SENIOR DIVISIONAL MANAGER Vs. LAXMAN RAO PHALKE

JUDGEMENT

(1.) This first appeal has been filed by the defendants-tenants/appellants under the provisions of section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 28.09.2006 passed by the court of IX Additional District Judge (Fast Track Court), Gwalior in Civil Suit No. 46A/2006, which was instituted on 20.09.2005 for the purpose of seeking eviction of the tenant from the leased premises and also for recovery of arrears of rent.

(2.) It is contention of the appellants that prior to filing of the aforesaid suit, suit premises was already vacated on 30.11.2004, as has been admitted by the plaintiff's witness Shri Vijay Singh Rao Falke (P.W.1) in para 17 and 18 of his cross examination. He has admitted that on 30.11.2004 the suit property was vacated by the Life Insurance Corporation but he did not accept the keys of the vacated premises as there was some waste material in the premises and premises vacated was not in the same condition in which it was obtained by the lessee. It has also come on record in the form of admission in para 18 of the cross examination of the plaintiff witness Shri Vijay Singh Rao Falke (P.W.1) that on 1.12.2004, Life Insurance Corporation of India had given notice to obtain possession but he had given reply to said notice. It has also come in the cross-examination that after vacation of the leased premises, no expert report was obtained as to the extent of the damages.

(3.) It is also an admitted position as is apparent from the perusal of the suit that the suit was filed after ten months of the vacation of the leased premises but no relief was claimed by the plaintiff in the form of damages in the said suit and only relief which was claimed was for vacation of the leased premises and payment of arrears of rent for the intervening period. It has also come on record that plaintiff had earlier filed another suit seeking decree against the present appellants that they be stopped from vacating the suit premises and that suit was dismissed.