PHOOL CHAND Vs. GOPAL KRISHAN

JUDGEMENT

(1.) HEARD the learned counsels for the parties.

(2.) THIS second appeal of the defendant - tenant is directed against the judgment of the first appellate court dated 21.10.2008 whereby the first appellate court allowed the appeal of the plaintiff - landlord which was filed by the plaintiff against the judgment of the learned trial Court dated 23.1.2004 refusing the decree of eviction of the suit premises on the ground of first default under Section 13(1)(a) of the Act.

(3.) MR . R.S. Chaudhary, learned counsel appearing for the appellant - defendant relying upon the decision of the Hon'ble Supreme Court in the case of Ram Niwas v. Malik Mahboob Ali, reported in 1991(2) RCR(Rent) 496 : AIR 1991 SC 1088 submitted that since the earlier suit of the plaintiff was dismissed for non-prosecution, therefore, the default in the present suit was only first default and therefore, the first appellate Court was not justified in passing eviction decree treating the same as second default. He relied upon para 10 of the judgment, which is reproduced hereunder: