SHAMBHU DAYAL Vs. ADDITIONAL DISTRICT JUDGE NO. 5

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India is directed against the order dtd. 9/3/2004 passed by the learned Additional District Judge No.5, Kota (for brevity "the learned Appellate Court") whereby, while dismissing the Civil Miscellaneous Appeal No.70/2003 preferred by the petitioners/defendants/tenants (for short "the defendants"), the order dtd. 10/5/2003 passed by the learned Additional Civil Judge (Junior Division) No.1 (South), Kota (hereinafter referred to as "the learned trial Court") in Case No.257/2000 striking off the defence, has been affirmed.

(2.) The relevant facts in brief are that Shri Kanhaiya Lal filed a suit for eviction against Shri Anandi Lal. The learned trial Court, vide its order dtd. 20/8/1990, determined the provisional rent @ of Rs.300.00 per month. Thereafter, both, the plaintiff as well as the defendant, expired and their legal representatives were brought on record. On account of death of the plaintiff, his wife Smt. Mohani Bai and his son Shri Brijnandan-the respondent No.3 were brought on record. The respondent No.3 filed an application under Sec. 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for brevity "the Act of 1950") alleging that since, the defendants have not paid the provisional rent since April, 2000, their defence be struck off. The defendants in their reply to the application submitted that since, the bank had informed them that number of joint bank account of Smt. Mohani Bai and Shri Brijnandan was 22025, the rent was deposited in that account and they came to know of the separate bank account of the respondent No.3 only on 2/9/2002 thereafter, the provisional rent for the month of September, 2002 was deposited in his separate bank account. It was, therefore, submitted that the error, if any, was bonafide and needed to be condoned.

(3.) The learned trial Court, vide its order dtd. 10/5/2003, while allowing the application filed by the respondent No.3, struck off the defence of the defendants which was unsucessfully challenged by them by way of an appeal which came to be dismissed by the learned Appellate Court vide order impugned dtd. 9/3/2004.