GANGA RAM Vs. KANTI LAL

JUDGEMENT

(1.) THIS miscellaneous appeal has been filed against the order of the learned Additional District Judge No. 1, Udaipur dated October 25,1993 by which he has allowed the appeal and set aside the judgment of the learned Additional Civil Judge No. 3, Udaipur dated November 9, 1989, decreeing the suit for arrears of rent @ Rs. 165/- per month with effect from October 15,1975 with interest @ 6% p. a. and directing the adjustment of the amounts deposited in the court and the amount of Rs. 16,439. 05 spent in construction by the defendant-appellants.

(2.) THE facts of the case giving rise to this appeal may be summarised thus. On October 4, 1977, the plaintiff-respondent filed a suit for the recovery of arrears of rent and ejectment against the defendant in respect of the suit shop situated in the town of Salumbar (Udaipur) with the averments, in short, that the suit shop is in possession and tenancy of the defendants on monthly rent of Rs 265/-, they have not paid rent from October 15, 1975, their tenancy has been terminated by means of a registered notice of ejectment and the Rajasthan Premises (Control of Rent and Eviction) Act,1950 (hereinafter called the 'act') is not applicable. In their joint written statement, the defendants admit that suit shop is in their possession and tenancy and notice of ejectment has been received by the defendant No. 2 Ganga Ram. THEy denied that the agreed rent was @ Rs. 265/- per month but say that it was @ Rs. 165/- per month only. THEy have further averred that it was agreed in between the parties that the rooms would be constructed on the open land annexed to the suit shop on its back side, amount required in construction would be spent by the defendants and would be adjusted towards the rent and accordingly rooms were constructed by the defendants and rent was not paid. After the receipt of the notice, demand was raised for the balance of the amount spent in construction after adjusting towards the rent acctued so far. In his replication, the plaintiff has averred that amount was spent by him for raising construction behind the suit shop and it was agreed in between the parties that the rent would be payable at the enhanced rate of Rs. 265/- per month w. e. f. October 15, 1975. It was never agreed that the construction would be raised by the defendants and the amount spent would be adjusted towards rent.

(3.) IN reply, it has been contended by the learned counsel for the plaintiff-respondent that the learned appellate court has rightly allowed the application for the amendment of the plaint as the need of the suit premises has arisen in the year 1992 and to avoid multiplicity of suit and technicalities. He placed reliance on Raj. Narayan V. INdira Gandhi, He also contended that the findings of the trial court on the issues No. 1 and 3 were perverse and they should have been set aside. He contended that it is the case of the defendant himself that the rent was earlier enhanced from Rs. 100/- to Rs. 133/- when adjacent smaller shop was also let out to him by the plaintiff, it seemed highly improbable that rent was not enhanced when sufficient additional accommodation after construction was provided particularly when the Act was not applicable in Salumbar. He lastly contended that the trial court and appellate court did not at all consider as to why the plaintiff-respondent would have agreed for the adjustment of the entire amount spent in construction towards the rent without any gain to him in any way and it is highly improbable that the rent was to remain the same i. e. Rs. 165/- even after the adjustment of Rs. 16,439. 05.