KEWALCHAND Vs. SATYANARAIN

JUDGEMENT

(1.) This is first appeal by Kewalchand and Hastimal against the decree of the Additional District Judge Nagaur dated February 22, 1988 decreeing the suit of the plaintiff-respondent No.1 for arrears of rent amounting to Rs. 12,000/- and ejectment of the defendants from the suit premises and also awarding to the plaintiff damages for use and occupation of the premises at the rate of Rs. 600/- per month.

(2.) Facts leading to the filing of this first appeal are that on September 28, 1983 plaintiff-respondent No. 1 Satyanarain instituted Civil Original Suit No. 19 of 1983 against partnership firm M/s Oswal Metal Industries Nagaur and impleaded Kewalchand and Hastimal appellants as defendants in their capacity as partners of the said firm. It was alleged by the plaintiff that the suit premises were situated on the west of Railway Station, Nagaur and were bounded as described at the foot of para 1 of the plaint. It was alleged that the defendants took these premises on rent with the stipulation that they would pay rent at the monthly rate of Rs. 600/-. The rental amount of one year would be paid in advance and thereafter month by month. The defendants executed a registered Kabuliyat in this respect in favour of the plaintiff. The tenancy commenced from October 23, 1979. There were two godowns in the premises and rest of the land was vacant. It was agreed that the defendants would be entitled to make constructions on the open land and. the construction would be also handed over to the plaintiff when the premises were vacated. It was mentioned that the business of firm Oswal Metal Industries, Nagaur was closed in the year 1981. The defendant removed some girders from the godown also dug pits 4' or 5' deep while removing the poles. Rent was not paid after January 22, 1982 and more than six months rent had fallen in arrears up to the date the suit was filed. The plaintiff also alleged that the defendants had closed their industry and had sublet the premises to M/s Mahendra Metal Industries. The plaintiff claimed for a decree of arrears of rent, damages for use and occupation and for ejectment of the defendants from the suit premises.

(3.) Summonses of the suit were served on Kewal Chand and Hastimal on October 6, 1983 for appearance in Court on October 28, 1982. In the summons both Kewalchand and Hastimal were described as Partners of partnership firm M/s. Oswal Metal Industries, Nagaur. On behalf of both these appellants, Vakalatnama was filed by Shri Navratan Raj Mehta on October 28, 1983 and appearance was to put by the said Advocate on behalf of the appellants. On that date the Additional District Judge was out from headquarters and the case was adjourned to November 19, 1983 for filing of the written statement. On November 19, 1983 the Additional District Judge was on leave and the case was adjourned to December 13,1983 for filing of the written statement, On this date an application under O.6, R.5, C.P.C. was filed on behalf of the appellants stating therein that it was not clear from the plaint whether the partnership firm M/s. Oswal Metal Industries had been impleaded as defendant or not. It was also mentioned that at various places in the plaint the word "defendant" in singular had been used. Clarification was also sought about the date of closure of the business by firm Oswal Metal Industries. Lastly, it was mentioned that Kewalchand appellant No. 1 had retired from partnership on August 24, 1981 and Hastimal appellant No. 2 had retired from the partnership firm on November 25, 1980 and the plaintiff had full knowledge of the same. That made the asking for further and better particulars more essential. It was prayed that the plaintiff be directed to submit further and better particulars. The plaintiff filed reply to this application on January 4, 1984 wherein he mentioned that the partnership firm M/s. Oswal Metal Industries has been impleaded as a defendant. It was also mentioned that wherever the word "defendant" has been used in the plaint, it refers to the appellants. It was also stated that the appellants had given no information to the plaintiff about their retirement from the partnership firm.