HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No.437/2005

Mateen Aadil, S/o Wahid Ali Muslim, R/o Mohalla, Pahadia

Gadda, Tonk Raj.

----Appellant-Plaintiff

Versus

Anees Mian, S/o Chuttu Khan Muslim, R/o Mohalla Pahadia, Tonk

Raj.

----Respondent-Defendant

For Appellant(s)

:

Mr. Praveen Jain

For Respondent(s)

:

Mr. Bharat Yadav

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

16/05/2022

1.

This second appeal has been filed by appellant-plaintiff-

landlord under Section 100 CPC assailing the judgment and decree

dated 13.07.2005 passed in Civil Appeal No.70/2003 by the Court

of District Judge, Tonk affirming the judgment and decree dated

03.09.2003 passed in Civil Suit No.221/1992 by the Court of

Additional Civil Judge (Upper Division), Tonk whereby and

whereunder civil suit for rent and eviction, filed by appellant-

plaintiff, has been decided in the manner that defendant-tenant

has been declared to commit first default in payment of rent,

however, by extending benefit of first default, the decree for

eviciton has been declined.

2.

Having heard learned counsel for both parties and on perusal

of impugned judgments and record, it is not in dispute that

defendant-tenant was found defaulter in payment of rent for the

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period 01.01.1992 to 31.10.1992 and counsel for defendant-

tenant has not disputed findings of default for the alleged period.

Hence the court is not required to consider the issue of default in

this second appeal.

3.

The issue which falls for consideration by this Court in the

present second appeal is limited as to whether the defendant-

tenant is entitled to get benefit of first default or not and as to

whether the two courts below have committed illegality and

jurisdictional error in extending the benefit of first default to

defendant-tenant?

4.

This Court, vide order dated 28.07.2006, framed the

following substantial questions of law to be considered in the

present appeal:-

“1. Whether the impugned judgments are vitiated

and are liable to be reversed on account of non-

reading and for non-considering the material

admissions of the defendant regarding defaults

contained in his statements of payments dated

23.05.2003 filed in the trial court?

2. Whether the defendant has not paid the current

rent from January 2005 to May 2005 and therefore

he is liable to be evicted on the ground of default?

3. Whether the learned courts committed legal

blunder in not passing the decree of undisputed rent

amount in the facts and circumstances of the case?”

5.

In order to consider the aforementioned substantial

questions of law and issues fall for consideration, it is relevant to

have a look on facts of the case.

The rented premise is a shop measuring 4 X 6 ft. situated in

district, Tonk which is in tenancy of defendant-tenant w.e.f.

01.12.1989 at the rate of Rs.125/- per month. Appellant-plaintiff

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institued a suit for rent and eviction on 13.11.1992 alleging inter

alia that tenant has committed default for more than six months in

payment of rent for the period 01.01.1992 to 31.10.1992. The

eviction suit was filed invoking provisions of Section 13 (1) of the

Rajasthan Premises (Control of Rent and Eviction) Act, 1950

(hereinafter referred to as “the Act of 1950”).

The defendant-tenant in his written statement denied the

default in payment of rent.

6.

During course of eviciton suit based on the ground of default,

as per scheme of the Act of 1950, provisional determination of

rent was made by trial court vide order dated 21.02.1994 under

the provisions of Section 13(3) of the Act of 1950 and the due

rent from 01.01.1992 to January, 1994 was determined.

As per provisional determination, the defendant-tenant was

required to pay the determined rent as well as the rent of

subsequent m