Advocates:
['J P SAXENA', 'M M RANJAN', '', 'PARAG RASTOGI', 'AMIT PUNIA']

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

ORDER

IN

S.B. Civil Miscellaneous Appeal No.1563/1999

With

S.B. Civil Misc. Stay Appl. No.7392/1999

Shri Nirmal Kumar Dugar S/o late Shri Dhan Raj

Dugar

Versus

Bhanwar Lal alias Bhonri Lal S/o Shri Bhura Lal

(deceased) through Shri Narendra Kumar Saini

Date of Order ::: 07.08.2008

Present

Hon'ble Mr. Justice Narendra Kumar Jain

Shri M.M. Ranjan, Counsel for plaintiff-

appellant

Shri Parag Rastogi, Counsel for defendant-

respondent

####

By the Court:-

Heard learned counsel for the parties.

Briefly stated the facts of the case are

that plaintiff-appellant Nirmal Kumar Dugar

filed a suit for eviction and recovery of

arrears of rent in respect of rented premise,

against defendant-respondent Bhanwar Lal alias

Bhonri Lal on the grounds of default in making

the payment of monthly rent and denial of

title. During the pendency of the suit, the

sole defendant Bhanwar Lal died and his legal

heir i.e. his son Narendra Kumar Saini was

substituted in his place. A notice of the

application under Order 22 Rule 4 CPC was

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served upon the legal representative of

deceased defendant but legal representative did

not appear in spite of service of summon,

therefore, ex-parte order was passed against

him in the case. The plaintiff examined PW-1

Nirmal Kumar and PW-2 J.P. Saxena. The trial

court recorded a finding that the defendant

committed default in making the payment of rent

but he is entitled to get the benefit of first

default under sub-section (6) of Section 13 of

the Rajasthan Premises (Control of Rent and

Eviction) Act, 1950, (for short, 'the Act of

1950') therefore, no decree of eviction can be

passed on the ground of default in making the

payment of rent.

So far as another ground i.e. denial of

title is concerned, the counsel for the

plaintiff did not press that issue before the

trial court therefore no decree was passed on

that ground also.

The trial court decreed the suit of

arrears of rent for a sum of Rs.1,656/-, and

further directed to pay the monthly rent at the

rate of Rs.46/- along-with interest at the rate

of 6% per annum. Being aggrieved with the

refusal to pass a decree of eviction on the

ground of default, the plaintiff preferred an

appeal before the first appellate court, who,

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vide its judgment and decree dated 31^st May,

1999 allowed the appeal and set-aside the

judgment and decree passed by the trial court

and remanded the matter to the trial court with

a direction to afford an opportunity to the

defendant to file its written-statement and to

both the parties to lead their evidence and to

decide the matter afresh. The first appellate

court was of the view that although the summon

sent to legal representative under Order 22

Rule 4 CPC was served upon him but thereafter

no summon of suit was served upon the

defendant, therefore, the trial court committed

an illegality in passing the decree of arrears

of rent ex-parte against the defendant.

Being aggrieved with the order of remand

passed by the first appellate court, the

plaintiff has preferred this miscellaneous

appeal under Order 43 Rule 1(u) read with Order

41 Rule 23A of the CPC.

The learned counsel for the appellant

contended that even as per the finding of the

trial court as well as the first appellate

court, it is clear that soon after the death of

deceased defendant Bhanwar Lal, the application

was filed for substitution of his legal

representative and notice of that application

was issued to his legal representative Narendra

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Kumar Saini and the same was served upon him

but he failed to appear in response thereto. He

contended that there was no necessity to give

any fresh notice of the suit. He referred Form

No.6 of Appendix-B, CPC, related to Order 22

Rule 4 CPC wherein it is mentioned that in case

the party concer