MOHINI DEVI Vs. OSWAL SINGH SABHA

JUDGEMENT

(1.) These two appeals have been filed by the defendant-tenants aggrieved by the judgment and eviction decree of the first appellate court of learned Additional District Judge No.l Jodhpur dated 29/10/2004, whereby, the learned first appellate court granted decree of eviction on the ground of second default in payment of rent due by the defendant-tenants. The trial court had, however, rejected the suit filed by the plaintiff-respondent by the judgment and decree dated 7/10/2003. The defendant-tenants are mother and son, the legal representatives of Laxmi Narain and the suit premises are 'bara' (Nohra) situated inside Siwanchi Gate, Jodhpur. Since common facts and points are involved in these appeals, the same are being decided by common judgment.

(2.) The earlier suit filed by the plaintiff, namely suit No.353/89 & suit no.462/89 on the ground of default was dismissed, giving benefit of first default to the defendant-tenants on 11/12/1992, therefore, the present suit was filed by the plaintiff-respondent on the ground of second default on account of alleged non-payment of rent by the defendant-tenants for the period 1-4-93 to 30-4-95 for 25 months. In the suit against Shyamlal, the plaintiff also stated that in the previous suit, a sum of Rs.1200/- was not paid to the plaintiff on account of rejection of application under Section 19 A of the Act and, therefore, that sum also was due besides second default for the period from 1/1/1994 to 30/4/1995. The trial court, however, rejected both the suits of plaintiff-respondent on the ground that the plaintiff had failed to prove the second default inasmuch as the rent was paid in advance by the defendants for various periods vide Ex.A/1 to A/10 produced by the defendants, the details of which were given by the learned trial court in the impugned order.

(3.) The first appellate court, however, found that in the second suit filed by the plaintiff-appellant, the trial court had determined the provisional rent as suit was filed on the ground of default in payment of rent under Section 13(3) of the Rent Control Act, 1950 vide order dated 29/9/2000 determining the arrears of rent including interest for delay in deposit of rent and since the said interest part was deposited in the Bank account of the plaintiff on 9/1/2001 vide Ex.A/11 produced by the defendants with delay beyond the period fixed in the order dated 29-9-2000 determining the provisional rent due and the said delay could not be condoned by the court in view of the decision of Hon'ble Supreme Court in case of Nasiruddin and others vs. Sita Ram Agrawal,2003 DNJ(SC) 180, therefore, the defendant-tenants were liable to be evicted from the suit premises and consequently, the appellate court passed the impugned eviction decree on 29/10/2004 and being aggrieved by which the defendants have preferred these present Second Appeals before this Court, which after issuance of notice to the respondent-plaintiff on 13/7/2006 have come up for admission before this Court after about two years. The appeals were contested by the plaintiff-respondent and both the counsels made lengthy arguments even at the admission stage and therefore, these appeals are being finally decided at the admission stage.