JAIN, J. - (1.) HEARD learned counsel for the parties.
(2.) BRIEFLY stated the facts of the case are that plaintiff- appellant Nirmal Kumar Dugar filed a suit for eviction and recovery of arrears of rent in respect of rented premise, against defendant-respondent Bhanwar Lal alias Bhonri Lal on the grounds of default in making the payment of monthly rent and denial of title. During the pendency of the suit, the sole defendant Bhanwar Lal died and his legal heir i. e. his son Narendra Kumar Saini was substituted in his place. A notice of the application under Order 22 Rule 4 CPC was served upon the legal representative of deceased defendant but legal representative did not appear in spite of service of summon, therefore, ex-parte order was passed against him in the case. The plaintiff examined PW-1 Nirmal Kumar and PW-2 J. P. Saxena. The trial court recorded a finding that the defendant committed default in making the payment of rent but he is entitled to get the benefit of first default under sub-section (6) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (for short, 'the Act of 1950') therefore, no decree of eviction can be passed on the ground of default in making the payment of rent. So far as another ground i. e. denial of title is concerned, the counsel for the plaintiff did not press that issue before the trial court therefore no decree was passed on that ground also. The trial court decreed the suit of arrears of rent for a sum of Rs. 1,656/-, and further directed to pay the monthly rent at the rate of Rs. 46/- along-with interest at the rate of 6% per annum. Being aggrieved with the refusal to pass a decree of eviction on the ground of default, the plaintiff preferred an appeal before the first appellate court, who, vide its judgment and decree dated 31st May, 1999 allowed the appeal and set-aside the judgment and decree passed by the trial court and remanded the matter to the trial court with a direction to afford an opportunity to the defendant to file its written-statement and to both the parties to lead their evidence and to decide the matter afresh. The first appellate court was of the view that although the summon sent to legal representative under Order 22 Rule 4 CPC was served upon him but thereafter no summon of suit was served upon the defendant, therefore, the trial court committed an illegality in passing the decree of arrears of rent ex-parte against the defendant. Being aggrieved with the order of remand passed by the first appellate court, the plaintiff has preferred this miscellaneous appeal under Order 43 Rule 1 (u) read with Order 41 Rule 23a of the CPC. The learned counsel for the appellant contended that even as per the finding of the trial court as well as the first appellate court, it is clear that soon after the death of deceased defendant Bhanwar Lal, the application was filed for substitution of his legal representative and notice of that application was issued to his legal representative Narendra Kumar Saini and the same was served upon him but he failed to appear in response thereto. He contended that there was no necessity to give any fresh notice of the suit. He referred Form No. 6 of Appendix-B, CPC, related to Order 22 Rule 4 CPC wherein it is mentioned that in case the party concerned fails to appear then the suit will be heard and determined in his absence. He, therefore, contended that the first appellate court committed an illegality in setting-aside the judgment of the trial court only on this ground alone, therefore, the order of remand passed by the first appellate court be set-aside and the case be remitted back to the first appellate court to decide the appeal on merits.
(3.) THE learned counsel for the respondent contended that although a copy of summon under Order 22 Rule 4 CPC was served upon the defendant but a copy of the application was not sent which is clear from the postal receipt available on the file. He pointed out that only Rs. 8/- was paid towards postal registration charges and a presumption should be drawn that copy of the application was not sent and only a summon was sent. He contended that although the first appellate court has not considered this aspect of the matter but he has a right to defend the order of the first appellate court under Order 41 Rule 33 CPC on other grounds also. I have considered the submissions of learned counsel for the parties and examined the impugned judgments passed by both the courts below. The plaintiff-appellant filed a suit for eviction and recovery of arrears of rent in the trial court. The sole defendant died during the pendency of the suit and an application under Order 22 Rule 4 CPC was filed. A notice of that application was issued to his legal representative, (respondent herein), but, in spite of service thereof, he failed to appear, therefore, the trial court passed ex-parte order and examined the plaintiff's witnesses. The counsel for the plaintiff did not press the ground of denial of title. So far as default in making the payment of rent is concerned, the trial court recorded a finding that the defendant has committed a default but it gave the benefit of first default under sub-section (6) of Section 13 of the Act of 1950, to the defendant, therefore, no decree of eviction was passed by the trial court, and only a decree of arrears of rent was passed. ;