AGARWAL TRADER MADANGANJ AND ANT Vs. CHAND DEVI

JUDGEMENT

(1.) THIS is the second appeal by the defendants-tenants against the judgment and decree dated 13. 2. 2002, whereby learned Additional District Judge, Kishangarh, Ajmer, affirmed the judgment and decree of eviction passed by learned Civil Judge (Jr. Div.) Kishangarh, on 14. 3. 2001. The parties would be referred in this appeal as arrayed in the plaint.

(2.) THE relevant facts in brief are that the plaintiff- respondent No. 1 Smt. Chand Devi filed civil suit for eviction with the averments that suit shop was let out to defendant appellant No. 2 Govind Ram, through his Firm-defendant No. 1, on monthly rent of Rs. 145/ -. All the acts of recovery of rent are being carried out by plaintiff's husband Shri Ghanshyam Das. THE eviction was sought on the grounds of default in payment of rent; sub-letting of the shop to the defendant No. 3 Shri Nand Kishore, who is real brother of defendant-appellant No. 2 Shri Govind Ram and on account of closure of the shop. THE defendants No. 1 to 3 in their written statement having admitted the tenancy, denied all the grounds of eviction with a prayer for fixation of standard rent at the rate of Rs. 80/- p. m.

(3.) ON the point of closure of the business, it was contended that there is no specific plea in the plaint that the tenants have not used the premises for a continuous period of six months immediately preceding the date of the suit, hence the decision of this issue is perverse. Learned counsel also contended that there was no evidence that the suit shop was not used for a continuous period of more than six months before filing the present suit. He placed reliance upon Gauri Lal vs. Gujar Mal through his legal representatives The legal proposition as submitted by learned counsel for the appellants finds support from the judgment delivered in Gauri Lal's case (supra ). Per contra, learned counsel for the landlord respondent contended that both the courts below arrived at concurrent finding that the suit shop was closed for a period of more than two years just before filing the present suit and mere omission in the plaint that the shop remained closed for a period of six months does not make any difference. It was also contended that facts relating to non-user of the premises with or without reasonable cause are within special knowledge of the tenant and it is for the tenant to prove. He placed reliance upon Sant Lal vs. Harbans Singh (3), wherein it was held that it is for the tenant to prove facts relating to non - user of the premises with or without reasonable cause, as such facts are within the special knowledge of the tenant. It was also held in para 14 of this judgment that the pleadings should not be construed very strictly and the Court must look essential justice of the case.