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SMT.RADHA RANI & ORS. v MOHAN LAL - CSA Case No. 263 of 2006  RD-RJ 2848 (22 May 2007)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
Smt. Radha Rani and others. vs.
S.B.CIVIL SECOND APPEAL NO.263/2006
UNDER SECTION 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 29.5.2006
PASSED BY SHRI PANKAJ BHANDARI,
ADDITIONAL DISTRICT JUDGE NO.3,
JODHPUR IN CIVIL APPEAL DECREE
DATE OF JUDGMENT ::: 22.5.2007
HON'BLE MR. PRAKASH TATIA, J.
Mr.HR Soni, for the appellants.
Mr.RK Thanvi, for the respondents.
BY THE COURT:
Heard learned counsel for the parties.
The appellants are aggrieved against the finding recorded by the two courts below : by the trial court vide judgment and decree dated 2.5.2002 and by the appellate court vide judgment and decree dated 29.5.2006. The trial court decreed the suit of the plaintiff against the appellants/tenants on the ground of non-user of the house in dispute by the tenants as well as on the ground of the appellants acquiring suitable residential accommodation. Hence, this second appeal.
Brief facts of the case are that the plaintiff/respondent filed one suit No.759/1980 on 8.12.1980 against one of the defendant Smt. Radha Rani alleging that she alone was his tenant. In that suit, the grounds for eviction were need of the plaintiff for the house in dispute, material alteration alleged to have been made by the defendant in the suit premises and according to the appellant, other grounds were non- user of the house in dispute by the defendant and for acquiring suitable residential accommodation by the defendant and her family members. The said suit of the plaintiff was dismissed by the trial court vide judgment and decree dated 18.4.1995. The plaintiff preferred appeal against the judgment and decree dated 18.4.1995 which was dismissed by the first appellate court on 12.2.1997. In the first appeal, the plaintiff submitted an application under Order 41 Rule 27 CPC and stated that the defendant in the said suit of 1980
(defendant no.1 in the present suit) got married and started living in her inlaws house. It is also stated in the said application that the original tenant defendant no.1's mother, father, sister all started living in another house situated in Ghanchi Colony. The defendants in the present suit namely, Gyaneshwar
Prasad also started living at Udaipur. The plaintiff in the plaint stated that the said application was dismissed by the first appellate court. Ultimately, as stated above, the first appeal was dismissed vide judgment and decree dated 12.2.1997. The appellant preferred second appeal which too was dismissed.
On 4.4.1997, the present suit for eviction of the tenant/defendant of the suit No.759/1980 Smt. Radha
Rani has been filed. In this suit her family members are also impleaded as defendants. It appears that all the defendants other than the defendant no.1 were impleaded in view of the findings given in the earlier suit of the plaintiff, that Smt. Radha Devi alone was not tenant but her family members are also tenants. In the present suit, the plaintiff alleged that the defendants are not residing in the house in dispute since last 4-5 years and the house is lying locked. The plaintiff also disclosed where the defendants are residing. The plaintiff also pleaded that since the house is locked, therefore, no electricity consumption bill is received by the defendants and it has been reported that the house is locked since April, 1994 to
August, 1996. The plaintiff also pleaded that despite there is a finding of the civil court that all the defendants are tenants but the defendants are not members of joint Hindu family and there is no unity of their status in the family. The plaintiff, therefore, sought eviction of the tenants on the ground of non- user of the house in dispute under clause (j) of Sub-
Section (1) of Section 13 of the Rajasthan Premises
(Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950').
The defendants submitted written statement and admitted that the defendant no.1 is residing at her inlaws house after marriage. It is also submitted that since the house is small one, therefore, the defendants no.3 and 5 are not residing in the house in dispute but they use to come to the house in dispute. It is submitted that the defendants no.4 to 6 are residing in the house. It is also stated that the defendant no.2 is also residing in house. It is also submitted that the defendants have not acquired any suitable residential accommodation. The defendants stated that the defendant no.4, who was in service, was transferred to Udaipur in
July, 1995 and in the year 1998, he has been re- transferred to Jodhpur.
It will be worthwhile to mention here that in the trial court, issues were framed as per the plea taken by the plaintiffs and that is about non-user of the house in dispute as well as on the ground of the defendants' acquiring suitable residential accommodation. In view of the above, on the basis of plea taken by the defendants, a specific issue was framed about bar of res judicata.
The trial court decreed the suit of the plaintiff vide judgment and decree dated 2.5.2002. The defendants preferred regular first appeal. In the first appeal, the defendants submitted an application under Order 41
Rule 27 CPC and sought permission to place on record the certified copy of the judgment of the trial court passed in civil original suit no.759/1980 dated 21.4.1992 and copy of appellate judgment dated 18.4.1995 upholding the judgment and decree dated 21.4.1992.
The first appellate court dismissed the application of the appellants and also dismissed the appeal of the appellants.
Hence, this second appeal.
In regular first appeal arising out of the dismissal of the suit No.759/80 were clearly mentioned in the certified copy of the order then the first appellate court should not have dismissed the appellant's application under Order 41 Rule 27,C.P.C.
It is also submitted that the two courts below seriously erred in law in holding that the house in dispute has not been used for last six months on the ground that the appellants did not receive the electricity bills and on the basis of the report made by the employee of the Electricity Board that the house remained closed for particular period. It is also submitted that for some months if the electricity consumption has been not recorded in the meter then that fact cannot prove appellants' not residing in the house in dispute as the appellans produced the telephone bills which shows that telephone was in fact used by the appellants.
I considered the submissions of the learned counsel for the parties and perused the record of the trial court as well as the appellate court and considered the reasons given by the two courts below.
The appellate court though mentioned that application under Order 41 Rule 27, C.P.C. is liable to be dismissed because the plaintiff has not produced the copies of the plaint, written statement and issues of the earlier filed suit but that has been read out of context. The appellate court clearly observed that facts pleaded in the suit of 1980 about of non-user of the suit property cannot be relevant in the present suit which was filed in the year 1997. At this place, it will be worthwhile to mention here that even according to the appellants themselves, the plaintiff- respondent's application under Order 41 Rule 27,C.P.C.
Was dismissed by the first appellate court in the appeal which was preferred to challenge the judgment and decree passed in the Suit No.759/80 then in fact the plaintiffs were not allowed to plead and prove the grounds of eviction of the tenant by the appellate court, set up in the application under Order 41 Rule 27,C.P.C. Be it as it may be, it appears from the reasons given by the two courts below that both the courts below applied mind to all the facts and thereafter reached to the conclusion that despite earlier round of litigation, the present suit of the plaintiff cannot be dismissed.
At this juncture, it will be relevant to mention here that from the pleading and evidence which have been read by the counsel for the appellants, this Court is also of the view that the two courts below properly appreciated the evidence of the parties and thereafter decreed the suit of the plaintiff. It is not a case of misreading of pleading or evidence or non-consideration of evidence of any party. Therefore, the appeal of the appellant deserves to be dismissed.
At this juncture, learned counsel for the appellant prayed that sufficient time may be given to the appellants to vacate the suit premises.
Learned counsel for the respondent has serious objection to the grant of time to the appellants.
I considered this prayer of learned counsel for the appellants and looking to the facts of the case, this Court is of the view that the appellants be granted time upto 31.5.2008 to vacate the suit premises.
Therefore, it is ordered that in case, the appellants furnish a written undertaking before the trial court within a period of three months from today that they shall hand over the vacant possession to the landlord by or before 31.5.2008 and shall not part with the possession or sublet the suit premises during this period and shall pay all the arrears of rent and decretal amount, if due, and shall also pay the rent upto 31.5.2008 in advance within a period of three months from today before the trial court or directly to the landlord, the decree under challenge shall not be executed till 1.6.2008.
In case of non-compliance of the order or default in payment of amount mentioned above, the decree shall become executable forthwith.
With the aforesaid concession, this appeal is dismissed.
(PRAKASH TATIA), J.
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