CSA -146/05 -LRs of Shri Sardar Shamsher Singh Vs. Smt. Kishni Devi & Anr. Judgment dt.25.2.09 1/3 S.B. CIVIL SECOND APPEAL NO.146/2005 LRs of Shri Sardar Shamsher Singh Vs. Smt. Kishni Devi & Anr. Date of Order : 25th February, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J. Gehlot for the appellant. Mr. O.P. Boob for the respondents. --------- 1. Learned counsel for the respondent-defendant had brought to the notice of the Court on last occasion on 4.2.2009 that the present appeal filed by the plaintiff-landlord has become infructuous because the plaintiff has also filed another suit seeking eviction of the defendant form the same suit premises in a fresh suit instituted by her in Rent Tribunal, Jodhpur namely Civil Suit No.16/2008. 2. According to the learned counsel for the respondent, the said suit is pending at the stage of plaintiff's evidence and, therefore, this second appeal against the earlier Suit No.86/2000 which was decreed by the learned trial court on 7.9.2001 but the appeal of the defendant was allowed by the learned first appellate court on 28.10.2003 and, therefore, the plaintiff has preferred this second appeal before this Court, has become infructuous. 3. On the side opposite, Mr. J. Gehlot, learned counsel CSA -146/05 -LRs of Shri Sardar Shamsher Singh Vs. Smt. Kishni Devi & Anr. Judgment dt.25.2.09 2/3 appearing for the plaintiff-appellant submits that the cause of action involved in the subsequent suit No.16/2008 is different and the parties are also different. He submits that earlier Rajendra Gaur was not made a party, who was landlord and only Smt. Kishni Devi wife of late Shri Raghunath Prasad and Sarwan Prashad S/o late Shri Raghunath Prasad were impleaded as party respondents. The ground of eviction taken in the suit out of which the present second appeal arises were default in payment of rent, personal bonafide need of the suit property and subletting by Mr. Rajendra Gaur alias Munna in favour of defendant Smt. Kishni Devi and Sarwan Prasad who are stated to be the relatives of said Rajendra Gaur. Learned counsel also submitted that since the parties are different and cause of action is also different, therefore, this appeal does not become infrcutuous. 4. In the opinion of this Court, there is no force in the submissions made by the learned counsel for the appellant-plaintiff. The very objection of the defendant that Rajendra Gaur was not made a party in the earlier suit appears to have been corrected by the plaintiffs in the subsequent suit filed by the plaintiffs. The said suit No.16/2008 submitted in the Rent Tribunal is by the plaintiff Smt. Chhotu Devi alias Sushil Kanwar w/o Shri Shamser Singhji whereas the defendants are Shri Rajender Gaur, Smt. Kishni Devi and Shri Sharvan Kumar Gaur. A perusal of the plaint produced by the learned counsel for the respondent before this Court also indicates that the CSA -146/05 -LRs of Shri Sardar Shamsher Singh Vs. Smt. Kishni Devi & Anr. Judgment dt.25.2.09 3/3 default in payment of rent as alleged in the said suit is for the period from 26.1.1997 to till date at the rate of Rs.250/- per month total to Rs.9,000/-. Besides this, the ground of subletting is also alleged in the said plaint by the defendant No.1, Rajendra Gaur in favour of the defendants No.2 and 3 Smt. Kishni Devi and Shri Sharvan Kumar Gaur respectively who are stated to be his mother-in-law and brother- in-law. Besides these two grounds, the ground of material alteration in the suit premises has also been alleged. Thus, it is clear that one of the plaintiffs, Smt. Chhota Devi alias Sushil Kanwar has again filed a suit for same cause of action before the Rent Tribunal under Section 9 of the New Rent Control Act, 2009. 5. Consequently, this second appeal filed by the plaintiff being aggrieved of the order of the first appellate court dated 28.10.2003 becomes infructuous. Accordingly, this appeal is dismissed as having become infructuous with liberty to the plaintiff to pursue her subsequent suit No.16/2008 filed before the Rent Tribunal Jodhpur. [ DR. VINEET KOTHARI ], J. item No.61 babulal/-