IMPORTANT POINT
A decree for eviction based on default in rent payment can be granted without considering partial eviction if the tenant's defense has been struck out due to non-compliance with statutory provisions.

JUDGMENT :

NUPUR BHATI, J.

1. The instant appeal has been filed by the Appellants/Plaintiffs under Order 43 Rule 1(u), CPC, 1908 against the order dated 13.09.2006 passed by learned Additional District Judge, Bhinmal in Civil Regular First Appeal No. 06/2001, whereby the judgment & decree dated 09.04.2001, passed by Civil Judge, Bhinmal in Civil Original Suit No. 113/1993, was set aside and remanded back to the learned trial court with direction to frame additional issue with respect to the partial eviction of the suit shop and thereafter, conduct rehearing on this issue after recording evidence of both the parties in this behalf and then pass judgment in accordance with the law.

2. Briefly stated, the facts germane to the case are that the suit shop was given on rent to Late Devi Lal (Original Defendant) on 10.07.1979 on a monthly rent of Rs. 411/-. As no rent was paid by the respondents/defendants after 11.11.1979, the appellants/plaintiffs vide registered notice dated 02.06.1980 terminated the tenancy of respondents/defendants and also demanded arrears of rent. However, the sole defendant-Devi Lal neither tendered the rent nor handed over the shop to the appellants/plaintiffs. Thus, the Appellant/Plaintiffs filed the Civil Original Suit No. 113/1993 for eviction and arrears of rent against the Respondents/Defendants in the court of Civil Judge, Bhinmal (hereinafter referred to as ‘the trial Court’) inter-alia on the ground of default in payment of rent under Section 13(1)(a) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as “the Act”). The learned trial court vide order dated 25.04.1995 determined provisional rent. However, as the same was not paid by the respondents/defendants, the learned trial court vide order dated 29.01.1997 struck out the defence against eviction on an application filed by appellants/plaintiffs under Section 13(5) of the Act. The respondents/defendants preferred an appeal against the order dated 29.01.1997 before Learned Additional District Judge, Jalore (hereinafter referred to as “ADJ, Jalore”). However, the same was dismissed by the learned ADJ, Jalore vide order dated 30.09.1999. Thereafter, a revision petition was preferred by the respondents against the order dated 30.09.1999 before this court however, the same was dismissed vide order dated 11.10.2000 and order with respect to striking out defence attained finality.

3. Upon receipt of summons, the original defendant, Devi Lal filed his written statement to the plaint and raised preliminary objections about maintainability of the suit. The defendant, however, admitted execution of the rent note and a request for fixation of standard rent was made. The defendant also denied default in payment of the rent and also questioned the bonafide necessity of the suit shop by the plaintiffs. A prayer for dismissal of the suit was made. During pendency of the suit, defendant Devi Lal died and his legal representatives were brought on record.

4. As per the pleadings of the parties, the learned trial court framed seven issues, including relief, which reads as under:

1- D;k oknh dks ;g okn oknh la-3 mez vO;Ld dh vksj ls ykus dk vf/kdkj gkfly gS\ ¼oknhx.k½
2- D;k izfroknh us oknxzLr nqdku dk fdjk;k egktuh laor 2036 ds fexlj lqnh 15 rd dk gh vnk fd;k gSA blds i'pkr~ dk fdjk;k izfroknh }kjk vnk u djus dh lwjr esa izfroknh fdjk;k vnk;xh ls vfrdzeh gks x;s gSa o oknhx.k nqdku [kkyh djokus ds vf/kdkjh gS\ ¼oknhx.k½
3- D;k oknhx.k dks oknxzLr nqdku dh Lo;a ds O;kikj gsrq futh vko';drk gS bl dkj.k oknhx.k nqdku [kkyh djokus ds vf/kdkjh gS\
4- D;k oknxzLr nqdku dk fdjk;k 411@& izfrekg u gksdj 175@& #i;s izfrekg gSA ;fn gka rks dc ls\ ¼izfroknh½
5- D;k bl nqdku dk ekud fdjk;k 72-50 #i;s gS] ftls r; djus dk izfroknh vf/kdkjh gS\ ¼izfroknh½
6- ;fn oknxzLr nqdku [kkyh u gks rks rqyukRed vlqfo/kk izfroknh ds eqdkcys oknh dks T;knk gksxh\ ¼oknhx.k½
7- nknjlhA^^

5. Both the parties to the proceedings adduced their evidence in support of t