S.B. CIVIL SECOND APPEAL No. 245 of 2005 · Rajasthan High Court

Mr. Sunil Kumar Singodiya, for the appellant. Mr. Yaspal Garg, for the respondent. -- This civil second appeal under Section 100, CPC is preferred by the defendant-appellant against the judgment and decree dated 06.10.2004 passed by Additional District Judge, No.9, Jaipur City, Jaipur in Civil Regular Appeal No.2/2003 (13/2003), by which the first appellate Court dismissed the appeal filed by the appellant- defendant and upheld the judgment and decree dated

11.12.2002 passed by Additional Civil Judge (Sr. Division) No.3, Jaipur City, Jaipur, by which the suit for eviction from the shop in question and recovery of rent filed by the plaintiff-respondent has been decreed. Learned Counsel for the appellant at this stage submits that the appellant do not wish to press this second appeal on merits and would be satisfied if some reasonable time to vacate the shop in question i.e., two years time may be allowed for vacating the disputed shop and handover the possession of the shop to plaintiff- respondent. Although, the request of the (2) appellants has not been opposed by learned Counsel for the respondent-plaintiff but the time as prayed by the appellant-defendant is opposed. It is contended that six months time is sufficient to vacate the shop in question and handover the possession of the same to plaintiff-respondent. Learned Counsel for the appellant-defendant undertakes that the appellant will hand over the vacant possession of the shop in question within one year from the date of passing of this judgment to plaintiff-respondent.

In the facts and circumstances and considering the submissions advanced by the learned Counsel for the respective parties on allowing time to appellant to handover the vacant possession of the shop to plaintiff-respondents, it is hereby ordered that the decree shall not be executed by the respondent-plaintiff against the defendant- appellant up to one year from the date of passing of this judgment on the condition that the appellant submit an undertaking that he would handover vacant and peaceful possession of the disputed shop on or before completion of one year to the respondent-decree-holder. The said undertaking be submitted before the trial Court within a period of four weeks from the date of receipt of certified copy of this judgment. The appellant would further ensure that at the time of submissions of undertaking that all the arrears of rent have paid/deposited and would further submit proof of payment/deposit of rent.

It is also made clear that in case of appellant (3) fails to comply with any of the aforesaid conditions within the time allowed, it would be open for the respondent-decree holder to execute the decree forthwith. In case the appellant failed to make payment of arrear of rent, if any, the appellant has to pay interest @ 9% on the arrear of rent. The undertaking shall contain stipulation that the appellant shall not sublet, assign or part with the possession of the shop in dispute during the said period, which is for one year and would not create any third party interest therein. In the result, the present second appeal stands disposed of. The interim order dated

06.05.2005 stands vacated. The stay application also stands rejected. (K.S. RATHORE), J. DJ/- 20