Sangeet Lodha, J. - (1.) THIS second appeal is directed against judgment and decree dated 11.2.10 passed by the Additional District Judge (Fast Track) No. 4, Jodhpur in Civil Appeal Decree No. 19/08, whereby the first appeal preferred by the respondent -plaintiff, against the judgment and decree dated 16.2.06, passed by the Additional Civil Judge (S.D.) No. 2, Jodhpur, in Civil Suit No. 323/2000, has been allowed and accordingly, while setting aside the judgment and decree passed by the trial court as aforesaid, the suit for eviction preferred by the respondent -plaintiff, has been decreed. The order dated 16.4.13 passed by the Additional District Judge No. 5, Jodhpur Metropolitan City, dismissing the application preferred by the appellant -defendant, seeking review of judgment and decree dated 11.2.10 passed as aforesaid, is also impugned in the present appeal.
(2.) THE brief facts giving rise to the present appeal are summarised thus: (i) The plaintiff, a society registered under the Rajasthan Societies Registration Act, 1958, filed a suit for eviction and recovery of rent, against the defendant on 15.9.97 before the Additional Civil Judge (S.D.) No. 2, Jodhpur, which was later transferred to the court of Additional Civil Judge (S.D.) No. 3, Jodhpur. The premises in question, a shop, was let out by the plaintiff to the defendant's father -Hansraj. The premises was in possession of the Receiver and therefore, after the death of his father, the defendant continued to pay the rent to the Receiver. It was averred that vide order dated 31.10.96 passed by the court concerned, the services of the Receiver were brought to an end and the property was handed over to the plaintiff. According to the plaintiff, the defendant paid the rent upto the month of September, 1993 to the Receiver, but the rent due thereafter, was neither paid nor tendered to the Receiver or the plaintiff. That apart, the plaintiff averred that the premises is not being used by the defendant for a period of one and half years. Thus, the decree of eviction from the premises in question was sought against the defendant on the grounds; the default in payment of rent and non user of premises for a continuous period of more than six months immediately preceding the date of the suit, in terms of provisions of Section 13(1)(a) and 13(1) (j) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short "the Act of 1950"). (ii) The suit was contested by the defendant by filing a written statement thereto, taking the stand that the rent of the premises was being paid to the Tehsildar, the Receiver, who used to collect the rent and issue the receipts according to his convenience. According to the defendant, the rent of the premises was paid upto the month of March, 1996, however, the receipts were not issued by the Receiver. It was averred that the information regarding the services of the Receiver being brought to an end was never given to the defendant and therefore, he had no occasion to tender the rent to the defendant. Denying the allegation of non user of the premises, the defendant took the stand that the premises was being used as godown. That apart, an objection was taken by the defendant in terms that in absence of the legal heirs of late Shri Hansraj being impleaded as party defendants, the suit preferred is not maintainable. On the basis of the pleadings of the parties, the trial court framed the issues and parties led their evidence. After due consideration of the evidence on record and the rival submissions, the trial court vide judgment dated 16.2.06 decided the issue No. 1 regarding default in payment of rent in favour of the plaintiff and against the defendant. The issue No. 2 regarding non user of the premises for a period of six months preceding the date of the suit was decided in favour of the defendant and against the plaintiff. All other issues framed were decided against the defendant and in favour of the plaintiff. However, notwithstanding the issue No. 1 being decided in favour of the plaintiff, the suit seeking decree of eviction was dismissed by the trial court extending the benefit of first default in terms of the provisions of Section 13(6) of the Act of 1950 to the defendant.
(3.) AGGRIEVED by the judgment and decree passed by the trial court as aforesaid, the plaintiff preferred an appeal before the District Judge, Jodhpur, which was later transferred to the court of Additional District Judge (Fast Track) No. 4, Jodhpur.;