Rajasthan High Court - Jaipur
Kedar Nath (Dr.) Through His Lrs. vs Smt. Dhapu Kanwar Through Her Lrs. on 13 September, 2004
Equivalent citations: RLW2005(2)RAJ790, 2005(1)WLC300
JUDGMENT A.C. Goyal, J.
1. This is the second appeal by the legal representatives of the deceased-tenant Dr. Kedar Nath against the judgment and decree dated 28.11.2000 whereby learned Additional District Judge No. 3, Jaipur City, Jaipur confirmed the judgment and decree of eviction dated 9.9.1997 passed by Additional Civil Judge (Junior Division) No. 5, Jaipur City, Jaipur.
2. The plaintiff Smt. Dhapu Kanwar (since deceased) filed a civil suit for arrears of rent and eviction on 20.12.1976 against the defendant-tenant Dr. Kedar Nath with the averments that the suit shop was let-out at monthly rent of Rs. 20/- on 31.8.1955. Rent-note was executed on the same day. Eviction was sought on the grounds of default in payment of rent from 1.1.1974 and reasonable and bonafide requirement of her widow daughter Santosh.
3. Vide amended plaint filed on 10.1.1995, it was pleaded that now the suit shop is required for her son Moti Chand alias Nath Mal and grand son. One additional ground of eviction was taken that the defendant is a doctor and the suit shop was given for practice but on account of ill health, the defendant has stopped going to the shop and it often remains closed for about two and hair years. The defendant in his written statement while admitting himself to be the tenant, denied all the grounds of eviction.
4. On the basis of the pleadings, issues were framed. Evidence was recorded. Learned Additional Civil Judge (Junior Division) No. 5, Jaipur City, Jaipur vide judgment dated 9.9.1997 held that monthly rent agreed upon was Rs. 20/-; that the plaintiff failed to prove default in payment of rent; that the plaintiff further failed to prove her reasonable and bonafide requirement and comparative hardship; that the plaintiff has proved that the suit shop has not been used by the defendant-tenant without reasonable cause for a period of more than six months and thus passed a decree of eviction.
5. The defendant as well as the plaintiff filed separate appeals. The plaintiff filed cross objections also in the appeal filed by the defendant. The first appeal by the plaintiff was filed against the decision of the Trial Court on issue No. 7, which relates to fixation of standard rent. The Trial Court held that since the defendant has produced no evidence, this issue is decided against the defendant and in favour of the plaintiff. Even though the Trial Court did not fix the standard rent at the rate of Rs. 50/- per month as claimed by the plaintiff. The plaintiff preferred cross objections with regard to decision of the Trial Court on issue Nos. 2 & 3 both relating to default in payment of rent from 1.1.1974 and issue Nos. 4 & 5 relating to reasonable and bonafide requirement and comparative hardship. Learned Additional District Judge No. 3 vide impugned judgment dated 28.11.2000 dismissed the appeal of the defendant-tenant along with cross objections of the plaintiff-landlord but allowed the appeal of the plaintiff and thus fixed Rs. 50/- per month as standard rent payable from the date of the institution of the suit. It is made clear that the plaintiff-landlord died during the pendency of the first appeal, hence her legal representatives were brought on record.
6. In this second appeal, this Court framed following substantial questions of law on 18.5.2001:-
¼1½ D;k /kkjk&13¼1½¼ts½] jktLFkku ifjlj ¼fdjk;k fu;a=.k ,oa fu"dklu½ vf/kfu;e] 1950 ds izko/kkuksa ds vUrxZr okn izLrqr djrs le; oknh ds fy, okn i= esa ;g vfHkdfFkr djuk vko';d gS fd izfroknh fookfnr ifjlj dks okn izlrqr djus ds N% ekg iwoZ ls fcuk fdlh mfpr dkj.k ds mi;ksx esa ugha ys jgk gS \ ¼2½ D;k okn izLrqr djus ds mijkUr okn dh fopkjk/khurk ds nkSjku] okn izLrqr djus ds 18 o"kZ ds mijkUr /kkjk & 13¼1½¼ts½] jktLFkku ifjlj ¼fdjk;k fu;a=.k ,oa fu"dklu½ vf/kfu;e 1950 ds vUrxZr vfHkopu fd;k tk ldrk gS \a
7. Both the questions co-relate, hence are taken up together. Before adverting to the rival submissions, it would be appropriate to reproduce the provisions of Section 13 (1) (j) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act).
13(1) (j) Eviction of tenants:-Notwithstanding anything contained in any law or contract, no Court shall pass any decree, make any Order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit.
8. The present suit was filed in December, 1976 on two grounds namely default in payment of rent and reasonable and bonafide requirement. During the pendency of the suit an application under Order 6 Rule 17 C.P.C. was moved by the plaintiff with the averments that now the suit shop is required for plaintiff's son and grand son and the defendant has stopped going to the shop and the shop remains often closed for about 2 1/2 years and thus the defendant is not using the shop. The defendant in reply of this application denied the proposed amendments with a plea that the defendant is not the doctor and the shop was, not taken on rent for practice, rather the defendant is carrying on his business along with his sons and the suit shop never remained closed. This application was allowed and vide amended plaint submitted on 10.1.1995 this new ground as provided under Section 13 (1) (j) of the Act was taken. Both the courts below decided this issue in favour of the plaintiff-landlord. Learned counsel for the appellants-tenants contended that there is no plea that the suit shop has not been used without reasonable cause for the purpose it was let out and the phrase immediately preceding the date of. the suit means that this ground must exist immediately preceding the date of the institution of the suit which in the instant case is 20.12.1976 while the said ground was introduced by way of amendment in January, 1995 which was not permissible under Section 13 (1) (j) of the Act. Reliance has been placed upon Pooran Mal v. Rahman, R.L.R. 1992 (1) 206, wherein it was held that in absence of any plea of the landlord and without there being any evidence on the record to the effect that non-user of the disputed premises was continuously for a period of six months immediately preceding the date of the suit, decree on this ground is clearly perverse. It was further observed that the words 'immediately preceding' have to be read in conjunction with the words 'the date of the suit' and if so read, it is clearly borne out that a tenant shall be liable to be evicted if premises have not been used for a continuous period of six months before the date of the suit. While taking similar view in Gauri Lal v. Gujar Mal Through His Legal Representatives, 1992 (1) W.L.C. (Raj.) 437 it was observed that if the non-user does not relate to a period of continuous six months immediately preceding the date of the suit, the provisions of Section 13 (1) (j) of the Act cannot be pressed into service by the landlord. Therefore, as per learned counsel for the appellant, this ground of non-user cannot be taken by way of amendment subsequent to the filing of the suit as this ground must have been in existence prior to the institution of the suit itself.
9. Per contra, learned counsel for the respondents-landlords contended that for the purpose of this ground of eviction, the suit shall be deemed to have been instituted on 10.1.1995 and in support of this contention he placed reliance upon Chandgi Ram v. Babulal, 1997 (2) W.L.C. (Raj.) 624, RLW 1997(3) Raj. 1808, wherein placing reliance upon the judgment of the Hon'ble Supreme Court in B. Banerjee v. Anita Pan, A.I.R. 1975 S.C. 1146, it was held that a new ground for eviction on personal necessity arose during the pendency of the suit and such amendment, if made during the pendency of the suit incorporating the ground of bonafide necessity, shall not relate back to the date of filing of the suit but shall be treated from the date of filing of the amended plaint. In Sant Lal v. Harbans Singh, R.L.W. 1982 page 274 it was held that in a suit for eviction filed under Section 13 (1) (j) of the Act, when the tenant takes the defence that the shop was taken for and is being used for whole sale business and godown, it was not necessary for the plaintiff to plead and prove that non-user was without reasonable cause. It was also held that finding as to closure and non-user of premises by tenant for more than six months is a finding of fact.
10. 1 have considered the rival submissions in the light of the judgments relied upon. In the judgments of this Court in Pooran Mal and Gauri Lal's case (both supra) while interpreting the words 'immediately preceding the date of the suit' it was held that the tenant shall be liable to eviction if it is proved that the tenant has not used the premises for a continuous period of six months just before institution of the date of the suit. The relevant point of time of effectivity of amendment did not arise for consideration in these two judgments. This ground under Section 13 (1) (j) of the Act was not available to the plaintiff- landlord at the time when the suit was filed, so there was no question to take this plea at that time. According to the plaintiff, this ground arose during the pendency of the suit, hence this ground of non-user of the shop was introduced by way of amendment with the permission of the Court and in view of the judgment of this Court delivered in Chandgi Ram's case (supra), the new ground of amendment which arose during the pendency of the suit shall not relate back to the date of the institution of the suit but on the date when the amended plaint was filed. In other words, it can safely be held that for the purpose of this new ground as a ground of eviction the suit was filed on 10.1.1995 when the amended plaint containing this ground was filed in the trial Court. The other point that remains to be considered is that the plaintiff has not alleged that the suit shop has not been used without reasonable cause ? It is correct that the plaintiff has not stated in the plaint that the defendant has not used the shop without reasonable cause. This Court in Sant Lal's case (supra), held that it was found proved that the shop remained closed for six years and the question that the shop has not been used without reasonable cause relates to the facts which are within the special knowledge of the defendant and thus the burden of proving such facts is upon the defendant. In the instant case also, the plaintiff came out with a case that the defendant has not used this shop for about a period of more than two years and it was the case of the defendant-tenant that he has not closed the shop, rather he is carrying on his business with the help of his sons. Both the courts below having considered the material evidence arrived at concurrent finding that the suit shop was closed for a continuous period of more than six months prior to filing of amended plaint. This finding is a finding of fact and the same cannot be said to be perverse in any way. Learned counsel for the appellant put much stress upon this plea that in the plaint itself, it has been averred that the defendant on account of ill health has stopped going to the shop and thus it was a reasonable cause. This submission was not accepted by the courts below and rightly so. The suit shop has not been used for more than six months with any reasonable cause was to be proved by the defendant as such facts are within the knowledge of the defendant but he failed to do so. Therefore, both the questions are decided against the appellant.
11. With regard to cross objections relating to issues on reasonable and bonafide requirement and comparative hardship, a preliminary objection was taken by learned counsel for the appellants that cross objections were dismissed by the First Appellate Court, hence the respondent should have filed appeal against the decision of the First Appellate Court dismissing the cross objections and thus cross objections in second appeal cannot be filed. On merits, it was argued that there is concurrent findings on these two issues and there is no ground to interfere with the same. Learned counsel for the respondents contended that the cross objections may be filed and both the courts below did not consider the evidence in a proper manner, hence the findings on reasonable and bonafide requirement as well as comparative hardship are perverse.
12. I have considered the rival submissions. Both the courts below having considered the material evidence on the record recorded this finding that the plaintiff-landlord has failed to prove reasonable and bonafide requirement and the issue of comparative hardship. Such finding is a finding of fact and not a finding of even mixed law and fact and cannot be interfered with by the High Court in second appeal unless it is shown that in reaching it a mistake of law is committed by the courts below or it is based upon no evidence or is such a reasonable man cannot reach it. Roth the courts below have considered the material evidence available on the record and no case of mistake of law or non-consideration of material evidence or mis-reading and wrong-reading of evidence is made out. Hence, I find no reason to interfere with the concurrent findings of the facts on these two issues. In view of the above finding, the preliminary objection is not required to be decided by this Court in second appeal.
13. Consequently, this second appeal and the cross objections are hereby dismissed. No Order as to costs.