NEMI CHAND Vs. CHHAGAR

JUDGEMENT

(1.) THIS appeal has been filed against the order passed by the learned District Judge, Churu dated September 17, 1982 allowing the appeal preferred by the plaintiff against the rejection of his plaint by the Munsif, Churu.

(2.) THE plaintiff filed a suit for ejectment and for recovery of arrears of rent against the defendant-tenant. It was alleged in the plaint that the premises were let out to the defendant-tenant on March 26, 1977 for a period of 11 months and thereafter the tenancy was renewed on March 28, 1978 and March 24, 1979 and the rent of the premises agreed to between the parties was Rs. 120/- per month. The defendant deposited the arrears of rent claimed by the plaintiff and filed an application on October 15, 1980 stating that the suit was not maintainable because of the provisions of sub-section (3) of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). The defendant's case that the premises were let out on March 24, 1979 to the defendant and the suit for eviction was filed on May 12, 1980 an as the premises in dispute were let out for commercial and business purposes, the suit filed by the plaintiff was not maintainable having filed before the expiry of five years. A reply was filed to this application by the plaintiff stating that the shop was originally let out to the defendant in February, 1975 and as such five years have elapsed since the tenancy of the defendant initially began. The trial Court should have directed the defendant-tenant to file his written-statement and an issue should have been framed in respect of his question as to when the tenancy of the defendant initially began and whether the suit was not maintainable because of the provisions of Section 14(3) of the Act. Instead of doing so, the trial Court proceeded to decide the suit merely on the basis of the application of the defendant dated October 15, 1980 and the affidavits and documents filed by the parties and held that the affidavits filed by the plaintiff were false and could not be believed. Although the plaintiff raised an objection before the trial Court that the defendant should be directed to file the written-statement and that the disposal of the suit on the basis of the application dated October 15, 1980 was premature, yet the trial Court proceeded to hold that the plaintiff's suit was not maintainable. Not only that the trial Court also directed that notice be issued to the plaintiff and Gomaram, who had filed affidavits on October 30, 1980, to show-cause why they should not be prosecuted under Section 193 I.P.C.

(3.) THE application for amendment of the plaint filed by the plaintiff on October 30, 1980 ought to have been disposed of first by the trial Court before he proceeded to reject the plaint by his order dated October 31, 1980. When there was an apparent conflict between the respective stands taken by the two parties, about the date of initial tenancy, the proper course to adopt, in such circumstances was to ask the defendant to file his written-statement and frame a preliminary issue about the question of initial starting of the tenancy of the defendant, which was essentially a question of fact. Both parties then should have been allowed to produce such evidence, both documentary as well as oral, relating to the preliminary issue, as they might have desired. Thereafter, it should have proceeded to decide the issue on the basis of the material which may have been produced by both the parties.