The admission by the plaintiffs during cross-examination was the best evidence, and the first appellate Court erred in ignoring it.

JUDGMENT

Manoj Bajaj, J. (Oral) - CM-5121-C-2022 and CM-5122-C-2022

1. These applications have been filed by applicant/appellant under Order XLI Rule 5 CPC read with Section 151 CPC for stay of the execution of the impugned decree dated 14.12.2018 passed by appellate Court. The other application has been filed under Section 151 CPC for preponing the date of hearing in the main appeal, which is fixed for hearing on 10.01.2023.

2. Learned counsel has submitted that the appellate Court has erroneously reversed the decree passed by the trial Court, and decreed the suit of the plaintiffs by ignoring the material evidence and though the notice of motion has been issued by this Court in this appeal, but the same is not taken up for hearing and on the other hand, the executing Court is proceeding with the execution. In this regard, he has produced the copy of the order dated 26.07.2022 passed by Addl. Civil Judge (Sr. Divn.), Kurukshetra, whereby warrants of arrest against judgment debtors have been issued for non-execution of decree. He prays that the execution proceedings be stayed and the date of hearing in the main appeal be also preponed.

3. Notice in the applications.

4. At this stage, Mr. Rajesh Bansal, Advocate for the respondents, accepts notice and states that he has no objection, if the date of hearing in the appeal is preponed.

5. In view of the above, the application for preponement is allowed and date of hearing in the main appeal is preponed to today. The other application for staying the impugned judgment and decree is disposed of as infructuous.

Main case

6. Appellant/defendant No.1 has preferred this regular second appeal to challenge the judgment and decree dated 14.12.2018 passed in Civil Appeal No.367 of 2015 by Addl. District Judge, Kurukshetra, whereby the judgment and decree dated 31.07.2015 passed in Civil Suit No.90 of 2014 by Addl. Civil Judge (Sr. Divn.), Kurukshetra, partly decreeing the suit for recovery filed by plaintiffs/respondents, was reversed and their suit was decreed.

7. Briefly, the facts leading to the appeal are that the plaintiffs claiming themselves to be owners of the suit property situated at Red Road Kurukshetra, had executed a lease deed dated 06.09.2012 in favour of the defendants for a period of three years i.e. w.e.f. 01.12.2012 to 30.09.2015 on a monthly rent of Rs.1,50,000/-. As per terms and conditions, the rent was to be paid to the plaintiffs within 7 days of every month in advance and in case of delay, Rs.500/- per day would be chargeable from the defendants. As per pleadings, the defendants failed to pay the rent for the months of October-November, 2012, as well as from January to April, 2014 and are in arrears of total Rs.9,00,000/- along with Rs.6,75,000/- (penalty), Rs.50,946/- as municipal tax and Rs.36,578/- towards electricity charges. The plaintiffs served a legal notice dated 21.02.2014 upon defendants asking them to make the payment of Rs.16,62,524/- and in response, the defendant No.1 sent his reply dated 25.02.2014. The plaintiffs made various requests to the defendants to make the payment of arrears of rent etc., but they have refused to make the payment, therefore, on this cause of action, the plaintiffs filed a suit for recovery of Rs.16,62,524/-.

8. Upon notice, defendants had filed their joint written statement to contest the suit and raised preliminary objections relating to maintainability, locus standi, cause of action, concealment of facts etc. and on merits, the relationship between the parties as well as rate of rent have not been disputed. The defendants pleaded that they had paid the rent for the months of October-November, 2012 by way of a cheque amounting to Rs.3,00,000/- and the same was encashed in favour of plaintiff No.1 on 24.07.2012. They further claimed that the rent for the month of January, 2014 was also paid in cash and another sum of Rs.1,50,000/- was paid through a cheque drawn at Corporation Bank, Bhikaji Cama Place, New Delhi, which also stood cred