- (1.) HEARD learned counsel for the defendant-appellant.
(2.) BY this second appeal under Section 100 C.P.C. the defendant appellant has challenged the modified decree of the first appellate court i.e. Additional District Judge (Fast Track) No.3, Ajmer (Camp at Kishangarh) dated 18th March, 2010 passed in regular first appeal no.20/2009 (42/2008). The first appellate court vide the said judgment and decree modified the judgment and decree passed by the trial court (Civil Judge, Sr.Div. Kishangarh) on 22nd August, 2008 in civil suit no. 14/2002 to the effect that the plaintiff-respondent shall be entitled for mesne profit at the rate of Rs.2585/- per month from May, 2001 to 12nd September, 2002 and she is further entitled for adjustment. Briefly, stated the facts of the case are that the plaintiff respondent filed a civil suit against the defendant-appellant for recovery of rent of the premises amounting to Rs.43,945/- for 17 months up to October, 2002 at the rate of Rs.2585/- per month with the averments that the rent of the disputed premises from 1st May, 2001 to October, 2002 total 18 months (total Rs.46,530/-) was due against the defendant out of which Rs.2585/- was paid by her by cheque. Therefore, the rent for 17 months was due towards her which was not paid despite demands. A legal notice was also sent to her on 16.9.2009 which was duly received by her but the rent was not paid. Therefore, the suit was filed. In her written statement the defendant denied the facts mentioned in the plaint and submitted that the premises were taken on rent by her at the monthly rent of Rs.251/- and the plaintiff has wrongly shown the monthly rent as Rs.2585/- per month. The Cheque of Rs.2585/- was issued against advance rent. It was also mentioned that she has not executed any agreement but the same is forged, not properly stamped and unregistered. Thus, it was prayed that the suit be dismissed. On the basis of the pleadings of the parties, the trial court framed the following seven issues:- 1.Whether, as per the averments made in para no.2 of the plaint, the present rent of the disputed premises is at the Rs.2585/- per month regarding which the defendant on 5.11.1993 wrote and signed the agreement (??????????) in favour of the plaintiff ? 2.Whether, as per the averments made in para 4 in the plaint, Rs. 46,530/- the rent of total 18 months from 1.5.2001 to October, 2002 is due against the defendant out of which after payment of Rs.2585/- by cheque, Rs.43,945/- is due which the plaintiff is entitled to receive? 3.Whether, the plaintiff is entitled to recover mesne profit at the rate of Rs.2585/- from the date of filing of the suit till the date of decree ? 4.Whether, as per the averments made in para 2 of the written statement, the alleged agreement (??????????) is forged and is not admissible in evidence ? 5.Whether, in absence of mention about cause of action in the plaint, the plaint is liable to be rejected ? 6.Whether, as per the averments made in para no.3 of the additional pleas, till 20.9.2002, the defendant deposited amount of Rs.2,09,490/- with the plaintiff as advance rent for which she is entitled for adjustment towards the future rent or she is entitled to receive the same in cash ? 7.Relief. In support of her case, the plaintiff appeared herself as PW.1 and also examined Gopal Rathi PW.2, Jagdish Prasad PW.3 and Kailash Chand Tapadia PW.4. In defence the defendant appeared herself as DW.1 and also got examined Prakash Chand DW.2. After recording evidence of the parties and hearing both the sides and appreciating the evidence of the parties, the trial court decided all the six issues in favour of the plaintiff and vide judgment and decree dated 22.8.2008 decreed the suit.
(3.) BEING aggrieved of the judgment and decree of the trial court, the defendant-appellant filed regular first appeal before the first appellate court. The first appellate court after hearing both the parties and appreciating the evidence available on record, came to the conclusion that the defendant vacated the premises on 12.9.2002 and handed over possession of the same to the plaintiff respondent and thus, vide judgment and decree dated 18.3.2010 partly allowed the appeal holding that the plaintiff is entitled to receive rent of the disputed premises at the rate of Rs.2585/- per month from May, 2001 to 12.9.2002 and rest of the claims of the plaintiff were rejected. Hence, this second appeal by the defendant-appellant. Counsel for the defendant appellant submits that the main substantial question in this matter is with regard to the finding that the plaintiff has failed to prove issue nos. 2 and 3, therefore, she is not entitled to get any mesne profit. ;