GOYAL, J. - (1.) THIS is the second appeal by the defendant- tenant against the judgment and decree dated 17. 7. 2001 whereby learned Additional District Judge No. 3, Jaipur City, Jaipur affirmed the judgment and decree of eviction dated 20. 3. 1999 passed by learned Additional Civil Judge (Junior Division) No. 4, Jaipur City, Jaipur.
(2.) THE plaintiff Sh. Jamnadas filed a civil suit for arrears of rent and eviction on 16. 9. 1976 against the defendant-tenant Sh. Kesar Lal with the averments that two shops and one `kotha' were let-out to the defendant on 9. 2. 1951 on monthly rent of Rs. 35/ -. On account of default in payment of rent and reasonable and bonafide requirement for the plaintiff's son Rajendra Kumar, the plaintiff had filed a civil suit No. 19/1969 for arrears of rent and eviction. THE defendant in that civil suit filed an application under Section 13-A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act ). That application was decided on 31. 10. 1975. THE defendant having complied with that order got the benefit of the first default. THE defendant, thereafter did not pay the rent for November, 1975 to August, 1976 and thus committed second default. THE defendant is now not carrying on any business in the suit shop and he has sub-let the suit premises to his son Girraj Prasad who is doing his independent business in the name and title of Pitaliya Mishthan Bhandar. THE eviction was sought on the grounds of second default, sub-letting and substantial damage. It was also prayed that standard rent may be fixed at the rate of Rs. 87. 50 per month. The defendant in his written statement having admitted the tenancy denied all the grounds of eviction. Issues were framed. Evidence was recorded. The Trial Court vide judgment dated 20. 3. 1999 held that the defendant got the benefit of the first default in the 1st civil suit No. 19/1969; that the defendant committed second default; that the defendant has sub-let the suit premises and thus passed a decree of eviction. During the pendency of the suit defendant Kesar Lal died, hence his son Girraj Prasad was impleaded as his legal representative. The plaintiff Jamna Das also sold this property to the plaintiff No. 1/1 Rishikesh Fatehpuria. First appeal preferred by the appellant-Girraj Prasad was dismissed vide impugned judgment dated 17. 7. 2001. This Court on 24. 9. 2001 framed following substantial questions of law:- 1. "whether the defendant-appellant against whom a decree for partial eviction was passed in an earlier suit which went up to the stage of Supreme suit which went up to the stage of Supreme Court and the defendant-appellant was protected from eviction in regard to one of the shops which is in his occupation, could be treated as a sub-tenant in the subsequent suit for eviction in regard to same suit premises although he was protected from eviction from that shop ?" 2. "whether the defendant-appellant could be held guilty of default in regard to such arrears for which payment had already been made in the previous suit and had been granted benefit of the first default?"
(3.) QUESTION No. 1:- Before coming to the submissions made by learned counsel, it is necessary to narrate brief facts of the first civil suit No. 19/1969. Thus suit for arrears of rent and eviction was filed by the plaintiff landlord Jamna Das against the defendant-tenant Kesar Lal on 13. 5. 1968. Eviction was sought on the grounds of default in payment of rent and reasonable and bonafide requirement. The defendant denied both the grounds of eviction. Issues were framed. After recording the evidence the then learned Additional Munsif No. 1, Jaipur City, Jaipur vide judgment dated 10. 10. 1979 held that the plaintiff has proved his reasonable and bonafide requirement. Giving benefit of first default, decree of eviction was passed. First Appeal No. 1/1982 filed by the defendant-tenant was dismissed by Additional District Judge No. 1, Jaipur City, Jaipur vide judgment dated 13. 11. 1987. During the pendency of this appeal the defendant-tenant Sh. Kesar Lal died on 13. 1. 1980. An application was moved by Girraj Prasad-on of the deceased-appellant Kesar Lal for substitution of his name. He claimed himself to be the tenant as provided under Section 3 (vii) (b) of the Act. This application was allowed by the First Appellate Court on 30. 3. 1981 on the ground that this application was not opposed by the plaintiff-respondent. Consequently, the appellant Girraj Prasad was impleaded as legal representative of the deceased-tenant Sh. Kesar Lal. ;