Bela M. Trivedi, J. - (1.) THE present writ petition has been filed by the petitioner -plaintiff under Articles 226 & 227 of the Constitution of India, challenging the order dt. 13.11.2013 passed by the Additional District & Sessions Judge No. 14, Jaipur Metropolitan, Jaipur (hereinafter referred to as "the appellate Court") in Appeal No. 19/2013, whereby the appellate Court has framed the additional issue as issue No. 6(k), and directed the trial Court to decide the said issue within six months, after appreciating the evidence of both the parties, and send back the matter to the appellate Court after recording its finding on the said issue as per Order XLI Rule 25 of C.P.C. The short facts giving rise to the present petition are that the petitioner -plaintiff had filed the suit for eviction and for recovery of arrears of rent against the original -defendant Govind Ram on the ground of default in payment of rent, sub -letting, material alteration, etc. on 20.07.1978. The said Govind Ram had filed the written statement on 20.03.1979. Thereafter, the trial Court had framed the issues on 14.11.1979. It further appears that during the pendency of the suit, the original defendant Govind Ram expired on 06.02.1989, and the petitioner, therefore, had filed the application for bringing the legal heirs of the said defendant on record, specifically stating inter alia that the legal representatives of Govind Ram did not fall within the purview of the definition of "tenant" under Sec. 3(VII) of the Rajasthan Premises (Control of Rent & Eviction) Act 1950 (hereinafter referred to as "the said Act"). The said legal representatives i.e. the present respondents were brought on record on 08.08.1994 and the amended plaint was also filed by the petitioner accordingly. However, the respondents after having been substituted as the legal representatives of the deceased Govind Ram did not file any further written statement, and adopted the written statement already filed by the deceased Govind Ram, as per their application dt. 15.09.1994. The trial Court, thereafter, decreed the suit of the petitioner plaintiff vide the judgment & decree dt. 26.10.1999, on the ground that the tenancy rights did not devolve upon the legal representatives of the deceased Govind Ram i.e. the present respondents, however the trial Court recorded its findings against the petitioner -plaintiff on the other issues framed by it. Being aggrieved by the said judgment & decree, the petitioner as well as the respondents had filed their respective appeals before the appellate Court. In the said appeals, the appellate Court passed the impugned order as stated hereinabove under Order XLI Rule 25 of CPC. Being aggrieved by the said order, the present writ petition has been filed.
(2.) IT has been vehemently submitted by the learned counsel Mr. R.K. Daga for the petitioner that the appellate Court should not have framed the additional issue and remanded the matter to the trial Court, when the facts pertaining to the said issue were not controverted by the respondents during the pendency of the suit. He also submitted that the respondents had not resisted the application of the petitioner -plaintiff before the trial Court though it was averred that the respondents were impleaded as the legal representatives of the deceased defendant Govind Ram, and not as the tenants in respect of the suit premises. The respondents had also not chosen to file any further written statement in this regard, meaning thereby the respondents had accepted that they were not the tenants within the meaning of Section 3(VII) of the said Act. Learned counsel Mr. Daga has relied upon the decision of the Apex Court in case of Tarn Cland & Anr. vs. Ram Prasad, : (1990) 3 Supreme Court Cases 526, to submit that in order to fall within the definition of "tenant" under Sec. 3(vii)(b), the surviving spouse or son or daughter or the heir as the case may be have to prove that they ordinarily had been carrying on the business during the lifetime of the tenant as members of the family in the demised premises and continued to do so till date of death of the tenant. However, the learned counsel Mr. Sudesh Bansal for the respondents vehemently submitted that the impugned order passed by the appellate Court being under Order XLI Rule 25, and supported by reasons, this Court should not interfere with the said order. Relying upon the decision of the Full Bench judgment of this Court in case of Smt. Ramjeevni & Ors. vs. Smt. Narati Bai,, RLR 1989 (2) 308, and the decision of this Court in case of Govind Narayan vs. Bodh Raj & Ors., : 1999 (1) RLR 361, he has submitted that the respondents were entitled to the protection of the Act without there being any requirement to fulfill the conditions laid down under Sec. 3(vii)(b) of the said Act. According to Mr. Bansal, the is' sue framed by the appellate Court being necessary to resolve the controversy between the parties, the present writ petition deserves to be dismissed.
(3.) IN the instant case, it is not disputed by the learned counsel Mr. Bansal for the respondents, that the application filed by the petitioner for bringing on record the respondents as legal representatives of the original defendant Govind Ram, was not resisted by the respondents in the trial Court, though it was specifically mentioned therein that they were brought on record as the legal representatives of the deceased defendant, and were not entitled to the protection under Sec. 3(vii)(b) of the said Act. It also appears from the impugned order passed by the appellate Court that in the amended plaint filed by the plaintiff on 06.08.1994, it was specifically mentioned that none of the respondents was carrying on any business with the deceased tenant during his life time, nor had continued to do so till his death in the suit premises, and therefore none of the respondents could be said to be the "tenants" within the definition under Sec. 3(vii)(b) of the said Act. The said amended plaint was not refuted by the respondents by filing any additional written statement, and on the contrary the respondents had adopted the written statement filed by the original defendant tenant. Thus, there being no controversy raised by the respondents after the death of the original tenant till the suit was decided with regard to their being tenants within the meaning of Section 3(vii)(b) of the said Act, and being entitled to the protection of the said Act, there was no question of framing of any additional issue in that regard by the appellate Court.;