KULDIP RAJ GUPTA Vs. SUDESH KUMAR

JUDGEMENT

(1.) THIS is plaintiffs second appeal against the judgment and decree of the District Judge, Jammu dated 20 -2 -1971 affirming the judg ­ment and decree passed by the city Judge, Jammu whereby he dismissed the plaintiffs suit.

(2.) THE facts necessary to be considered in this appeal are almost admitted. Respondent Sudesh Kumar is a tenant of a shop situate in Raghunath Bazar, Jammu, owned by the plaintiff appellant. The appellant filed a suit for the ejectment of the defendant respondent on the ground that the defendant had committed several defaults in the pay ­ment of rent. During the pendency of the suit the plaintiff appellant moved an application requesting the trial court to issue directions to the defendant respondent that he should deposit in court the arrears as well as the monthly rent. The defendant admitted that he was in arrears and the court granted him time to deposit the arrears. As the arrears were not deposited in time the trial court struck of the defence of the defendant -respondent vide its order dated 24 -3 -70. The defendant filed a revision petition in this court and the said order was confirmed by this Court on 23 -4 -1970. Daring the pendency of this revision the defendant -respondent filed an application before this court submitt ­ing that the suit of the plaintiff -appellant who was the respondent in the revision petition at that time should be dismissed as infructuous because he has served the defendant with a fresh notice for ejectment thereby accepting him as his tenant. While rejecting the revision petition by the above said order Honble the Chief Justice, who heard that revision peti ­tion did not make any comment on the said application but directed the trial court to hear and dispose of the said application of the defendant respondent on merits.

(3.) AFTER the case went back to the trial court the learned City Judge heard the parties on the said application and came to the conclu ­sion that by serving the fresh notice the plaintiff -appellant has accepted the defendant -respondent as his tenant and has treated the lease as subsist ­ing between the parties as such the previous notice stands waived un ­der Section 113 of the Transfer of Property Act, 1977, Samvat, so he dismissed the suit but left the parties to bear their own costs. The plain ­tiff appellants appeal to the District Judge also failed who affirmed the findings of the trial court. Hence this second appeal.