Gangadas Sadani vs Mohanlal and Another

J.P. Jain, J.—This second appeal is by one of the defendants. It arises in the following circumstances Gangadas and Jankidas are the tenants of Mohanlal, respondent No. 1. The subject matter of tenancy is a shop situated in the town of Bikaner and the rent payable was Rs. l4/- per month according to every Hindi calender month The plaintiff sued the defendants for their eviction from the suit shop after having determined the tenancy According to the plaintiff the rent had not been paid after Asadh Sudi 15, Samvat 2022. On the date of the suit the rent due was for 52 months. Another ground on which the eviction was sought was that the shop was required by the plaintiff for his son Dwarka Dass for starting his own business.

The suit was resisted by the defendants. It was alleged that the rent has been paid upto Asadh Sudi 15, Samvat 2026. The requirement of the plaintiff was also denied. The validity of the notice was also contested.

The learned Munsif Bikaner tried the case on various issues arising on the pleadings of the parties and decreed the plaintiff''s suit for eviction and for arrears of rent. The appeal on their behalf before the District Judge, Bikaner, was dismissed. It is this decree that has been challenged before me in second appeal.

Learned Counsel for the appellant bas in the first instance, argued that the defence against eviction was not right struck out by the trial court and they were accordingly deprived to lead their evidence in support of their contention The first date of hearing in this case was 6.4.70. The tenancy was not disputed, nor was a contest raised as regards the amount of rent on the first date of hearing. The learned Counsel pointed out that an application was made in the court of Munsif on 6.4.70 by the defendants that the rent be determined and as the trial court failed to determine the amount of rent their defence should not have been struck out u/s 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, hereinafter to be referred as ''the Act'', it is the duty of the tenant to calculate the rent and deposit the same on the first date of bearing. It the tenant raises a dispute it is open to him to make an application u/s 13(5) of the Act. I perused the application submitted by the defendants on 6-4-70 and I am unable to find that any dispute was ac all raised by the defendants as such the application could not have been read as an application u/s 13(5) The defendants deposited a suit of Rs. 850/- on 18-5-70 and another sum of Rs. 200/- was deposited on 14-9-70. Mr. Mundra has not been able to satisfy me that as to what was the amount due to the plaintiff on 6-4-70 and that he deposited the same on the first date of hearing as required by Section 13(4) of the Act. The written statement was submitted on 3-9-70. In that written statement the defendants for the first time pleaded that the rent was paid upto Asadh Sudi 15. Samvat 2026. This, of course, raises a contest within the meaning of Section 13(5) as it was not raised on the first date of hearing. In this situation the order passed by the learned trial court and upheld by the learned lower appellate court is correct when the defence of the defendants against eviction was struck cut There is no substance in this contention. It is accordingly ruled out.

Another contention that has been raised on behalf of the appellant is that the notice determining tenancy was not by an authorised person & the defendants did not receive the notice. There is evidence on record, that two notices one to Jankidas and the other to Gangadas were sent by registered post at their Calcutta address. Ex. 1 & Ex. 2 are the two postal receipts. Ex. 3 and Ex. 4 are the two acknowledgements showing the delivery of notices to the defendants. Ex. 5 is a copy of notice sent to them. Mohanlal P.W. 1 stated on oath that the notices were sent to the defendants by registered post acknowledgement due. They were addressed at the Calcutta address of the defendants. According to the plaintiff, the address mentioned on the registered letters was correct. On behalf of the tenants none of them appeared in the witness box to say that the notice was not received by them or any of them and the registered letter did not bear their correct address. In this view of the matter it cannot be accepted that the notices were not sent to the defendants and were not received by them.

As regards the contention that it was not issued by an authorised person it is sufficient to point out that the notice was given by Shri Puran Pratapsingh Advocate on behalf of the plaintiff. It has been so stated in the body of the notice. Original notice could not be produced as it was not in the possession of the plaintiff The copy of the notice Ex. 5 bears the signature of Shri Puran Pratapsingh. In view of fact that the defendants have not appeared in the witness box. I am unable to accept the contention. The two courts below have held that the notices issued on behalf of plaintiff were valid and they were received by the defendants. I find no force in this contention.

No other point was argued. In the result the appeal fails and it is hereby dismissed. There will be no order as to costs. The appellant is allowed six months time to surrender vacant possession of the suit shop.