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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. Civil Second Appeal No.214/2009.
(Madan Lal Vs. Bhupender Singh)
DATE OF JUDGMENT : September 07, 2009.
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Reportable
Mr. C.P. Soni for the appellant.
Mr. J.R. Patel for the respondent.
BY THE COURT :
In this second appeal, the judgment and decree
dated 02.03.2009 passed by the Addl. District Judge
(Fast Track) No.4, Jodhpur in Civil Appeal decree
No.96/08 is under challenge, whereby, the learned
lower appellate Court while dismissing the appeal
affirmed the judgment and decree dated 26.02.2005
passed by Addl. Civil Judge (Jr. Dn.) No.5, Jodhpur in
Civil Original Case No.16/98, by which, the appellant-
tenant has been ordered to be evicted from the
premises in question.
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According to brief facts of the case, respondent-
landlord preferred suit for eviction and recovery of
arrears of rent in the year 1998 with assertion that he
was allotted plot by the U.I.T., Jodhpur and he is sole
owner of the said plot upon which he has constructed a
house, situated at Baiji-ka-Talab, near Ramdeoji Temple
and said house was given on rent to the appellant-
defendant under rent-deed dated 31.01.1976. Suit
was filed on the basis of default as well as on the
ground of bona fide necessity and comparative
hardship. Learned trial Court framed as many as nine
issues and after framing the issues, statements of five
prosecution witnesses were recorded and no evidence
was produced by the appellant-defendant inspite of
granting enough time. Upon adjudication of the issues,
the trial Court decreed the suit in favour of the
respondent-plaintiff, by which, decree for eviction and
recovery of rent was passed on 26.02.2005. Said
judgment of the trial Court was challenged by the
appellant-defendant before the District Judge, Jodhpur
by way of filing appeal which was transferred to the
Court of Addl. District Judge (Fast Track) No.4, Jodhpur.
Learned lower appellate Court while dismissing the
appeal affirmed the judgment and decree dated
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26.02.2005 vide judgment dated 02.03.2009.
The present appeal has been filed by the
defendant-tenant on the ground that though the
appellant specifically pleaded that the rent-deed Ex.-3 is
not properly stamped and the same is not a registered
document, therefore, the said rent-deed is not
admissible in evidence, the learned trial Court has,
however, not looked into the provisions of Stamp Act,
therefore, judgments rendered by both the Courts
below deserve to be quashed. As per learned counsel
for the appellant, the rent-deed being not properly
stamped and unregistered document is inadmissible in
evidence but the learned trial Court wrongly dismissed
the application of the defendant for raising said
objection and wrongly arrived at the finding that the
rent-deed is not inadmissible in law.
Learned counsel for the appellant further argued
that the trial Court as well as lower appellate Court has
failed to take into consideration the aspect principles of
natural justice. As per learned counsel for the
appellant, the appellant has not been granted sufficient
opportunity of leading evidence in his defence. It is
contended that before the trial Court opportunity was
sought by the defendant on the ground that his counsel
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was out of town on 23.11.2004 due to marriage of his
daughter’s daughter. Learned trial Court however
granted only two days’ time and matter was ordered to
be fixed on 25.11.2004. Thereafter, opportunity to
lead evidence in defence was closed. Therefore, in a
hasty manner the trial Court decided the case which is
against the principles of natural justice.
I have perused the judgment of the trial Court as
well as judgment passed by the learned lower appellate
Court.
It is very strange that before the trial Court the
plea of the appellant was that the rent-deed is forged
one but no evidence was produced before the trial Court
to substantiate the plea of fabrication of the document.
So also, no efforts were made to prove the contention
before the trial Court. Therefore, it appears that a
baseless plea was taken before the trial Court by the
appellant-tenant which is rightly discredited by the trial
Court because no evidence whatsoever was produced
by the appellant-defendant.
Similarly, on the ground of bona fide necessity,
the appellant failed to produce any evidence on record
in his defence inspite of granting ample opportunity,
then, obviously he cannot be permitted to raise any
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objection with regard to finding of fact at this stage.
Therefore, the finding of fact arrived at by the Courts
below does not require interference. So also, no
substantial question of law emerges in this second
appeal for consideration.
The other ground with regard to admissibility of
unregistered rent-deed was rejected by the trial Court
vide order dated 26.08.2004 by speaking order which is
not challenged by the appellant. Therefore, the ground
raised by the appellant now in this appeal is not
tenable.
In this view of the matter, there is no ground for
interference. Consequently, this second appeal is
hereby dismissed.
However, learned counsel for the appellant prayed
that some time may be granted to the appellant to
vacate the premises in question. In my opinion, the
prayer made by learned counsel for the appellant is
genuine, therefore, six months’ time is hereby allowed
to vacate the premises and to hand over vacant
possession of the premises in question to the
respondent-plaintiff, upon the condition further that the
appellant shall furnish undertaking before the trial Court
that he will give vacant possession of the premises in
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question by 31st March, 2010 and, so also, he shall
deposit the amount decreed by the trial Court within
one month and shall continue to pay mesne profits
month by month till handing over vacant possession to
the respondent-plaintiff. It is made clear that if the
appellant will not furnish the above undertaking and/or
fails to deposit the amount as ordered above within one
month from today, then, appropriate contempt
proceedings shall be initiated against him.
(Gopal Krishan Vyas) J.
Ojha, a.