HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No. 113/2010

Kalicharan S/o Shri Sohan Lal, AMC No. 866/25,

Pahadganj, Ajmer (Dead) Through Legal Heirs

1.

Umesh C. Sharma, Station Superintendent Rtd., Western

Railways, Ajmer (Dead) Through Legal Heirs

1/1.

Vikrant Sharma, W/o Late Shri Umesh Sharma,

1/2.

Smt. Umesh Sharma W/o Late Shri Umesh Sharma, 16,

Kailash Park Colony, Geeta Bhawan, Indore

2.

Chunni Lal S/o Shri Kalicharan, House No.866/25-845/25,

Pahadganj, Ajmer

----Appellants-defendants

Versus

1. M/s. Sacheti Brothers, Substituted By Kushal Chand Sacheti

Through Legal Heirs:

1/1. Kamal Chand son of late Shri Kushal Chand Shah Sancheti.

1/2. Shekhar Chand son of late Shri Kushal Chand Shah Sancheti

both residents of Lakhan Kothri, Durga Bazar, Ajmer.

----Respondent-plaintiffs

For Appellant(s)

:

Mr. Ajeet Kumar Sharma Sr. Adv. with

Mr. Rachit Sharma

For Respondent(s)

:

Mr. Ajeet Kumar Bhandari Sr. Adv.with

Mr. Jitendra Mishra

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

13/09/2022

Reportable

1.

Legal representatives of original defendant Kalicharan have

preferred this second appeal under Section 100 of CPC, assailing

the judgment and decree dated 06.2.2010 passed in Civil Regular

First Appeal No.271/2004 (262/2009) by the Court of Additional

District Judge (Fast track) No.4, Ajmer, affirming the judgment

and decree dated 24.9.2004 passed in Civil Suit No.58/95

(9/2002) by the Court of Additional Civil Judge (Senior Division)

No.2, Ajmer whereby and whereunder the decree for eviction and

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arrears of rent has been passed in favour of respondents-plaintiffs

and against defendants- present appellants.

2.

The relevant facts of the case, in brief, are that respondents-

landlord instituted civil suit on 16.2.1987 against defendant

Kalicharan, in relation to shop in question situated at Madargate,

Ajmer which was let out in the year 1948 at the rate of Rs.44/-

per month in the name of one Naval Kishore, who happens to be

the younger brother of defendant Kalicharan. It was stated in the

plaint that original tenant Naval Kishore has died on 28.12.1986

and defendant Kalicharan was in Railway service, who never did

any business with tenant Naval Kishore in the rented shop,

therefore, tenancy rights not devolve upon the defendant and

further rent for the shop in question has also not been paid,

therefore, plaintiff prayed for due arrears of rent and for

possession of the rented shop from defendant Kalicharan.

3.

The original defendant Kalicharan submitted his written

statement stating that shop in question was taken on rent by him

being karta of the joint Hindu family in the name of his brother

Naval Kishore who was carrying on business of shoe selling in the

name of N.K. Handloom and he used to help Naval Kishore in the

business, therefore, tenancy rights have devolved upon him and

he is having possession of the suit shop, in the capacity of tenant.

4.

After institution of suit defendant Kalicharan passed away,

therefore, his legal representatives were brought on record. After

substitution of legal representatives of original defendant

Kalicharan, when the suit was at the stage of recording evidence,

an application dated 26.05.1994 under Order VI Rule 17 CPC was

moved by plaintiff seeking an amendment in the plaint stating

inter alia that at the time of institution of present suit, the rate of

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[CSA-113/2010]

rent as determined in another civil suit No.209/77 vide judgment

dated 9.2.1982 was at the rate of Rs.131.25/- per month but in

appeal, vide judgment dated 2.6.1990, rate of rent has increased

to Rs.218.75/- per month, therefore, plaintiff claimed arrears of

rent at the enhanced rate of Rs.218.75/- per month instead of at

the rate of Rs.131.25/- and prayed for addition of ground of non-

user for eviction of defendant. In relation to addition of the ground

o