Rajasthan High Court - Jodhpur
M/S Indian Oil Corporation Ltd.Jaipur vs Lrs.Of Smt.Teeju Devi on 30 July, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi
&
SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012
1/9
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JDOHPUR
JUDGMENT
(1)S.B. Civil Second Appeal No.107/2012 M/s Indian Oil Corporation Ltd. Vs. LR's of Teju Devi & (2) S.B. Civil Second Appeal No.78/2012 M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Date of Judgment ::: 30th July, 2012.
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr. O.P.Mehta,for the appellant-defendant.
(In SBCSA No.107/2012) Mr. J.L. Purohit, Sr. Advocate with Mr. N.R. Budania, for the appellant-defendant.
(In SBCSA No.78/2012) Mr. B.M. Bhojak, for the respondents-plaintiffs.
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1. Heard learned counsels for the parties.
2. Since, both these second appeals, filed by the appellants, M/s Indian Oil corporation Ltd. and its dealer M/s Ashok Kumar Mahesh Chand, are arising out of common judgment and eviction decree dated 18.01.2012 passed by learned lower appellate SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 2/9 court below (Additional District Judge, Sujangarh) in Civil Appeal No.24/2007 (47/96) in respect of suit premises, (a plot of land measuring 60' x 40' at Bidasar, on which a petrol pump is being run by the Dealer of IOC defendant-tenant, therefore, same are being decided by this common judgment. The learned trial court had decreed the Civil Suit No.63/1981- Smt. Teju Devi Vs. Indian Oil Corporation Ltd. & Ors. vide the judgment and decree dated 19.12.1988 on the ground of second default in payment of rent.
3. The first appeal preferred by the tenants before the learned lower appellate court of Additional District Judge, Sujangarh also came to be dismissed by the impugned judgment and decree dated 18.01.2012. The appellants/tenants, therefore, being aggrieved by the judgments and decrees of the courts below are before this Court in second appeal under Section 100 of Civil Procedure Code, 1908 stating that substantial questions of law arise in the present appeals.
4. Learned lower appellate court while upholding the judgment and decree of the learned trial court, has given following reasons: -
"... अप ल क अवल कन स सपष ह कक अप ल दर स पश क गई थ , क फ लब समय तक दर! नह क गई, ब द म" अप ल अदम ह रर म" ख ररर ह गई और लब समय ब द प&न: दर! ह&ई। इसललए रब तक अप ल दर! नह ह र त , तब तक अप ल क व द क ननरतरत नह म न र सकत । कफर भ दद. 1-1-92 स ददन क 31-1-03 तक क SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 3/9 ककर य पतयथ0 न ध र 19 (ए) क तहत रम कर य ह।
अप ल दर! नह ह न क क रण पतयथ0 क न द3स नह ह क क रण ध र 19 (ए) क तहत रम कर य ककर य क द4त य च6क नह म न र सकत । लककन ददन क 1-2-03 स लक आर तक क ककर य पतयथ0 क ओर स रम कर न क क ई सब6त नह ह। अप ल थ0 क वव4 न अधधवक 4 र पसत&त द न< नय नयक नर न< म" म नन य र रसथ न उचच नय य लय न यह पनतप ददत ककय ह कक अप ल व द क ननरतरत ह और यदद अप ल क द@र न ककर य रम नह कर य रत ह त यह द4त य चक 6 मन र यग और द4त य च6क क आध र पर बदखल क डBक प ररत क र सकत ह। वत!म न पकरण म" भ अप ल दर! ह न क ब द ददन क 1-2-03 स लकर अक36बर 2011 तक क ककर य पतयथ0 क ओर स रम य अद नह ककय गय ह।
पतयथ0 क यह छ63 नह द र सकत ह कक अप ल क द@र न वह भ-6 सव म क ककर य ह अद नह कर लगभग न@ स ल क ककर य अद नह करन ननशGत रप स व द क ननरतरत क द@र न पनतव द /ककर यद र 4 र क गई च6क ह और इस द4त य च6क क द ष पतयथ0/पनतव द ह न ववधधक रप स म न र न य गय ह और इस आध र पर व ददन /अप ल थ0गण बदखल क डBक पप करन क अधधक र ह।"
5. Learned counsel for the appellants-defendants, Mr. J.L. Purohit, Sr. Advocate (for the defendant Dealer) and Mr. O.P. Mehta (for defendant-tenant IOC) urged that in view of judgment of the Hon'ble Supreme Court in the case of Shiv Dutt Jadiya Vs. Ganga Devi reported in 2002 AIR SCW 930, a fresh opportunity was required to be given by the lower appellate court for payment of rent SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 4/9 under Section 19-A of the Act. In view of dismissal of the appeal of defendants in default; and thereupon after restoration of appeal by the lower appellate court below, since during pendency of such dismissal in default, the defendant-tenant obviously could not deposit the rent under Section 19-A of the Act. He, therefore, relied upon aforesaid decision of Hon'ble Supreme Court in the present second appeal. In the case of Shiv Dutt Jadiya (supra), the Hon'ble Supreme Court as held as under:
"9. Before parting, we would like to sound a note of caution. During the course of hearing a decision by Rajasthan High Court in Kamruddin v. Wahid Ali (1987) (1) RLR 290) was brought to our notice wherein the view taken by the High Court is that compliance with Section 13 of the Act need not be made during the pendency of appeal. We have taken a view to the contrary. To obviate the unforeseen difficulty which the tenants are likely to face in those matters which may be pending in appeal we would like to clarify that before striking out the defence under sub-
section (5) or denying the benefit of relief against eviction under sub-section (6), for failure to comply with sub-section (4), of Section 13 of the Act during the pendency of appeal, the appellate Court shall afford the tenant (in that case only, it is not a judgment in rem) a reasonable opportunity for compliance on this decision coming to or being brought to its notice. However, this judgment shall not be a ground for re-
SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 5/9 opening any matter which stand already concluded."
These observations are obviously not of help to present appellants-tenants.
6. This Court in the case of Chand Ratan Swami Vs. Manak Chand reported in 2011 (2) DNJ (Raj.) 798, which judgment has been relied upon by the learned lower appellate court also, relying upon a previous decision of this Court in the case of Bulaki Dass Vs. Ram Swaroop, 2009 (2) RLW 1175 : 2009 (1) DNJ (Raj.) 436 held that delay in payment of rent during the pendency of the appeal cannot be condoned and following the Supreme Court decision in the case of Nasiruddin & Ors. Vs. Sita Ram Agarwal reported in AIR 2003 SC 1543 and in the case of Shiv Dutt Jadiya (supra), the eviction decree was bound to be passed by the learned appellate court below. This Court in the case of Chand Ratan Swami (supra) has held as under: -
"9. Following the said judgment, this Court in Bulaki Dass's case (supra) held as under:
"The tenant in order to maintain his tenancy right is allowed to deposit the rent in the Court instead of payment of the same to the landlord only after following the mandatory procedure under clauses (a) and (b) both. In the present case, there is nothing on record to show that the rent at least for the month of June, 1980 to August, 1980 was tendered to the landlord at any point of time, therefore, deposit for these three months cannot be said to be a valid deposit as per provisions of Section 19A of the Act. Similarly, for the month of September, 1980 to SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 6/9 November, 1980, the money order sent by the defendant which were of of course refused by the plaintiff landlord for these three months also, there was no deposit of the same by the tenant in the court under Section 19A of the Act. Thus, for six months from June, 1980 to November, 1980, the second default stood committed by the tenant. The deposit under Section 19A of the Act which came to be made by the defendant-tenant on 10.2.1981 for 5 months (September, 1980 to January, 1981) was not in accordance with law, after institution of present suit on 4.2.1981 and as procedure both under clauses (a) and (b) was not followed by the tenant and therefore, the said deposit also does not wash away the second default which already stood committed by the defendant-tenant. Admittedly, the law does not permit any leniency and waiver in the case of second default and eviction decree under Section 13 (1) (a) of the Act is bound to be passed on commitment of second default in payment of rent. As already discussed above, the second default for the period of six months from June, 1980 to November, 1980 stood committed by the defendant-tenant on 15.12.1980 and the eviction decree was bound to be passed and was, therefore, right passed by the courts below."
7. Mr. B.M. Bhojak, learned counsel appearing on behalf of respondents-plaintiffs-landlord supported the impugned judgments and decree of the courts below and submitted that no substantial question of law arises in the present second appeal.
8. Having heard learned counsels for the parties and upon perusal of impugned judgments and decree of the courts below as well as in view of aforesaid case laws, cited at the bar, this Court is of the opinion that no substantial question of law arises in the present second appeals of the defendants-tenants. There was no SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 7/9 justification for the non-depositing of rent after restoration of appeal on 01.02.2003. The defendants did not deposit the rent for a long period of nine years i.e. from 01.02.2003 to October, 2011. The tenancy in question was monthly and on account of monthly default, much more than, six months' default occurred during the pendency of the first appeal. Furthermore, there was no question of giving any further opportunity since at the relevant point of time, the judgment of the Hon'ble Apex Court in the case of Shiv Dutt Jadiya (supra) had already been pronounced on 20.02.2002. The observations of Hon'ble Supreme Court in para 9, quoted above, was limited to that particular case only and it is not a judgment in rem to that extent of observations. Mere ignorance on the part of the tenant of this legal position, is of no excuse and they cannot claim that confusion, which arose because of previous judgment of learned Single Judge of this Court in the case of Kamruddin Vs. Wahid Ali (1987) (I) RLR 290, the opportunity under Section 19-A of the Act was required to be given by the lower appellate court below.
9. No such further opportunity could be claimed at the final decision of the appellate court below as the tenants have not paid any monthly rent for a long period of nine years. Admittedly, the said judgment was pronounced prior to restoration of the appeal in the present case and thereafter also, the defendant-tenant failed to pay any rent for nine years for which there is no justification available and upon second default, the courts below were bound in law to pass the SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 8/9 eviction decree.
10. Consequently, the learned lower appellate court below was justified in affirming the decree of eviction on the ground of second default, to which, there is no escape for the tenant under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Therefore, the present second appeals of the defendants, namely, M/s Ashok Kumar Mahesh Chand and Indian Oil Corporation Ltd. have little force and no substantial question of law are arises in both these appeals.
11. The present second appeals filed by the defendants are, therefore, found to be bereft of any merit and devoid of any force. The appeals are accordingly dismissed. No costs.
12. The both appellants-defendants-tenants shall hand over the peaceful and vacant possession of the suit property to the respondents-plaintiffs (landlord) within a period of six months from today and shall pay mesne profit @ Rs.2000/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondents-plaintiffs till the vacant possession is handed over to the plaintiffs and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellants-tenants shall also clear all the arrears of the mesne profit and rent within three months from today otherwise SBCSA No.107/2012 M/s Indian Oil Corp. Ltd. Vs. LR's of Teju Devi & SBCSA No.78/2012 - M/s Ashok Kumar Mahesh Chand Vs. LR's of Teju Devi & Anr.
Decision dt: 30/07/2012 9/9 the same would bear interest @ 9% p.a. till payment is made. The defendants-tenants, shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellants-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the respondents-plaintiffs/landlord within a period of six months from today, besides execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the opposite party and learned courts below forthwith.
(DR. VINEET KOTHARI), J.
DJ/-
34-35