KISHAN RAJ Vs. CHOTH MAL

JUDGEMENT

(1.) THE petitioner/defendant/tenant is aggrieved against the order of the appellate court dated 26.10.2008 whereby the appellate court dismissed the petitioner's application filed under Order 6 Rule 17 CPC seeking permission to amend the written statement.

(2.) BRIEF facts of the case are that the plaintiffs/respondents filed a suit for eviction under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950') in the Court situated in Merta where the said Act was applicable. During pendency of this suit no.21/85 (28/91), a new Act - Rajasthan Rent Control Act, 2001 (for short 'the Act of 2001') was enacted and the said Act came into force with effect from 1.4.2003. In the Act of 2001, there is a provision for repeal of the Act of 1950 under Section 32 and by that provision, a liberty was given to the plaintiff to withdraw the suit within the stipulated period of time to file the suit under the Act of 2001 and it has been provided that in that situation, the plaintiff will be entitled to proceed with the suit under the provisions of the Act of 2001. Under Section 32 itself, it is provided that the suit which was filed under the Act of 1950 and has not been withdrawn under Section 32 for the purpose of filing by taking benefit under Section 32 of the Act of 2001, shall be governed by the Act of 1950.

(3.) THE plaintiffs thereafter filed present suit in the trial court wherein a specific plea was taken by the defendant/petitioner that the subsequent suit filed by the plaintiffs is not maintainable in view of Order 23 Rule 1(4) CPC. On the basis of this plea, the trial court framed issue no.2 in the subsequently filed suit. Ultimately after trial, the trial court decreed the suit of the plaintiffs for eviction of the petitioner vide judgment and decree dated 19.5.2008. It appears that there were some arguments advanced on the question of applicability of the Act of 1950 and the Act of 2001 which have been dealt with by the trial court in paras no.11 and 13 of the said judgment which is under challenge before the first appellate court.