Rajasthan High Court - Jodhpur
Shyam Mahatma @ Shyam Sunder vs Babu Khan on 20 February, 2009
Equivalent citations: AIR 2009 (NOC) 1593 (RAJ.)
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
Shyam Mahatma vs. Shri Babu Khan
S.B.CIVIL SECOND APPEAL NO.269/2008
DATE OF JUDGMENT : 20/2/2009
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
Mr.C.S.Kotwani, for the appellant.
Mr.Vikas Balia, for the respondent.
REPORTABLE
BY THE COURT:
1. This second appeal has been filed by defendant-tenant under Section 100 CPC being aggrieved by the judgment and decree of eviction passed by the first appellate court on 4/7/2008 while allowing the appeal no.79/2005 of plaintiff landlord as the learned trial court had dismissed the suit filed by plaintiff landlord seeking eviction on 4/2/2005.
2. The plaintiff respondent sought the eviction of the suit shop on the ground of default in payment of rent as well as personal bonafide 2/15 need of the plaintiff for his son - Mohd. Sharif for carrying on his business of sale of cattle feed as the market has shops of such nature and defendant himself was carrying on the business of cattle feed.
3. The learned trial court dismissed the suit of plaintiff-landlord on the ground that there was no default in payment of rent as the tenancy was on year to year basis vide Ex.A-1 to A-4 rent receipts produced by the defendant tenant which established the payment of rent on annual basis to the plaintiff and, therefore, the default of six months as required under Section 13(1)(a) of the Act of 1950 was not established. Regarding personal bonafide necessity, the learned trial court found that plaintiff had two other shops also for which he had filed eviction suit and since the son for whom the said shop was claimed by the plaintiff landlord was running a car taxi and, therefore, had to remain mostly out of Bikaner and, therefore, there was no bonafide need for the plaintiff landlord to claim eviction of the suit shop in question and plaintiff himself was doing the work as a contractor. Thus, both the issues were decided against the plaintiff.
4. The first appellate court, however, reversed these findings and held that there was no yearly lease in favour of the defendant tenant 3/15 as the yearly lease of immovable property could not be there as per Section 107 of Transfer of Property Act without such contract or such lease being registered with the competent authority. The appellate Court for the said finding relied upon the decision of Hon'ble Supreme court in the case of Samir Mukherjee vs. Davinder K. Bajaj
- AIR 2001 SC 1696 and two other judgments of Allahabad High Court and Kerala High Court respectively in para no.10 of its judgment. The first appellate Court, therefore, held that the tenancy was on month to month basis and since the rent was not paid by the appellant defendant after 1.4.1996 upto the date when the present suit was filed on 9/4/1997, a default of more than six months had occurred and since during the pendency of suit the second default had also occurred, the defendant was not entitled to protection of first default as provided under Section 13(6) of the Act. The learned appellate Court also noticed that on 23/7/2004 the trial court had struck off the defence of defendant upon an application under Section 13(5) of the Act filed by the plaintiff-landlord and said order dated 23/7/2004 was not challenged by the defendant and, therefore, the eviction decree was liable to be passed on the ground of default.
On issue no.2 and 3 about the personal bonafide need of the plaintiff for his son to carry on his business, the learned first appellate 4/15 court held that merely because plaintiff's son Mohd. Sharif was running a car taxi which was registered in his own name, it was not enough to hold that plaintiff could not have personal bonafide need for his business. He could always arrange funds by selling his car taxi to start his business of cattle feed. Thus, the learned appellate court held that the personal bonafide need was established by the plaintiff landlord and he was entitled to a decree of eviction. Being aggrieved by the said decision of first appellate court the defendant tenant had approached this Court by way of present second appeal.
5. Mr.C.S.Kotwani, learned counsel for the appellant vehemently submitted that the first appellate court has erred in reversing the well reasoned findings of trial court on the ground of default in payment of rent as well as on the ground of personal bonafide need of the plaintiff's son. He submitted that since the tenancy was on year to year basis there was no question of second default for the alleged non-payment of rent for the period 1.4.1996 to 31.3.1997 in the present suit filed by the plaintiff on 9/4/1997. He submitted that total period of six months was required to be passed before the same could be said to be default under Section 13(1) (a) of the Act. He also submitted that in ground (H) of the present memo of appeal he has 5/15 challenged the order of trial court dated 23/7/2004 striking off the defence under Section 13(5) of the Act. He, therefore, submitted that substantial question of law as suggested in the memo of appeal do arise in the present second appeal and the appeal deserves to be admitted and eviction of defendant from the suit shop deserves to be stayed. He relied upon the following judgments in support of his submissions: (i) Dhan Raj vs. Brijesh Kumar - 2002 (2) CDR 1927 (Raj.), (ii) Ashok Kumar vs. Om Prakash - 2000 (3) R.L.R. 173 &
(iii) Chetan Das vs. Annusiya - 1995 (2) R.L.R. 7.
6. On the strength of these three judgments of learned Single Judge of this Court, Mr. C.S.Kotwani submitted that there was waiver on the part of plaintiff landlord who withdrew the rent deposited by the defendant in the court and, therefore, neither the defence could be struck off under Section 13(5) nor a decree of eviction could be passed against the defendant as he was ready and willing to pay the rent in question.
7. Here it may be stated that all these three judgments were rendered by respective learned Single Judges of this Court prior to the decision of Hon'ble Supreme Court in the case of Nasiruddin and 6/15 others v. Sita Ram Agrawal, 2003 (1) WLC (SC) 293 : 2003 DNJ (SC) 180 in which the Hon'ble Supreme Court dealing with the provisions of Rajathan Rent Control Act 1950 held that the Court has no power to extend the time limit for payment of rent determined under Section 13(3) of the Act and, therefore, the provisions of Section 13(3) and 13(4) were mandatory and the strict compliance therewith was necessary. It will be appropriate here to quote para no.36, 37 and 41 to 48 of the aforesaid judgment as under:
"36. In a case where the statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. In E.Palanisamy vs.Palanisamy (Dead) by Lrs. & Ors, (2003) 1 SCC 122, a Division Bench of this Court observed:-
"........The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters....."7/15
37. It is also pertinent to note that the Rent Control Act is a welfare legislation not entirely beneficial enactment for the tenant but also for the benefit of landlord. (See: Shri Lakshmi Venkateshwara Enterprises Pvt. Ltd. vs. Syeda Vajhiunnissa Begum (Smt.) & Ors. (1994) 2 SCC 671). In that view of the matter, balance has to be struck while interpreting the provisions of the Rent Act.
8. Then in para 41 to 47 the Hon'ble Apex Court dealing with the provisions of Rajasthan Act itself held that Section 5 of the Limitation Act does not apply for extension of time under Section 13 (4) of the Act, therefore, no such extension was possible beyond the period prescribed under the Act.
41. Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the Court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so.
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42. In that view of the matter it must be held that in absence of such provisions in the present Act the court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.
43. Coming to the second question, we are of the view that Sec.5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant u/s.13(4) of the Act.
44. It is true that Rajasthan Act does not expressly exclude the application of Limitation Act. But Sec.5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant.
45. Section 5 of the Limitation Act reads under:-
"5.Extention of prescribed period in certain cases.-Any appeal or any application, other than an application under any of the provisions of O.XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
46. On perusal of the said Section it is evident that 9/15 the question of application of Sec.5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfied the court hat he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction o the ground set forth in Cl.(a) of sub-sec.(1) the tenant shall on the first date of hearing or on or before such date, the Court may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in Court as determined under sub-sec. (3) from the date of such determination or within such further time not exceeding three months as may be extended by the Court. Thus, sub-section(4) itself provides for limitation of a specified period within which the deposit has to be made, which cannot be exceeding three months as extended by this Court.
47. The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Sec.5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Sec.5 cannot be extended where the default takes place in complying with an order under sub-sec.(4) of Sec.13 of the Act.
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9. About the need to comply with the order passed by the Court of Law, Apex Court observed in para 48 of the judgment that compliance of the order passed by the Court of Law in terms of statutory provisions does not give rise to cause of action and the failure to comply with the order, the consequences have to follow. Relevant part of para 48 is as under:-
"48. ..........Compliance of an order passed by a Court of Law in terms of a statutory provision does not give rise to a cause of action. Failure to comply with an order passed by a Court of Law instant consequences are provided for under the Statute. The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that Sec.5 of the Limitation Act, 1963 has no application in the instant case."
10. In view of the aforesaid legal position now obtaining, the judgments relied upon by the learned counsel for the appellant defendant are of no avail to the defendant. There is no question of waiver on the part of landlord on the delayed deposit of rent in question and withdrawal thereof by the landlord. Once the delay has 11/15 occurred even the Court does not have power to extend the time limit, therefore, act of withdrawal of such rent belatedly deposited by the tenant cannot enure to the benefit of defendant tenant.
11. The contention of learned counsel that he has also challenged the order dated 23/7/2004 striking off the defence under Section 13 (5) of the Act in ground (H) of the memo appeal is also incorrect. The said ground (H) in the memo of appeal merely stipulates that the first appellate court has erred in arriving at the conclusion that the defence against eviction was struck down, whereas, the humble defendant was required to be given the benefit of first default as is available as per the Rajasthan Rent Control Act, 1950. Therefore, such findings are vitiated. The said ground (H) does not even refer to the order dated 23/7/2004 much less raising any ground for attacking the said order. The order dated 23/7/2004 was never challenged independently nor in this second appeal specifically. Once the order striking off the defence of defendant under Section 13(5) of the Act has become final, the findings of the learned trial court that there was second default on the part of defendant can hardly be challenged by the defendant as the defendant obviously failed to establish before the court below that there was no such default.
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12. The appellate court also appears to be justified in holding that there was no yearly tenancy in the present case as there was no such instrument of yearly tenancy registered as per the provisions of Section 107 of Transfer of Property Act. It would be appropriate to reproduce the relevant observations of the Supreme Court in case of Samir Mukherjee vs. Davinder K. Bajaj (supra):-
"Under S.107 parties have an option to enter into a lease in respect of an immovable property either for a term less than a year or from year to year, for any term exceeding on year or reserving a yearly rent, such a lease has to be only by a registered instrument. In absence of a registered instrument no valid lease from year to year or for a term exceeding one year or reserving a yearly rent can be created. If the lease is not a valid lease within the meaning of the opening words of S.106 the rule of construction embodied therein would not be attracted. S.106 lays down a rule of construction which is to be applied when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. What this section does is to prescribe the duration of the period of different kinds of leases by legal fiction - leases for agricultural or manufacturing purposes shall be deemed to be lease from year to year and all other leases shall be deemed to be from month to month. Existence of a valid lease is a pre-requisite to invoke the rule of construction embodied in S.106 of Transfer of Property Act."
13. The other High Court judgments relied upon by the first 13/15 appellate court are also to the same effect, therefore, the first appellate court cannot be said to have committed any error in holding that the tenancy in question was on month to month basis and, therefore, default of six months in payment of rent occurred and it being a second default for the period 1.4.1996 to 31/3/197 the defendant was not entitled to protection of first default under Section 13(6) of the Act of 1950.
14. So far as question of personal bonafide need of the landlord or his son is concerned, it is needless to say that these findings are findings of fact and same cannot be said to be perverse in any manner. It is well settled by now by catena of judgments of Supreme Court and this Court that landlord is the best judge of his own need and a tenant cannot dictate terms in this regard to the landlord. Even if the plaintiff's son was running a car taxi, it could not be presumed that said son could not require the suit shop for carrying the business of cattle feed as it has come on record that he had sufficient experience in the said business and can procure finance for the same by selling off his car taxi and by taking loan from his father or otherwise. The objective satisfaction regarding personal bonafide need of the learned first appellate court is based on relevant evidence. 14/15 Thus, the findings of facts cannot said to give rise to any substantial question of law.
15. Thus, on both counts, the judgments and decree of eviction of the first appellate court is unassailable and no substantial question of law arises so as to require consideration by this Court. The First Appellate Court was justified in reversing the findings of learned trial court.
16. Consequently, this second appeal of defendant-tenant being devoid of merit is hereby dismissed. No order as to costs.
17. The appellant - defendant shall handover vacant and peaceful possession of the suit premises to the respondents - plaintiffs, within a period of two months from today. The appellant - defendant shall also pay arrears of rent and mesne profits, if any, within two months and shall pay further enhanced mesne profit of Rs.1000/- per month to them with effect from March, 2009 payable every month before 15th of succeeding month till the actual handing over of the vacant and peaceful possession of the suit property to the respondent - landlord. The decree be made accordingly. If the appellant - defendant fails to handover vacant and peaceful possession of the suit 15/15 property to the respondent - plaintiff within a period of two months from today as aforesaid or fails to pay mesne profit including the arrears of rent and mesne profit as directed above, the plaintiff - respondent shall not only be entitled to seek execution of the decree in normal course, but the appellant - defendant may also render himself liable for action under the contempt law.
(DR.VINEET KOTHARI), J.
item no.s-4 baweja/-