MILAP CHANDRA JAIN, J. - (1.) THIS appeal has been filed against the judgment of the learned Additional District Judge No. 2, Jodhpur dated March 19, 1991 by which he has dismissed the appeal and confirmed the judgment of the learned Additional Munsif No. 1, Jodhpur dated August 14, 1986 decreeing the suit for arrears of rent and mesne profits and ejectment on the ground of default. The facts of the case giving rise to this appeal may be summarised thus.
(2.) ON October 17, 1978, the plaintiff Madanlal (husband of the respondent No. 1 and father of respondent Nos. 2 and 3) filed a suit against the defendant-appellant for the recovery of arrears of rent and mesne profits and ejectment with the allegations, in short, that the suit premises situated at Road No. 1A, Sardarpura, Jodhpur was let out to Motiram (father of the defendant-appellant) on monthly rent of Rs. 20/-. On November 15, 1971 suit No. 725/71 (on transfer to the Court of Civil Judge it was numbered as 367/73) was filed for the recovery of arrears of rent for the period November 1, 1970 to April 30, 1971 and mesne profits of the subsequent period. The benefit of the first default was given to the appellant Ram Chandra and suit was accordingly decided on April 28, 1975. Rent has again not been paid since February 1, 1976. Hence this suit for the recovery of Rs. 440/- as arrears of rent for twenty months from February 1, 1976 to November 30, 1977 and mesne profits of Rs. 200/- from December 1, 1977 to September 30, 1978 total Rs. 640/-. The defendants filed their written statement admitting that the suit house was taken on rent by their father Motiram, previous suit was filed for recovery of arrears of rent and ejectment and it was decreed. It has also been averred that at present Shyam Sunder son of Ram Chandra is living in the suit house and as such he is necessary party. After the death of Moti Ram rent was tendered by the defendants and Jhamau Lal several times to the plaintiffs but it was refused by them with a mala fide intention. Rs. 1,000/- have been spent in carrying out necessary repairs in the suit house. After framing necessary issues and recording the evidence of the parties the trial Court held that Shyam Sunder is not a necessary party in the suit. The previous suit was filed on the ground of default in payment of rent for more than six months and the benefit of the first default was given to the defendant-tenant and Motiram, rent has not been paid by the defendant since February 1, 1976. It is not proved that Rs. 1,000/- have been spent in carrying out repairs in the suit house and accordingly decreed the suit for ejectment and arrears of rent and mesne profits @ Rs. 20/- per month. The defendants preferred an appeal and it was dismissed by the learned Additional District Judge no. 2, Jodhpur as said above. It has been contended by the learned counsel for the defendant-appellants that the learned lower Courts have seriously erred to hold that the first suit No. 367/73 for ejectment was filed on the ground of default in payment of rent of six months and benefit under Section 13(6), Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called 'the Act') was given to the defendants in it. There is no force in this contention. It is clearly stated in para No. 4 of the plaint that the previous suit No. 397/73 was filed on November 15, 1971. Claiming rent from November 1, 1970 to April 30, 1971 @ Rs. 20/- per month and mesne profits from May 1, 1971 and it was decided on April 28, 1975. In reply to it, it has simply been averred in para No. 4 of the written statement that the suit was filed for the recovery of arrears of rent and it was decreed. It has been averred in para No. 5 of the plaint that during the pendency of the suit Rs. 980/- were recovered as arrears of rent and Rs. 50/- were allowed by the Court as interest. In reply, it has been averred in para No. 5 of the written statement that the tenant Motiram paid the entire amount of arrears of rent to the plaintiff. Admittedly, the previous suit was decided on April 28, 1975 by judgment Ex. 1. While deciding issue No. 3, the trial Court observed in its judgment Ex. 1 that this issue has become redundant as the defendant has deposited the arrears of rent in the Court in compliance with the order of the Court and as such the said ground for ejectment has not survived. In the reply Ex. A/2 to the plaintiff's notice the defendant has stated that in pursuance of the order of the Court, rent was paid @ Rs. 20/- per month. These facts and circumstances leave no doubt that the first suit for ejectment was filed on the ground of default in payment of rent for six months and benefit of Section 13(6) of the Act was given to the defendant in it. To ensure it, the record of the first suit was called for. On February 1972, the defendant moved an application, paper No. B11/1, in the first suit under Section 13(5) of the Act for settling the dispute regarding rate of rent which exist in between the parties to enable him to make payment of the arrears of rent to the plaintiffs. This dispute was decided by the order dated December 12, 1972. It was further ordered on this date that the defendant would make payment of Rs. 500/- @ Rs. 20/- per month upto the period of November 30, 1972 with interest @ 6% per annum on this amount. It is not in dispute that the payment was made in compliance with this order.
(3.) THE second suit has been filed with the clear averments that the defendants have not paid rent from December 1, 1976 to November 30, 1977 i.e. Rs. 440/- @ Rs. 20/- per month for 22 months and mesne profits of Rs. 200/- from December 1, 1977 to September 30, 1978 for 10 months at same rate. The defendants have simply averred in their written statement that they have not committed any default in payment of rent and rent was tendered but the plaintiff refused to take the same. No suggestion was put in the cross-examination of the plaintiff Madanlal PW1 that the rent of any month out of the aforesaid period i.e. from December 1, 1976 to September 30, 1978 was tendered by any of the defendants and it was not accepted by him. The defendant No. 2 Lakhumal DW1 has also not said in his statement that he or any other defendant tendered rent of any month of the said period to the plaintiff and it was not accepted by him. His witness Baburam DW2 has also not said a single word on this point. Shyam Sunder DW3 is the son of defendant No. 1 Ram Chandra. He says that he lives in the suit house and his father Ram Chandra lives at Ganganagar. He never refused to pay rent of the suit house to the plaintiff. In the cross-examination he denied the suggestion that the rent has not been paid since February 1, 1976. The defendant Ramchandra has stated in his reply Ex. A/1 of the plaintiff's notice dated November 15, 1977 that he paid rent of the period till May 31, 1976, the rent of the subsequent period was remitted by money order, they were received back with the note of refusal and the rent be accepted and receipt be issued within a week failing which the amount of the outstanding rent would be deposited under Section 19A of the Act. In their reply Ex. A/2, dated November 16, 1977, to the plaintiff's notice of ejectment dated October 24, 1977, the defendant Ram Chandra and Lakhumal have stated that despite tender of rent repeatedly it was not accepted and the same may be taken from them after issuing receipts. It is thus clear from these two replies Ex. A/1 and A/2 that according to the defendant rent was paid upto May 31, 1976. The second suit for ejectment was filed on October 17, 1978 and rent of more than six months was outstanding even according to the version of the defendants when the suit was filed. The defendants' case is that they tendered the rent and also remitted the same by money order. Admittedly, neither the postal receipts nor the refused money order coupons of the rent relating to this period have been filed. As already observed above, the defendant Lakhumal DW1 and Sham Sunder DW3 have not said in their statement that the rent of any these months was tendered to the plaintiff Madanlal and it was refused. The necessary ingredients of clause (i) of sub-section (1) of Section 13 of the Act are well proved. The defendants are not entitled to get the benefit of the proviso to sub-section (6) of Section 13 of the Act as they have already taken such a benefit in the previous suit. The learned lower Courts have rightly decreed the suit.;