1 S.B. CIVIL SECOND APPEAL NO.131/1995 Pukhraj Suthar & Anr. Vs. Shri Lachhu & Ors. Date of Order :: 27th July 2010 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Arun Bhansali ) Mr.Ravi Bhansali ) for the appella nt. None present for the respondents. .... BY THE COURT The learned counsel Messrs Arun Bhansali and Ravi Bhansali holding the brief submit that they have no specific instructions from the appellants concerned; and that efforts were made by them to contact the appellants and for that matter even a messenger was sent but neither of the appellants was found at the given address. The learned counsel submit that they are not having the appellants' alternative address, whether of residence or of the place of business; and with these submissions plead no instructions. In an appropriate case, for the counsel pleading no instructions, this Court would have considered sending a notice to the appellants concerned to make arrangement for prosecution of the appeal, if so desired; but then, in view of the submissions made as noticed above and no alternative address being available on the record, sending of any notice to the appellants would only be an exercise in futility. In the given circumstances of this case, record has been examined and this Court finds no merit in this appeal. This civil second appeal was admitted for consideration on 17.07.1995 on the following substantial question of law:- 2 “(i) Whether the finding arrived at by the learned Additional District Judge No.2, Jodhpur that there was difference between pleadings and proof on the side of the appellants (defendants-respondents) on the fact with regard to receipt Ex.A 2 was in accordance with law.” The question aforesaid has been formulated in the background of the facts and circumstances that the plaintiff- respondent filed the suit for eviction and recovery of arrears of rent essentially on the allegations that the defendants had always been in default in payment of rent. It was submitted that the defendants were earlier extended the benefit of first default as per the provisions of the then existing Section 13 (7) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the first suit for eviction was decided on 03.12.1974; but even thereafter, the defendants had regularly committed default in payment of rent. The plaintiff also prayed for the decree for eviction on the grounds of reasonable and bona fide requirement, material alteration and nuisance. The learned Trial Court decided the material issues against the plaintiff and dismissed the suit. In relation to the ground of default, with reference to the evidence of the parties and particularly the documents Exhibits A/1 and A/2, the learned Trial Court deduced that the defendants made payment of the rent to the plaintiff and thereafter deposited the same in the Court and that it had been a case of due tender and payment of rent. The plaintiff filed the appeal against the judgment and decree of the Trial Court but questioned only the finding relating to the ground of default. The learned Appellate Court 3 did not agree with the considerations of the learned Trial Court, particularly in relation to the receipt Exhibit A/2. The learned Appellate Court observed that neither the case in relation to the said receipt was pleaded in the written statement nor the said receipt carried the signature of the plaintiff. The learned Appellate Court was of the view that Exhibit A/2 was an incomplete document and there was substantial variance in pleadings and proof on the part of the defendants. On appreciation of evidence on record, the learned Appellate Court found it to be a case of second default in payment of rent and accordingly, while allowing the appeal, decreed the suit for eviction. As noticed, this appeal has been admitted only on the question as to whether the Appellate Court was not right in observing that there was difference in pleadings and proof on the side of the defendants on the facts with regard to receipt Ex.A/2. Perusal of the pleadings and evidence by the parties makes it clear that the defendants have not taken specific averment on the facts regarding payment of rent under the receipt Ex.A/2 for a particular period. The substance of the matter remains that even for the sake of arguments, the said document Ex.A/2 is taken into consideration, it cannot be said to be a receipt for not bearing signatures of the plaintiff nor could be co-related with any specific period of due rent. From the submissions as made by the defendants, it is also apparent that after decision of the first suit and taking 4 benefit of first default, they never cared to make payment of rent within time. The defendants having been consistently in default, the case for eviction on the ground of default was clearly made out. Moreover, the case of being second default, there were no scope for extending any benefit to the defendants for the later deposit of the due rent in the Court. In view of the aforesaid, this Court is satisfied that the learned First Appellate Court has rightly allowed the appeal and has rightly decreed the suit filed by the plaintiff. As a result, this second appeal fails and is, therefore, dismissed. The respondents having not appeared, there shall be no orders as to costs. (DINESH MAHESHWARI), J. s.soni