Peer Mohd. and Another vs Smt. Zetun

Milap Chandra, J.—This revision petition has been filed against the order of the learned Addl. Civil Judge No. 1 Jodhpur dated November 14, 1990 by which he did not permit the defendant petitioners to produce their evidence in rebuttal. The facts of the case giving rise to this revision petition may be summarised thus.

The plaintiff-non-petitioner has filed a suit for recovery of arrears of rent and ejectment on the grounds of defaults in payment of rent and bona fide necessity. The defendant-petitioners committed deaults in payment of rent and as such their defence was struck out by order dated April 15, 1989. The plaintiff produced her evidence and the defendants duly cross-examined her witnesses. The defendants have not been permitted to produce their evidence on the ground that their defence had stood struck out by the order dated April 15,1989.

It is contended by the learned Counsel for the defendant-petitioner that issue No. 4 has been framed to the effect that whether a part of the demised land measuring 13'' x 27'' is owned by Omar Khan (third person) and, if so, to what effect on the suit, the defendants want to produce their evidence on this issue and it is not covered under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. He relied upon Desraj Vs. Omprakash and Another,

In reply it is contended by the learned Counsel for the plaintiff-non petitioner that it is well settled law that in a suit for rent and ejectment the question of title is foreign and the issue No. 4 is not necessary for the decision of the suit. He further contended that the defendants are not at all entitled to lead any evidence after their defence was struck out. He relied upon Modula India Vs. Kamakshya Singh Deo,

It is the admitted case of the defendant-petitioners that the relationship of landlord and tenant exists in between the parties in espect of the suit premises, the order dated 15.4.1989 striking out the defence stands and no appeal or revision was filed against it. As such the question whether a part of the demised land measuring 13'' x 27'' is owned by Omar Khan (third person) is not at all necessary for the decision of the suit it is well-settled law that in a suit for rent and ejectment the question of title is foreign. It is not necessary to decide it. Reference of Haji Sharafat Hussain and Others Vs. Badri Bishal Dhandhania, may be made here. The question of the existence of the relationship of landlord and tenant in respect of the demised premises is only to be adjudicated, if disputed. It warf, therefore, not necessary to from the issue No. 4 in this case.

Even after the defence of the defendants is struck out u/s 13(5) of the Rnt Control Act, the defendants are entitled to lead evidence on issues which are not covered by the Act. Reference of Desraj Vs. Omprakash and Another, may be made here.

The plaintiff-non-petitioner may move an application before the trial court under Order XIV Rules 5, CPC for striking out the issue No. 4.

Consequently, the revision petition is allowed. The trial court will permit the defendants to produce evidence on issues which are not covered by the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. The trial court will also decide the application of the plaintiff-non-petitioner, if moved, under Order XIV Rule 5, CPC in accordance with law.