- (1.) The appellants have preferred this second appeal aggrieved by order dated 09.08.2012 passed by Civil Judge (Junior Division) Merta City, vide which the court has decreed the suit of the plaintiffs-respondents and order dated 10.05.2016 passed by Additional District Judge, Merta, whereby the appellate court partly allowed the appeal filed by the appellants, but upheld the decree of eviction on the ground of default.
(2.) It is contended by counsel for the appellants that the suit was filed on the ground of default and material alteration. The court below decreed the suit only on the ground of default and the appellate court has also upheld the decree on the ground of the defendant committing default. It is contended by counsel for the appellants that in the suit, rent was claimed from Magh Badi 1 Samwat 2053 and the period of default in the suit was mentioned as ten months sixteen days. The suit was filed on 01.12.1997. It is further contended that the appellant-defendant sent the rent by money order for the period from February, 1997 to May, 1997, but the same was refused by the landlord, and therefore, the appellant deposited the rent in court on 04.09.1997 and the same being valid tender and deposit, the decree passed by the court below is bad in law.
(3.) It is further contended by counsel for the appellants that since the rent was deposited prior to filing of the suit, there was no default and both the courts below have committed error in law in decreeing the suit on the ground of default. Counsel for the appellants has also drawn my attention towards Ex.20, which is money order receipt, wherein it is mentioned that the rent for the months of February, 1997 to May, 1997 Rs.2000/- is being sent. There is a note of refusal on the said receipt. Ex.21 is the receipt, vide which the amount was sent by money order.;