- (1.) This civil second appeal has been preferred by appellant-defendants being aggrieved by the judgment and decree dated 18.02.2010 passed by learned Additional District Judge (Fast Track) No.2, Bikaner in Civil Appeal Decree No.17/2009, whereby the learned first appellate court dismissed the appeal of the appellant-defendants and affirmed the judgment and decree dated 23.10.2001 passed by learned Additional Civil Judge (Junior Division) and Judicial Magistrate, First Class, No.2, Bikaner in Civil Original Suit No.23/1999, whereby the learned trial court decreed the suit filed by the respondent-plaintiff for arrears of rent and eviction of the suit premises.
(2.) The brief facts of the case are that the respondentplaintiff filed a suit for arrears of rent and eviction under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 on 27.03.1998 against original defendant Prabhu Dayal. It was averred in the plaint that the appellant-defendant took on rent a premises situated behind the Nagar Parishad, Near Kirti Stambh belonging to the respondent-plaintiff on the rent of Rs.60/- per month by way of oral agreement accompanied by delivery of possession and the tenancy is month by month, which starts on the first day of every month and ends on the last day of the month. It was further averred that the defendant had paid rent upto February 1984 and thereafter the rent was not paid, upon which the plaintiff filed a suit against the defendant on the ground of default. The said suit was decided on 31.05.1990, whereby the trial court in that suit while granting the benefit of first default to the defendant, dismissed the suit. It was further averred that in that suit the rent was deposited upto May 1990 and after May 1990, it was the duty of the defendant to make the payment month by month as and when it becomes due, but the defendant while violating the provisions of the Act of 1950, sent the rent by an interval of three months from June 1990 to June 1996 through money order, thus, the defendant has not made the payment of rent as and when it became due. It is averred that the defendant has neither tendered nor paid the rent of 18 months from July 1996, thus, he has committed second default. Hence, the respondent-plaintiff filed the suit for arrears of rent and eviction of the premises in question. The defendant filed written statement and averred that it was agreed that it will be duty of the plaintiff to raise the demand of rent and collect the same from the defendant month by month as and when the same becomes due and no occasion has arisen when the plaintiff raised the demand of rent and the defendant did not pay the same, thus, he has never committed any default. It was further averred that rent upto year 1996 was recovered irregularly by the plaintiff and no demand has been raised by the plaintiff from July 1996. The rent was offered to the plaintiff, but he refused to accept the same, therefore, the same was sent through money order, which also was not accepted by the plaintiff. Hence, the rent was deposited in the court under Section 19A of the Act of 1950. Thus, it was prayed that the suit may be dismissed. On the basis of the pleadings of the parties, the learned trial court framed as many as 3 issues. Both the parties adduced their respective oral as well as documentary evidence in their support.
(3.) After hearing the parties, the learned trial court decided all the issues in favour of the plaintiff and vide Page 3 of 10S.B. Civil Second Appeal No. 70/2010 judgment and decree dated 23.10.2001 decreed the suit in favour of the plaintiff.;