DALI CHAND Vs. RUKMANI BAI

JUDGEMENT

(1.) This is defendant-tenant's second appeal under Section 100 C.P.C. When the matter was called out for admission, learned counsel for the appellant submitted that four weeks time may be granted to file an application under Order 41 Rule 27 C.P.C, despite note given on the top of the cause list that no adjournment shall be granted in rent control and eviction matters. This prayer was not acceptable to the court. Upon being pointed out also, learned counsel insisted on adjournment and failed to address the Court on admission of the appeal and also failed to point out as to what additional evidence is sought to be placed on record now with application under Order 41 Rule 27 of C.P.C prima facie any justification for adjournment on this ground. Therefore, the Court was left with no alternative but to peruse the record of the case on its own and consider the grounds raised in the appeal.

(2.) This appeal is directed against the order of first appellate court dated 25/4/2008 affirming the eviction decree by dismissal of first appeal as time barred. The said appeal was filed before the first appellate court against the decree of eviction dated 29/4/2006 after the delay of 85 days. The grounds raised for explaining the delay in filing the appeal were medical grounds namely treatment of eyes of defendant appellant and sickness of son's wife and the same were not found sufficient by the first appellate court because these events were prior to passing of the impugned decree itself, namely the eyes treatment of the defendant was with reference to 24/1/2005 and sickness of son's wife was with reference to 28/1/2005, who later on said to have died on 14/5/2006. Thus, the first appellate court found that these events occurring prior to passing of the decree were not sufficient to explain the delay in filing the appeal which became time barred when it was filed on 22/8/2006. Besides this, the trial court had decreed the eviction suit on the ground of default in payment of rent as also on the ground of denial of relationship of landlord and tenant between the parties.

(3.) While deciding the issue nos.1 and 4 jointly, learned trial court on the basis of evidence found in favour of plaintiff that the relationship of landlord and tenant was established by the plaintiff and despite service of notice under Section 106 of Transfer of Property Act determining the tenancy of the defendant, the defendant had failed to handover the possession of suit premises, a room in question, and, therefore, plaintiff was entitled to decree. Learned trial court also noted that earlier suit no.4/2001 was withdrawn by the plaintiff with liberty to file fresh suit and after service of notice under Section 106 of Transfer of Property Act the present suit no.326/2003 was filed. Notice was given by the plaintiff on 20/10/2003 which was received by the defendant on 22/10/2003.