MILAP CHANDRA JAIN, J. - (1.) THIS revision petition has been filed against the order of the learned Additional Civil Judge No. 3, Udaipur dated February 2, 1994 by which he has rejected the application of the plaintiff-petitioner for closing the evidence of the defendant-non-petitioner.
(2.) THE facts of the case giving rise to this revision petition may be summarised thus, the plaintiff-petitioner filed a suit for the recovery of arrears of rent and ejectment against the defendant-non-petitioner. The amounts of rent and interest were determined under Section 13 (3), Rajasthan Premises (Control of Rent and Ejectment) Act, 1950. The defendant failed to deposit the rent and its defence was struck out. An application was moved by the plaintiff for closing the evidence of the defendant in pursuance of the order striking out its defence. After hearing the learned counsel for the parties, the trial Court permitted the defendant to produce its evidence on Issue No. 5 and dismissed the plaintiff's application. It has been contended by the learned counsel for the plaintiff-petitioner that the learned trial court seriously erred to pass the impugned order, the defendant had no right to produce its evidence after its defence was struck out and the trial court should have closed the defendant's evidence. He relied upon Modula India v. Kamakshya Singh Deo, 1989(2) RCR 530 (SC) : AIR 1989 SC 162 and Ramesh Chand Pandey v. Babulal, 1993 (1) WLC 610.
(3.) IT appears from the impugned order that the defendant-non-petitioner has denied the relationship of landlord and tenant in between the parties and as a result thereof Issue No. 5 has been framed to the effect whether the relationship of landlord and tenant exist in between the parties? By the impugned order the trial court has permitted the defendant to produce its evidence on this issue. It has been observed in Modula India v. Kamakshya Singh Deo, A.I.R. 1989 SC 162 at page 170 para 11 (end) as follows :- "In either view of the matter there is no escape for the defendant in this case that his entire defence in the suit was in his capacity as a tenant and on its striking out it was struck out as a whole." In the instant case the position is just contrary. The defendant-non-petitioner has denied the relationship of landlord and tenant in between it and the plaintiff. Under this special circumstance the learned trial court has allowed the defendant to produce its evidence. In Ramesh Chandra Pandey v. Babulal, 1993 (1) WLC 610, conflict of opinion prevailing in this court on this point has been referred to the larger Bench. The plaintiff-petitioner has failed to show as to how the impugned order is going to occasion in failure of justice or would cause irreparable injury to him. In a suit for ejectment, the initial burden is upon the plaintiff of prove his case by producing his evidence. It has been observed in MMB Catholicos v. M.P. Athanasius, A.I.R. 1954 SC 526 as follows :- "It is well established that the plaintiff in an ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendant's title, in the absence of establishment of his own title carries the plaintiff nowhere." Reference of Brahmanand Puri v. Neki Puri, A.I.R. 1965 SC 1505 at page 1508 para 8 may also be made here. Thus there is no force in the revision petition.;