SINGH, J. - (1.) IN this writ petition the petitioner has challenged the order Annexure-6 dated 17. 7. 2004. The grievance of the petitioner is that his application under Order 7 Rule 11 CPC based on the ground that in the earlier suit No. 25/1985 filed by the non-petitioner plaintiff a decree for redemption of mortgage and possession of property in dispute had been prayed for an vide judgment and decree dated 30. 5. 2000, the decree for redemption for mortgage had been passed, however, the decree for possession has not been passed on the ground that petitioner was the original tenant of the mortgagor of the property in dispute which is the plaintiff-non-petitioner herein and as such on redemption of mortgage, the tenant continued to be the tenant and could not be evicted save in accordance with Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It is contended in the application that present suit which has been filed for eviction is based on the grounds under Section 13 of the Act of 1950 is not maintainable since the non-petitioner has already prayed for possession of the property in earlier suit numbered 25/1985.
(2.) ANOTHER application was filed under Section 151 CPC wherein the defendant prayed that he may be permitted to file certified copies of the rent receipts, the originals of which have been filed in the earlier suit No. 25/1985 and photostat copies of which have been filed along with the written statement. The said application was refused by the learned trial Court. The third application which was filed is for modification of the issue that the rate of rent was not Rs. 1,100/- per month, as alleged by the plaintiff, but Rs. 100/-, as has already been determined in the earlier suit. So far as the first application under Order 7 Rule 11 CPC is concerned, having perused the order passed by the learned trial Court and has been heard learned counsel for the parties, I am of the view that the said application has rightly been dismissed by the learned trial Court. The petitioner has taken a plea that he cannot be evicted without satisfying the grounds mentioned in Section 13 of the Act of 1950 and, therefore, the non-petitioner- plaintiff has filed the eviction, application based upon the aforesaid grounds, as such, no exception can be taken. The impugned order rejecting the application under Order 7 Rule 11 CPC calls for no interference 4. So far as second application for taking on record certain copies of the rent receipts which have been filed in the earlier suit No. 25/1985 is concerned, learned counsel appearing on behalf of the non-petitioner-plaintiff does not seriously opposed the same. Consequently, the order passed by the learned trial Court dismissing the application under Section 151 CPC for producing the rent receipts is set aside. The documents which were filed along with the said application under Section 151 CPC which are the certified copies of the rent receipt are allowed to be taken on record. So far as third application for amendment of issue is concerned, there is no plea with regard to the plea of res judicata taken by the petitioner. The issue which has been struck and which has been reproduced at para 4 at page 6 of the writ petition is concerned, the plaintiff has alleged that rate of rent was Rs. 1,100/- per month and it would be for the plaintiff to satisfy the court regarding the aforesaid issue and the parties can led the evidence whichever is available with them as to whether rate of rent was not Rs. 1,100/- but only Rs. 100/ -. In that view of the matter, there is no necessity for the court to amend the issue. The application filed by the petitioner for amendment of issue has rightly been dismissed by the learned trial Court and the order passed by the learned trial Court refusing the same does not call for any interference.
(3.) IN view of the aforesaid, this writ petition is disposed of, as indicated above whereby the order dated 17. 7. 2004 passed by the learned trial Court is upheld except on the application under Section 151 CPC which stands modified. The petitioners would be allowed to produce the certified copies of the rent receipts which would be taken on record. The writ petition is consequently disposed of. The stay order stands vacated and the stay application is also disposed of. .;