- (1.) The defendant-appellant (tenant) has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 31.7.2001 passed by the District Judge, Tonk in Civil Regular Appeal No.71/1996 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 13.2.1996 passed by the trial Court i.e. Additional Civil Judge (Junior Division), Tonk in Civil Suit No.198/1995 whereby the learned trial Court decreed the suit for eviction filed by the plaintiff-respondent.
(2.) Brief relevant facts for the disposal of this appeal may be stated as below :- (i) The suit shop was initially let out to the appellant by the respondent on 1.2.1970 at the monthly rent of Rs.35/- and in this regard a rent note was also executed. (ii) Civil Suit No.143/1977 was filed by the respondent against the appellant on 12.7.1977 for eviction on the ground of default in payment of rent under clause (a) of sub-section (1) of Section 13 of the Rajastnan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as "the Act") alleging therein that the appellant has failed to make payment of rent for a period of more than six months i.e. from the month of June 1975 to the month of June 1977. (iii) In the previous suit the appellant appeared before the Court concerned and the suit filed by the respondent was dismissed vide order dated 19.9.1977 (Ex.4). Vide that order provisional rent under Section 13 (3) of the Act was determined and the rent deposited by the appellant under Section 19-A of the Act was adjusted and in compliance of the order the appellant paid interest and cost of the suit to the respondent and it was also mentioned in the order that benefit of Section 13 (6) (wrongly mentioned as Section 13 (3) ) of the Act has been extended to the appellant. (iv) Some time in the year 1982 some alterations and modifications were made in the suit shop and the monthly rent thereof was increased from Rs.35/- to Rs.100/- and a new rent note was executed by the appellant in favour of the respondent. (v) The present suit was filed by the respondent on 2.6.1988 for eviction and recovery of arrears of rent with the averments that the respondent has not paid rent from 1.6.1985 to 31.5.1988 and he has again committed default in payment of rent for a period of more than six months and he is liable to be evicted from the suit shop. It was also averred that as the appellant has already obtained benefit of Section 13 (6) of the Act in the previous suit, he is not entitled to get the benefit again and he is liable to be evicted from the suit shop. It was also prayed that decree for arrears of rent and mesne profits may also be passed against the appellant. (vi) The appellant filed written statement on 17.10.1989 in which the material averments made in the plaint were denied and it was alleged that previously no default in payment of rent was committed by him and there was no question of extending benefit of Section 13 (6) of the Act to him in the previous suit. It was also averred that the appellant filed an application for transfer of the previous suit as no counsel was prepared to appear on behalf of him but the parties entered into compromise and the rent deposited by him under Section 19-A of the Act was set off and he paid remaining amount to the respondent in cash and the previous suit was dismissed on that basis. It was further averred that no finding was given in the previous suit that before filing of the suit default in payment of rent was committed by the appellant and, therefore, there was no question of affording benefit of Section 13 (6) of the Act to him in the previous suit. It is pertinent to note that this fact was not disputed by the appellant that rent for a period of 36 months was due against him before the institution of the present suit. (vii) An order determining the provisional rent under Section 13 (3) of the Act was passed by the trial Court on 2.4.1990. (viii) With the permission of the trial Court the appellant filed amended written statement on 5.3.1991 incorporating therein Para No.11 (a) regarding the creation of fresh tenancy between the parties in respect of the suit shop on the ground that fresh terms of tenancy were arrived at between the parties, the monthly rent was increased to Rs.100/- and a new rent note has been executed. It was pleaded that since then no benefit has been obtained by the appellant under Section 13 (6) of the Act and, therefore, he is entitled to get benefit of the first default committed after the creation of the new tenancy. (ix) Rejoinder to the amended written statement was filed by the respondent on 5.3.1991 and the fact of creation of the new tenancy as alleged by the appellant was denied. (x) Issues were framed by the trial Court on 3.9.1990 and additional issues were also framed on 11.7.1991 and both the parties produced oral as well as documentary evidence in support of their respective case and the learned trial Court after hearing both the parties decreed the suit filed by the respondent vide judgment and decree dated 13.2.1996. It was found by the Court that in the previous suit benefit of first default in payment of rent was extended to the appellant and, therefore, he is not entitled to get the benefit again in the present suit. It was also found that in the facts and circumstances of the case it cannot be said that new tenancy regarding the suit shop was created between the parties merely by the reason that the monthly rent was increased from Rs.35/- to Rs.100/-. In the light of the admitted fact that rent for a period of more than six months was due against the appellant, decree for eviction and arrears of rent etc. was passed. (xi) Dissatisfied with the judgment and decree passed by the trial Court the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide judgment and decree dated 31.7.2001. The learned appellate Court on the basis of evidence available on record and the case law cited before it upheld and affirmed each and every finding arrived at by the trial Court. Still dissatisfied the tenant-appellant is before this Court by way of this civil second appeal.
(3.) During the pendency of the appeal the original tenant appellant died and in his place his legal representatives were made party as appellants.;