RAMPAL Vs. MANAGER SASTA SAHITYA PRESS LTD

JUDGEMENT

(1.) THIS civil miscellaneous appeal by the plaintiff is directed against the appellate judgment of the District Judge, Ajmer, dated 15-1-72 whereby the judgment and decree of the additional Civil Judge, decreeing suit for eviction and arrears of rent was set aside and the case was remanded to the trial court for fresh decision in accordance with law after taking defendants' evidence.

(2.) THE facts relevant for the purpose of deciding this appeal are as follows: Plaintiff Rampal and his two brothers are the owners of the property situate on Katchery Road, Ajmer and the Manager, Sasta Sahitya Press Ltd. and the Managing Director, Hind Sahitya Ltd. , hereinafter called as defendants Nos. 1 & 2 respectively, are the tenants of the said property. THE monthly rent of the property is Rs. 200/ -. THE tenancy is monthly in accordance with the Gregorian calendar. THE present suit was instituted on 13 4-67 for the recovery of the arrears of rent amounting to Rs. 4300/-and for eviction inter alia on the ground that the defendants neither paid nor tendered the amount of rent due for more than six months. Summonses for settlement of issues were sent for service on the defendants for 4-7-67. On the latter date both the defendants were deemed to be served. Defendant No. 1 was present but defendant No. 2 did not put in appearance. THE court ordered to proceed ex parte against defendant No. 2 and granted adjournment to defendant No. 1 to file written statement. THE case was adjourned on 20-7 67 and 27-7-67 for filing written statement by defendant No. 1. Written statement was filed by defendant No. 1 on 7-8-67 and the case was adjourned to 8 9 67 for framing of issues. On 8-9-67 an application was moved by the plaintiff under O. 6, R. 17 and sec. 151 CPC for amendment of the plaint as it was thought that the description of defendant No. 2 in the title of the plaint was wrongly made. In fact there was no mistake in the description of the defendant No. 2 in the title of the plaint but the description of defendant No. 2 in the summons issued to defendant No. 2 for 4-7 67 was incorrect. THE court therefore ordered issue of fresh summons for 18-10-67 in the name of defendant No. 2 for settlement of issues. On the same day, that is, 8-9 67, defendant No. 1 moved an application under sec. 18 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter called the Act, praying that two months time be allowed to deposit the amount of arrears of rent. THE court fixed 18-10-67 Tor hearing of the arguments on this application and further ordered that a reply to the application be filed by the plaintiff in the meanwhile if they so desire. Defendant No. 2 was served for the heating dated 9-12-67. On the latter date, defendant No. 2 was absent, but Mr. R. K. Bhargava, the learned advocate for the defendant No. 1, undertook to file power on behalf of the defendant No. 2. THE case was then adjourned to 16-1-68 for filing written statement and power on behalf of defendant No. 2 and also for arguments on the application dated 8-9-67 made under sec. 13 (4) of the Act. On 16-1-68 Mr. R. K. Bhargava neither filed power nor written statement on behalf of defendant No. 2. He, however, stated that it was not necessary to file power on behalf of defendant No. 2 as the vakalatnama signed by Mr. Pavan Pathak on behalf of defendant No. 1 had already been filed by him and Mr. Pavan Pathak was also the Managing Director, Hindi Sahitya Ltd. , that is, defendant No. 2. Mr. Bhargava also adopted on behalf of defendant No. 2, the written statement filed by defendant No. 1. THE case then came up before the trial court on 24-5 68 on which date the arguments on the application dated 8-9-67 under sec. 13 (4) of the Act were heard and defendant No. 1 was directed to deposit arrears of rent together with interest by 10-7 68 and future rent by 15th of every month. On that very day, the court framed issues and adjourned the case to 13-8-63 for the plaintiff' evidence. On 10-7-68 Mr. Bhargava moved an application for further extension of time to enable defendant No. 1 to deposit the arrears of rent. THE court extended the time upto 27-7-68. A sum of Rs. 9250/- as arrears of rent was deposited by defendant No. l on 20-7 63. THE case lingered on for plaintiffs' evidence upto 20. 1. 70 on which date the plaintiffs closed their evidence. THE case was then fixed for defendants'evidence. Before any witness was examined on behalf of the defendants, an application was presented by the plaintiffs on 7-3-70 praying that the defence of the defendants be struck out under sec. 13 (6) of the Act as none of the defendants had deposited or paid the arrears of rent on the first day of hearing in accordance with the provisions of sec. 13 (4) of the Act. This application was strenuously contested on behalf of the defendants. THE main argument advanced on behalf of the defendants before the trial court was that the summons for the settlement of issues was served on defendant No. 2 for the hearing dated 19-12-67 and since an application under sec. 13 (4) of the Act had already been made prior to that date by defendant No. 1 on 8-9-67, that application should be deemed to have been made by defendant No. 2. This argument did not find favour with the trial court which by its order dated 21-4-70 accepted the application under sec. 13 (6) of the Act and ordered that the defence of the defendant No. 1 against eviction be struck out. THE learned trial Judge further held that defendant No. 2 did not appear despite service of summons and therefore he will be deemed to be ex parte. In this connection, the learned trial Judge observed as follows : "it appears that defendant No. 2 has not appeared till now despite sufficient service of summons. THE summons for 19-12-67 were returned refused. Shri R. K. Bhargava undertook to file power for the defendant No. 2. He did not do so. His statement that Mr. Pavan Pathak is the defendant No. 2 also canno possibly bind defendant No. 2 as that statement was made by a counsel representing the other defendant. Further Mr. Pavan Pathak had signed the power as Manager, Sasta Sahitya Press, and not as Managing Director, Hind Sahitya Ltd. THEse two limited companies are different identities and an officer of one cannot bind the other concern even if he is an officer of other concern unless he acts in the latter capacity. In any case, defendant No. 2 is not appearing in the case. Since he has been served, he will be deemed to be ex parte. " THE trial court thereafter proceeded with the hearing of the suit and ultimately decreed the plaintiffs' suit for eviction and arrears of rent. THE defendants filed an appeal before the learned District Judge, Ajmer, who held that no question of proceeding ex parte against defendant No. could arise as he was represented by a counsel. It was further held that defendant No. 2 could take advantage of the application dated 8-9-67 made by defendant No. 1 and that that application should be deemed to have been made by defendant No. 2. It was further held that since the application dated 8-9-67 was made before the first day of hearing and the amount due as arrears of rent was deposited within the time fixed by the trial court, there was no warrant for striking out the defence against eviction under sec. 13 (6) of the Act. THE appellate court consequently allowed the appeal, set aside the judgment and decree passed by trial court as also the order dated 21-4-70 striking out the defence and remanded the case to the trial court with the direction that the defendants' evidence be taken and the case be decided afresh in accordance with law. It is against this order that the present appeal has been filed by the plaintiffs.