SINGH, J. - (1.) HEARD learned counsel for the appellant and the respondent.
(2.) THIS appeal is directed against the judgment and decree dated 29. 05. 1982 passed by the Additional District Judge No. 1, Jodhpur in Civil Suit No. 22/77. By the impugned judgment and decree the claim for arrears of rent for the period 1. 5. 1974 to 26. 6. 1977 at the rate of Rs. 100/-per month, total Rs. 3602. 00 and mesne profit for the period from 27. 6. 1977 to 30. 5. 1981 at the rate of Rs. 100/-per month, total Rs. 4, 818/-was decreed. The plaintiff was also awarded cost of the suit in respect of the claim of Rs. 3, 682. 00. The decree for eviction was not passed because the possession of the suit property had been taken by the plaintiff on 30. 5. 1981 during pendency of the suit. Learned trial court did not pass any order regarding arrears of water charges and some rent. Hence, this appeal. The facts of the case which are necessary for the disposal of this appeal may be briefly stated as below. The plaintiff-appellant Shanti Mal filed suit in the court of learned District Judge, Jodhpur for arrears of rent and eviction. According to the averments made in the plaint, the plaintiff is the owner of a building known as Bhansali building situated in Jodhpur City and fully described in para 1 of the plaint. On 1. 1. 1969 the defendant took one flat of Bhansali building on rent of Rs. 100/-per month. In October, 1969, the defendant took one additional room on Rs. 50/-per month. On 30. 6. 1970 the defendant through her counsel sent a notice to the plaintiff informing him that the additional room which has been taken by her on rent of Rs. 50/-per month had been vacated by her and rent for the month of May, 1970 at the rate of Rs. 150/-and for the month of June, 1970 at the rate of Rs. 100/-was due. The plaintiff served two notices one on 17. 6. 70 and the other on 25. 1. 75 to the defendant terminating her tenancy. Ultimately, the plaintiff filed the suit for eviction as well as arrears of rent. The decree for eviction was sought on the ground of default in payment of rent for the period of more than six months as well as material alteration and damage caused to the building. The plaintiff also claimed for a decree for the following dues: (1) Arrears of rent for the period from May 1972 to June 1977 to the tune of Rs. 8, 650/ -. (2) Water charges of Rs. 554/- (3) Electricity charges Rs. 213/- (4) Meter rent Rs. 45. 50 Total Rs. 9,502. 50 It was also averred in the plaint that in her notice dated 30. 6. 1970 the defendant had acknowledged the rent which was due. It was also stated in the plaint that the defendant deposited a sum of Rs. 2,984/-in the court towards rent for the years 1970 to 1973 and the arrears of electricity and water charges. The application for deposit of above mentioned amount was allowed by the court but at the time of depositing the amount some mistake had been committed in writing the name of the plaintiff and, therefore, the court directed the amount deposited by the defendant to be refunded to her vide order dated 7. 6. 74. The defendant received back the amount which he had deposited in the court but did not pay the same to the plaintiff. It was also stated in the plaint that in her letter dated 14. 8. 75 addressed to Jodhpur University, the defendant admitted that she will have to pay the entire amount with interest after decision of the case. The plaintiff also claimed mesne profit at the rate of Rs. 200/-per month. In her written statement, the defendant stated that she had obtained the suit premises in the year 1964 on rent. She denied that she had caused any damage to the property and pleaded that whatever damage was caused to the building was on account of rains and other natural causes and the plaintiff had omitted to repair the building. Regarding the arrears of rent, electricity charges, water charges and meter rent, the defendant in her written statement pleaded that the plaintiff was entitled to recover only that rent which was within limitation. Regarding acknowledgment, the defendant pleaded that she did not acknowledge that any rent was due.
(3.) THE learned Additional District Judge has framed as many as 7 issues. In the present appeal, the appellant had challenged finding on issues Nos. 3 and 4 only. Issue No. 3 deals with the question whether the defendant is entitled to recover a sum of Rs. 9, 502. 50 in accordance with para 6 of the plaint. Issue No. 4 is related to the question whether the suit of the plaintiff was within limitation, for the reasons mentioned in para 7 of the plaint. It appears that while drafting issue No. 3, in place of "plaintiff", the word "defendant" was wrongly written by the learned Additional District Judge and, this mistake was not corrected even at the time of writing judgment. THE possession of the suit premises had been delivered by the defendant to the plaintiff on 30. 5. 1981. The learned Additional District Judge decided issues No. 3 and 4 together. It was contended before him that defendant had deposited arrears of rent under Sec. 19a of the Rajasthan (Control of Rent & Eviction) Act, 1950 and in her applications filed on 17. 5. 74 (Exhibits 9 and 10), it was mentioned that the plaintiff was entitled to receive the amount and this amounted to acknowledgment of the liability to pay arrears of rent. The learned Additional District Judge held that even if the application filed on 17. 5. 74 contained any acknowledgment of liability to pay arrears of rent, the suit for arrears of rent should have been filed upto 17. 5. 77 but it was not done and the suit was filed on 26. 7. 77 and, therefore, the plaintiff cannot take advantage of the acknowledgment made on 17. 5. 74. It was also contended before the learned Additional District Judge by the learned counsel for the respondent that the defendant had submitted application Ex. 7a in Jodhpur University for obtaining house rent allowance and in that application the defendant had stated that she was residing in a rental house and she knew that she will have to pay the rent along with interest after the case is decided and this statement in the application Ex. 7a amounted to acknowledgment of liability to pay the arrears of rent. The learned Additional District Judge held that Ex. 7a does not contain any acknowledgment of liability to pay the arrears of rent and, therefore, the plaintiff was not entitled to get any advantage so far as the limitation was concerned. The learned Additional District Judge held that claim for arrears of rent for the period from 1. 5. 74 to the date of institution was within limitation and was entitled to be decreed but the claim for arrears of rent for the period before 1. 5. 74 was barred by limitation. Consequently, the learned Additional District Judge did not pass any decree for arrears of rent for the period before 1. 5. 74. ;