USHA JAIN Vs. TRILOK CHAND JAIN

JUDGEMENT

(1.) This appeal of the plaintiff is directed against the judgment and decree of learned ADJ No.8, Jaipur City, Jaipur dated 8.3.2001 in an eviction matter in respect of private residential house wherein giving the benefit of first default in payment of provisional rent fixed by the learned trial court of Rs.1,000/-, the learned trial court refused to pass the eviction decree. The plaintiff appellant claimed rent at the rate of Rs.1,300/- per month and the provisional rent was fixed by the court at Rs.1,000/-, however, while passing the final judgment on 8.3.2001, the learned trial court directed the defendant tenant to pay the rent at Rs.1,300/- per month after adjustment of provisional rent fixed at Rs.1,000/- per month.

(2.) Mr. M.M. Ranjan, learned counsel for the appellant in the present appeal submitted that the defendant tenant has defaulted in payment of the said rent of Rs.1,300/- fixed by the learned trial court even during the pendency of this appeal and relying on the judgment of Hon'ble the Supreme Court in Shiv Dutt Jadiya v. Ganga Devi, (2002) 3 SCC 189 he submitted that defence of the defendant tenant deserved to be struck out in view of default of rent during the pendency of appeal also. This Court on 30.3.2007 passed a detailed order taking note of the aforesaid Supreme Court judgment and after hearing both the learned counsels and directed the learned counsel for the defendant tenant to file additional affidavit along with relevant evidence to satisfy this Court that whether entire rent said to be in default has been paid by the respondent tenant or not. The matter was kept on 10.4.2007. On 10.4.2007 also since such additional affidavit was not filed this Court struck off the defence of the defendant tenant and the matter was kept on 24.4.2007 for considering as to whether in view of such continuous default, the eviction decree could be passed in the matter.

(3.) On 24.4.2007 none was present on behalf of the respondent tenant and in the interest of justice the case was adjourned for one week and that is how the matter came up before the Court again on 4.5.2007 and the arguments of both the counsels were heard at length. In the meanwhile, the respondent tenant filed an application on 24.4.2007 praying for recalling/ reviewing of the order dated 10.4.2007.