Ashok Kumar vs Ram Sevak on 28 July, 2025

Rajasthan High Court – Jaipur

Ashok Kumar vs Ram Sevak on 28 July, 2025

Author: Narendra Singh Dhaddha

Bench: Narendra Singh Dhaddha

[2025:RJ-JP:28096]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 284/2009

Ashok Kumar S/o Ram Bharosi, Gali Vidhi Chandra, Purana
Sahar, Dholpur
                                                            ----Appellant/Plaintiff
                                      Versus
Ramsewak S/o Gauri Shankar, Mohlla Khidki Talaya, Old City,
Dholpur
                                                    ----Respondent/Defendant

For Appellant(s)            :    Mr. Jai Prakash Gupta
                                 Mr. Vivek Goyal
For Respondent(s)           :    Mr. J K Moolchandani

HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment
Date of Judgment :: 28/07/2025

The civil second appeal has been filed by the appellant-

plaintiff (for short ‘the plaintiff’) against the judgment and decree

dated 10.02.2009 passed by the District Judge, Dholpur (for short

‘the first appellate Court’) in appeal No. 48/08 whereby the first

appellate Court while partly disallowing the appeal filed by the

plaintiff, set aside the judgment and decree dated 13.02.2006

passed by the Civil Judge (J.D.), Dholpur in civil suit No. 99/1999

to the extent of issues Nos. 1 to 5 only and maintained the

judgment and decree passed by the trial court qua rest of the

issues.

Brief facts of the case are that the plaintiff filed a suit against

the respondent-defendant (for short ‘the defendant’) for eviction of

the shop on the ground of default and for recovery of rent of Rs.

3,120/-. Prior to this suit, elder brother of the plaintiff- Shri

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Bhagwan ‘Karta’ of the family had filed a civil suit bearing No.

181/72 against the defendant on the ground of bona fide necessity

as well as default. In the said suit, defendant took the benefit of

Section 13-A of the Rent Control Act and admitted the first default.

On 25.02.1982, said suit came to an end by way of a compromise.

Thereafter, defendant again committed default in payment of rent

from 07.06.1991 in either tendering or paying the rent.

Defendant filed the written statement and denied the

averments made in the plaint and stated that the previous suit

came to be decided by way of a compromise on 25.02.1982.

Thereafter new tenancy was started and rent was settled at Rs.

65/- per month. In the previous suit, defendant was not held to be

the first defaulter. So, it cannot be said that he had got the benefit

of first default.

On the basis of pleadings of parties, the trial Court framed

the following issues:-

“1- vk;k izfroknh fookfnr nqdku esa oknh o mlds Hkkb;ksa dh vksj ls 15@& :i;s

izfrekg dk fdjk;snkj Fkk\
2- vk;k fookfnr nqdku oknh o mlds Hkkb;ksa ds e/; gq;s okgeh foHkktu ds oknh ds
fgLls esa vkbZ\
3- vk;k izfroknh oknh dk fdjk;snkj gks x;k\
4- vk;k izdj.k la- 181@72 esa gq;s jkthukek ds vuqlkj izfroknh 65@& :i;s
ekgokj dk fdjk;snkj oknh ds HkkbZ dk gqvk\
5- vk;k okge oknh o izfroknh Lokeh o fdjk;snkj dk lEcU/k dHkh LFkkfir ugha gqvk
;fn ,slk gS rks okn ij D;k izHkko gS\
6- vk;k okn Øekad 181@72 esa oknh i{kdkj ugha Fkk ,slk Fkk rks okn ij D;k
izHkko\

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7- vk;k izfroknh us fnukad 7-6-91 ls vkjaHk gksus okys eghus dk fdjk;k u rks oknh
ds vnk fd;k vkSj uk Vs.Mj fd;k bl izdkj ls izfroknh us fdjk;k vnk djus esa 6
ekg ls vf/kd dh pwd dh gS ;fn gka rks bldk izHkko\
8- vk;k oknh dh vksj ls iwoZorhZ okn la- 181@72 izLrqr fd;k Fkk mDr okn oknh us
/kkjk 13ih jkt- ifjlj fdjk;k fu;a=.k ,oa csn[kyh vf/kfu;e dk ykHk izkIr dj
pqdk gS izFke fMQkYV Lohdkj dj pqdk gS rFkk ;g f}rh; fMQkYV gS\
9- vk;k oknh ds izfroknh ds ftEes 36 ekg dk fdjk;k 2340@& :i;s cdk;k gS
ftls oknh izkIr djus dk vf/kdkjh gS\
10- vuqrks”k\”

To prove his case, plaintiff got himself examined as PW-1-

Ashok Kumar Bansal, got examined PW-2 Shri Bhagwan, PW-3

Trilok Kumar and got exhibited certain documents. The defendants

also got examined DW-1- Ramsewak and got exhibited certain

documents.

After hearing the parties, the trial Court vide judgment and

decree dated 13.02.2006, dismissed the suit filed by the plaintiff

on the ground of default.

Plaintiff challenged the said judgment and decree dated

13.02.2006 passed by the trial Court by filing an appeal and the

first appellate Court vide judgment and decree dated 10.02.2009

partly allowed the appeal filed by the plaintiff but dismissed the

appeal on the ground of eviction.

This court vide order dated 03.04.2019 admitted the appeal

on the following substantial question of law:-

“(1) Whether once the benefit under Section 13-A of
the Act is taken by the tenant and thereafter
commits default, is second default or nor?”

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Learned counsel for the plaintiff submits that the trial Court

as well as the first appellate court have committed an error in not

considering the second default committed by the defendant.

Learned counsel for the plaintiff further submits that previous suit

that was instituted by brother of the plaintiff was disposed of on

account of compromise between the parties on 25.02.1982. Said

suit was filed on the ground of default and defendant had paid the

rent. So, the defendant had got the benefit of Section 13-A of the

Act at that time. So, he was first defaulter and in the present suit,

he had also committed the default, which amounts to second

default but the trial Court as well as the first appellate Court had

committed an error in declaring him as the first defaulter. So, the

judgments passed by both the courts below are required to be set

aside on the ground of second default.

Learned counsel for the plaintiff has placed reliance upon the

following judgments:-

(1) ‘M/s Batlibai & Co. Ltd. Vs. Govind Narayan‘, reported in

19810 RLW (Raj.) 411

(2) ‘Himmat Mal Vs. Summati Roopchand’, reported in 1993

2 RLW (Raj.) 498.

Learned counsel for the defendant has opposed the

arguments advanced by counsel for the plaintiff and submitted

that the previous suit was decided on 25.02.1982 by way of a

compromise. A perusal of the aforesaid order does not reveal that

the benefit of first default was ever granted to the defendant. So,

the trial Court as well as the first appellate Court rightly came to

the conclusion that defendant had not committed second default in

the suit. So, the appeal filed by the plaintiff be dismissed.

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Learned counsel for the defendant has placed reliance upon

the following judgments:-

(1) ‘Kailash Chandra Vs. Shrikishan’, in F.B. Civil Reference

No. 13 of 1997, answered on 28.01.1998.

(2) ‘Pan Mal Vs. Gyanchand’ in civil second appeal No.

284/1968 decided on 09.10.1979.

I have considered the arguments advanced by counsel for the

plaintiff and counsel for the defendant.

It is an admitted position that the previous suit which was

filed by the brother of the plaintiff against the defendant on the

ground of necessity and default, was decided by way of a

compromise in which defendant had deposited the rent which was

due to him. Although the order dated 25.02.1982 does not reveal

any averment regarding the first default but it amounts to giving

the benefit of first default to the defendant. So, the plaintiff filed

the suit on the ground of second default but the trial Court as well

as the first appellate Court have committed an error in not

considering it as the second default. So, in my considered opinion,

appeal filed by the plaintiff deserves to be allowed on the ground

that defendant had committed the second default in paying the

rent. So, the judgments passed by the trial Court as well as the

first appellate Court qua eviction deserves to be quashed and set-

aside.

The civil second appeal filed by the plaintiff is allowed and the

judgment and decree dated 10.02.2009 passed by the appellate

court qua eviction as also the judgment and decree dated

13.02.2006 passed by the trial Court are set aside. The defendant

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is directed to hand over the vacant possession of the disputed

premises to the plaintiff within two months from today.

Pending application(s), if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J
Ritu/112

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