NARESH KUMAR Vs. PYAR CHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Addl. District Judge, Bhilwara dated 16. 5. 1981 whereby the learned first appellate court has held that the defendant-respondent Pyar Chand has not committed any second default and so, he cannot be evicted from the suit-premises.

(2.) IN this case, the learned trial court i. e. learned Munsif & Judicial Magistrate, Bhilwara vide his judgement dated 6. 1. 1981 has held that the defendant has already taken the benefit of s. 13 (4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short 'the Act') and, therefore, he being a second defaulter, he is liable to be evicted from the suit premises.

(3.) ABOUT this plea, Issue No. 2 was framed. It has been contended by Mr. Maheshwari that the plaintiff-appellant gave a notice to the defendant that he has committed default in payment of rent upto 1. 8. 1978 on 10. 8. 1978. A reply to this notice has also been sent to the plaintiff by the defendant on 28. 8. 1978, in which, it has been stated that the tenant-defendant-respondent has tried to pay the rent number of times to the plaintiff-appellant but he has not accepted the rent intentionally because he wants to harass the defendant-tenant. He has further stated that the matter went to the extent that initially the rent was accepted but it was returned after 2-3 days and thereafter, the rent was deposited in the court. Application Ex. A. 2 dated 14. 4. 1977 was filed by Shri P. L. Ajmera, Advocate and this application pertains to the deposit of rent under s. 19-A of the Act regarding rent for the months of May, June a. 07. 1977. Application Ex. A. l dated 27. 5. 1978 has also been filed by Shri P. L. Ajmera, Advocate under s. 19-A of the Act for depositing the rent for the months of January 1978 to June 1978. In para 3 of this application, it has also been stated that although the defendant were ready to pay the rent but the plaintiffs in order to increase the rent were not ready to accept the rent and therefore, rent for these six months may be allowed to be deposited in the Court. It has not been mentioned in this application that the rent for two months was paid to (he plaintiff and it was accepted by him and after about 2-3 days, it was returned back to him. It has also not been mentioned in this application that at whose behest, rent of two months was returned back to him. This application is prior to the filing of the reply to the notice sent by the plaintiff before filing of this suit. This reply to the notice was sent on 27. 8. 1978 whereas this application is dated 27. 5. 1978. Be that as it may, when plaintiff Suresh Chandra entered in the witness box as P. W. I, it was suggested to him in his cross-examination that the rent for the months of February and March 1978 was paid to him. He has denied this fact and has stated that no such rent was ever paid to him. Now, when defendant Pyarchand entered in the witness box, he has stated that the rent for the months of January a. 02. 1978 was paid to the plaintiff and it was kept by him for 4 days and thereafter, plaintiff Naresh Chandra came and returned back that amount of rent and told him that they will not keep the rent with them and will get the shop vacated from him but when he was cross-examined, he- has changed his version and has stated that he has paid the rent to plaintiff Suresh Chandra and plaintiff Suresh Chandra alone came to him and returned back the amount of rent for two months to him. Thus, the statement of defendant Pyarchand in his cross-examination is contradictory to the statement given in his examination in-chief.