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2019 DIGILAW 207 (RAJ)

Ratan Lal S/o Shri Thakarmal v. Vinod Kumar S/o Shri Tilok Chand

2019-01-17

P.K.LOHRA

body2019
ORDER : 1. Appellant-defendant has preferred this second appeal aggrieved by impugned judgment & decree dated 05.01.2019 passed by Addl. District Judge, Bhadra, District Hanumangarh (for short, ‘first appellate Court’) dismissing his appeal against judgment and decree dated 23.05.2017, passed by Senior Civil Judge, Bhadra, District Hanumangarh (for short, ‘learned trial Court’), whereby the suit filed by respondent for eviction and recovery of rent against appellant was decreed. 2. Brief facts, giving rise to the present appeal, are that respondent-plaintiff filed a suit for eviction and recovery of rent against appellant-defendant stating that the suit property shop, situated in Purana Bazar, Bhadra, was taken on rent @ Rs.1225/- per month by appellant-defendant. The respondent-plaintiff in the plaint claimed unpaid rent of Rs.34,300/- from 01.04.2010 to 31.07.2010. It is averred that a notice terminating tenancy was given to the appellant but no reply to the same was given. 3. Written statement to the plaint was filed by appellant-defendant refuting the averments of plaint. It is averred by the appellant that shop in question was taken on rent from Tilokchand in the year 1991 @Rs.4500/- per annum and he regularly paid the rent. It is further averred that Tilokchand expired in the year 1993 and thereafter he tendered rent to his elder son Ashok Kumar by cheque for the period upto 31.03.2010. According to the appellant-defendant he was not aware of the partition taken place in the family of Tilokchand and though his wife and three sons were co-sharer in the suit shop, the rent was always received by elder son Ashok Kumar but later on he refused. Appellant-defendant challenged the validity of notice on the ground of same being sent only by one of the legal heirs of Tilokchand and shown his willingness to deposit due rent. 4. Learned trial Court, on the basis of pleadings of rival parties, framed issues for determination, and thereafter, the rival parties tendered ocular as well as documentary evidence. Learned trial Court, thereafter, proceeded to decide the issues and after appreciating the evidence available on record decreed the suit filed by respondent-plaintiff directing the defendant to vacate the shop in question within a period of two months and to handover possession with a direction to deposit due arrears of rent @Rs.1225/- per month from 01.04.2010 to 31.07.2012 and also mesne profit at the same rate thereafter. The judgment and decree passed by learned trial Court was challenged by way of appeal by appellant-defendant before the first appellate Court, which was dismissed affirming the judgment & decree passed by learned trial Court. 5. Learned counsel for the appellant-defendant, upon instructions, submits that the appellant-defendant is not pressing the appeal on merits but craving that a reasonable time may be granted to him to handover peaceful vacant possession of the suit shop. 6. Learned counsel for the respondent-landlord has very candidly accepted the proposal of learned counsel for the appellant to allow some time for vacating the rented premises. After thorough deliberations, learned counsel for the respondent-landlord has agreed to allow a reasonable time to the appellant to vacate the premises latest by 31st of July, 2020 subject to paying arrears of rent @Rs.1225/- and @Rs.2000/- as mesne profit from the date of judgment & decree dated 23.05.2017 uptil handing over vacant possession of the suit shop to respondent-plaintiff. 7. The aforesaid reasonable period to vacate the premises with mesne profit @Rs.2000/-per month from 23.05.2017 and payment of arrears of rent, is accepted by learned counsel for the appellant without any demure. 8. Accordingly, the present second appeal of the appellant-defendant is closed in terms of following conditions and directions:- (i) Appellant-defendant shall furnish a written undertaking in the trial Court within a month incorporating to hand-over vacant and peaceful possession of the suit property in dispute to the respondent-plaintiff on or before 31.07.2020 and shall also undertake not to cause any damage to it and shall also maintain the same as it is. (ii) Appellant-defendant shall pay mesne profit @Rs.2000/- per month from 23.05.2017 and will further continue to pay the same every month by 15th day of the next succeeding month, or in advance uptil vacant possession is handed over to the respondent-landlord. The arrears of rent/mesne profit, as determined by learned trial Court uptill its decision and enhanced mesne profit as determined by this Court w.e.f. decree passed by the learned trial Court i.e. 23.05.2017 shall also be paid by him within a period of four weeks from today and entire amount, including the amount already deposited on this account, will be disbursed to the respondent-plaintiff. (iii) Appellant-defendant shall further undertake that he will not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of anyone else and would not create any third party interest in the same during the aforesaid period and if he does so, the same will be treated as void. (iv) The respondent-plaintiff will furnish the details of bank account number in which the arrears of rent, mesne profit and regular mesne profit is now to be deposited. Arrears of rent and mesne profit is to be deposited by appellant-defendant within a period of four weeks from today. (v) On appellant-defendant furnishing the undertaking aforesaid and abiding by the terms and conditions of the order, respondent-plaintiff shall not execute the impugned decree till 31.07.2020. 9. The appellant shall submit a copy of the undertaking before this Court along with his affidavit. It is made clear that in case the appellant-defendant does not comply with any of the aforesaid conditions, then it will be open for the respondent-plaintiff to get the decree executed forthwith even before the aforesaid date, i.e., 31.07.2020, and the respondent-plaintiff may also initiate contempt proceedings in this Court against the appellant-defendant. 10. With the aforesaid terms, conditions and directions, the present second appeal of the appellant/defendant, stands disposed of accordingly. No costs. 11. A copy of this judgment be sent to the learned Courts below forthwith.