- (1.) THIS petition has been filed challenging the orders dated 15-11-2011 and 25-7-2012 passed by the Additional District Judge (Fast Track) No.1, Jaipur Metropolitan, Jaipur. By the first order dated 15-11-2011 on an application filed by the respondent No.2- plaintiff (hereinafter 'the plaintiff') in his suit for eviction, the trial court had been pleased to delete para No.11 of affidavits of Dw.2 Suraj Narayan and DW.3 Govind Narayan wherein they sought to take a defence, in the opinion of the trial court, tantamounting to a defence against the ground of default in spite the defence in eviction petition having been earlier struck off under Section 13 (5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter 'the 1950 Act'). By the subsequent order dated 25-7-2012, the review petition filed by the petitioner-defendant (hereinafter 'the defendant') tenant against the order dated 15-11-2011 was also dismissed.
(2.) LEARNED counsel for the defendant submitted that the contents of para No.11 of the affidavits filed by DW.2 Suraj Narayan and DW.3 Govind Narayan pertain not to a defence against the ground of default but related to a defence against the eviction petition having been filed malafide, and not on the ground of bonafide and reasonable need. Counsel submitted that this court interpreting the provisions of Section 13 (5) of the 1950 Act has limited the striking off defence thereunder only in respect of default under Section 13 (1) (a) of the 1950 Act. It is submitted that being the legal position, the contents of para No.11 of the affidavits of Dw.2 Suraj Narayan and DW.3 Govind Narayan wholistically construed entailed not so much a defence against the ground of default but a defence against the ground of reasonable and bonafide necessity of the landlord seeking eviction. Per contra, Mr. D.D. Patodia, learned counsel appearing on behalf of plaintiff landlord, would submit that the case set up by the petitioner ought not to be considered in view of the fact that qua the evidence of defendant tenant Radhey Shyam himself, who filed an additional affidavit incorporating the same defence as incorporated in the para No.11 of the affidavits of Dw.2 Suraj Narayan and DW.3 Govind Narayan, the trial court vide its order dated 30-9-2010 had refused to allow the said averments by way of affidavits on the ground that such a plea was not permissible in view of defendant's defence being struck off under Section 13 (5) of the 1950 Act. It is submitted that when the evidence of tenant himself on an identical aspect of the matter has not been allowed by the trial court, and admittedly the said order dated 30-9-2010 had become final having not been challenged, it would be wholly inconsistent to allow the same evidence by way of affidavits at the instance of witnesses of the defendant tenant. Heard learned counsel for the parties, and perused the material available on record of writ petition, including the impugned orders passed by the trial court. I am of the considered view that when the very same evidence at the instance of tenant Radhey Shyam has not been allowed by the trial court under its order dated 30-9-2010, which has not been challenged by the tenant, there is no occasion for this court to allow the same evidence at the instance of other witnesses of the tenant. The question of eviction petition being not filed on bonafide and reasonable need under section 13 (1) (h) of the 1950 Act, would be dependent generally upon the evidence of tenant himself and not evidence at the instance of other witnesses of the tenant. Aside of that, in my considered opinion the very same evidence of the tenant himself having not been allowed to be taken on record, there is no occasion to allow the evidence identical at the instance of the other witnesses of the defendant tenant to be taken on record. Consequently, I find no force in the writ petition, and the same is therefore dismissed. Stay application also stands dismissed. All corrections made in the order have been incorporated in the order being emailed.;