DR.VINEET KOTHARI,J. - (1.) HEARD the learned counsels for the parties.
(2.) THIS second appeal of the defendant - tenant is directed against the judgment of the first appellate court dated 21.10.2008 whereby the first appellate court allowed the appeal of the plaintiff - landlord which was filed by the plaintiff against the judgment of the learned trial Court dated 23.1.2004 refusing the decree of eviction of the suit premises on the ground of first default under Section 13(1)(a) of the Act. The learned first appellate Court however found that merely on account of dismissal of the suit for want of prosecution, it could not be said that the defendant had not availed the benefit of first default during the course of first suit under Section 13(6) of the Act and therefore, since the defendant again did not pay any rent for the period from 19.4.1981 to 19.3.1997, the defendant had committed second default and therefore, the eviction decree was bound to be passed. The first appellate Court also found that even though the issue was not framed in this regard, but since in the written statement, the defendant had denied title of the plaintiff and which denial has not been waived by the plaintiff - respondent, therefore that also was a ground of eviction. Besides this, the first appellate Court also decided the issue relating to subletting in favour of the plaintiff on the basis of evidence that the suit premises has been sublet by the defendant in favour of one Om Prakash as the defendant had shifted his business to Hissar (Haryana), whereas the suit premises, a residential house is situated in Bhadra (Rajasthan). The first appellate Court found that the defendant had shifted his business and even his ration card was made at his Hissar address and his name was included in the voters' list at Hissar and these suggestions were not denied by the defendants' witnesses in the cross-examination and therefore on the ground of subletting, denial of title, as well as default, the first appellate Court, reversing the findings of the learned trial Court passed eviction decree. Being aggrieved by the same, the defendant has approached this Court by way of present second appeal.
(3.) MR . R.S. Chaudhary, learned counsel appearing for the appellant - defendant relying upon the decision of the Hon'ble Supreme Court in the case of Ram Niwas v. Malik Mahboob Ali, reported in 1991(2) RCR(Rent) 496 : AIR 1991 SC 1088 submitted that since the earlier suit of the plaintiff was dismissed for non-prosecution, therefore, the default in the present suit was only first default and therefore, the first appellate Court was not justified in passing eviction decree treating the same as second default. He relied upon para 10 of the judgment, which is reproduced hereunder: "10. Mr. Lodha has referred to us various decisions of the High Court of Rajasthan where earlier suits had been relied upon for the purpose of considering the applicability of the proviso to sub-section (6) of Section 13 of the Act. But those are cases where the earlier suits had been disposed of not for non-prosecution, but on the ground of payment of arrears. Subsequent defaults naturally attracted the proviso to sub-section (6) of Section 13 of the Act. Mr. Lodha's argument on the point, therefore, is of no help on the facts of this case." ;