MILAP CHANDRA JAIN, J. - (1.) THESE second appeals have been filed against the common judgment of the learned Additional District Judge, Banswara dated September 25, 1993 by which he has dismissed the appeals filed against the similar judgments of the learned Munsiff, Banswara dated April 13, 1992, decreeing the suits for the recovery of arrears of rent and mesne profits and for ejectment of the defendant-appellants on the grounds of default, reasonable and bonafide necessity and sub-letting.
(2.) THE trial court determined the amounts of rent, mesne profits and interest under Section 13(3), Rajasthan Premises (Control of Rent and Eviction), Act, 1950 (hereinafter to be called 'the Act') in both the suits and the amounts so determined were deposited in time. In both the cases, the defendant-appellants failed to deposit the rent of the month of February, 1983 in time and it was deposited on April 16, 1983 along with the amount of rent of the month of March, 1983. The defence was struck out under Section 13(5) of the Act. Appeals filed against the orders striking out defence were dismissed. Civil Revision Petitions No. 313 and 330 of 1985 filed by the defendant-appellants were also dismissed by this Court by common order dated July 22, 1986. After recording the evidence of the plaintiff and giving an opportunity to cross-examine the plaintiff's witnesses and hearing the parties, the trial court decreed the suits for ejectment on all the three grounds. Appeals have also been dismissed as said above. In both the appeals, it has been contended by the learned counsel for the appellants that the principle of res judicata would not apply so far as the question of default is concerned. He relied upon Jai Singh Jai Ram Tyagi v. Maman Chand Ratilal and others, 198191) RCR 653 (SC) : AIR 1980 SC 1201 and Nathilal Khandelwal and Ors. v. Dharmendra Kumar and Ors., 1979 Allahabad Law Journal 857. He further contended that if Jai Singh Jai Ram Tyagi v. Maman Chand Ratilal, 1970 RCR 396 (SC) : AIR 1980 SC 1201 and Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N. B. Jeejeebhoy, AIR 1971 SC 2355 would have been cited and considered, the observations made in Desh Raj v. Om Prakash, 1987(2) RCR 430 (Rajasthan) : 1988(2) R.L.R. 173 para 3, would not have been made and as such the said observations have been made per incurium. Mr. Shishodia, Senior Advocate also contended that in both the suits it is not proved from the evidence on record that the said delay in the deposit of rent of the month of February, 1983 was wilful or contumacious and as such the defence could not be struck out. He relied upon Bhagwan Das v. Murti Mandir Ganeshji, 1991(1) RLR 619, M/s. Suman Stationers v. Banshilal, 1993(1) WLN 231 and Prahlad Kumar v. Babulal, 1990(2) RLR 649. He lastly contended that the judgment of the appellate court is no judgment in the eye of law.
(3.) IN reply, Sri Prakash Tatia, learned counsel for the plaintiff-respondent, contended that even taking into consideration Jai Singh Jai Ram Tyagi v. Maman Chand Ratilal, 1981(1) RCR 653 (SC) : AIR 1980 SC 1201, Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy, 1970 RCR 396 (SC) : AIR 1971 SC 2355 and Vishan Das v. Savitri Devi, 1988(2) RCR 634 (Rajasthan) (FB) : 1988(1) RLR 1 (FB), the result of the cases would remain the same as the defendant-appellants have failed to show in both the cases that due to sufficient cause delay occurred in depositing the rent of the month of February, 1983 particularly when business was regularly carried out in the suit shops without closing them for a single day during the said period. He also contended that even according to them only one defendant in both the cases fell ill and nothing has been said as to why the other defendant who was looking after the business could not deposit the rent in time. He further contended that in their applications for the extension of time, they simply sought extension for 15 days only and admittedly the amounts of the rent of February, 1983 were not deposited even in this desired extended period and as such there existed no cause what to say of sufficient cause for condonation of delay under Section 5, Limitation Act as laid down in Vishan Das v. Savitri Devi, 1988(2) RCR 634 (Rajasthan)(FB) : 1988 RLR 1 (FB). He also contended that the words "wilful" and contumacious do not appear either in sub-section (1) or in sub-section (5) of Section 13 of the Act and courts cannot supply them under the guise of interpretation. He further contended that the trial court and appellate court have held that the suit shops are reasonably and bonafide required by the plaintiff- respondent, the defendant-appellants would not suffer greater hardship and the partial eviction is not possible and these concurrent findings of fact are not open for challenge in the second appeals. He lastly contended that no elaborate judgment of the appellate court was required when it was concurring with the findings of the trial court particularly when the evidence of the plaintiff-respondent has gone unrebutted.;