment wrongly interpreted the order dated 7. 5. 1985. The order dated 7. 5. 1985 is clear permission to the defendant to deposit the rent in trial court which certainly means the trial court which concluded the trial of the suit against which the appeal was preferred and order dated 7. 5. 1985 was passed. Therefore on facts also, the first appellate court committed grave error of law resulting into reversal of the judgment and decree of the trial court.