Rajasthan High Court - Jodhpur
Champalal And Ors vs Ramesh And Ors on 7 August, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:32362]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 1504/2006
1. Champalal S/o Kapoor Chand, age 66 years,
2. Ramesh Kumar S/o Kapoor Chand, age 64 years,
3. Sanjay Kumar S/o Kapoor Chand, age 56 years,
All residents of Kumharon-Ka-Bas, Old Mahalaxmi Road,
Dhora Dhal, Bhinmal, District jalore
----Appellants/plaintiffs
Versus
1. Ramesh S/o Sh. Devi Lal
2. Babu S/o Sh. Devi Lal
3. Smt. Meena W/o Sh. Shankar Lal
4. Smt. Geeta W/o Sh. Gheesuji
5. Smt. Leela W/o Sh. Badiyaji
6. Smt. Sukhi W/o Sh. Mohanji
7. Smt. Poda W/o Sh. Isuji
8. Smt. Kali W/o Sh. Bhola Ram
9. Smt. Leela W/o Sh. Moola Ram
10. Smt. Radha Widow of Devi Lal
All residents of Bhaton-Ka-Bas, Dhora Dhal, Bhinmal,
District Jalore
----Respondents/defendants
For Appellant(s) : Mr. Sandeep Shah assisted by
Mr. Abhimanyu Singh
For Respondent(s) : Mr. Ravi Panwar.
Mr. Suresh Shrimali.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
Reportable
Reserved on: 25/07/2024
Pronounced on: 07/08/2024
1. The instant appeal has been filed by the Appellants/Plaintiffs
under Order 43 Rule 1(u), CPC, 1908 against the order dated
13.09.2006 passed by learned Additional District Judge, Bhinmal
(Downloaded on 13/08/2024 at 08:34:57 PM)
[2024:RJ-JD:32362] (2 of 18) [CMA-1504/2006]
in Civil Regular First Appeal No. 06/2001, whereby the judgment &
decree dated 09.04.2001, passed by Civil Judge, Bhinmal in Civil
Original Suit No. 113/1993, was set aside and remanded back to
the learned trial court with direction to frame additional issue with
respect to the partial eviction of the suit shop and thereafter,
conduct rehearing on this issue after recording evidence of both
the parties in this behalf and then pass judgment in accordance
with the law.
2. Briefly stated, the facts germane to the case are that the suit
shop was given on rent to Late Devi Lal (Original Defendant) on
10.07.1979 on a monthly rent of Rs. 411/-. As no rent was paid
by the respondents/defendants after 11.11.1979, the
appellants/plaintiffs vide registered notice dated 02.06.1980
terminated the tenancy of respondents/defendants and also
demanded arrears of rent. However, the sole defendant-Devi Lal
neither tendered the rent nor handed over the shop to the
appellants/plaintiffs. Thus, the Appellant/Plaintiffs filed the Civil
Original Suit No. 113/1993 for eviction and arrears of rent against
the Respondents/Defendants in the court of Civil Judge, Bhinmal
(hereinafter referred to as 'the trial Court') inter-alia on the
ground of default in payment of rent under Section 13(1)(a) of
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
(hereinafter referred to as "the Act"). The learned trial court vide
order dated 25.04.1995 determined provisional rent. However, as
the same was not paid by the respondents/defendants, the
learned trial court vide order dated 29.01.1997 struck out the
defence against eviction on an application filed by
appellants/plaintiffs under Section 13(5) of the Act. The
(Downloaded on 13/08/2024 at 08:34:57 PM)
[2024:RJ-JD:32362] (3 of 18) [CMA-1504/2006]
respondents/defendants preferred an appeal against the order
dated 29.01.1997 before Learned Additional District Judge, Jalore
(hereinafter referred to as "ADJ, Jalore"). However, the same was
dismissed by the learned ADJ, Jalore vide order dated 30.09.1999.
Thereafter, a revision petition was preferred by the respondents
against the order dated 30.09.1999 before this court however, the
same was dismissed vide order dated 11.10.2000 and order with
respect to striking out defence attained finality.
3. Upon receipt of summons, the original defendant, Devi Lal
filed his written statement to the plaint and raised preliminary
objections about maintainability of the suit. The defendant,
however, admitted execution of the rent note and a request for
fixation of standard rent was made. The defendant also denied
default in payment of the rent and also questioned the bonafide
necessity of the suit shop by the plaintiffs. A prayer for dismissal
of the suit was made. During pendency of the suit, defendant Devi
Lal died and his legal representatives were brought on record.
4. As per the pleadings of the parties, the learned trial court
framed seven issues, including relief, which reads as under:
1- D;k oknh dks ;g okn oknh la- 3 mez vO;Ld dh vksj ls ykus dk
vf/kdkj gkfly gS\ ¼oknhx.k½
2- D;k izfroknh us oknxzLr nqdku dk fdjk;k egktuh laor 2036 ds
fexlj lqnh 15 rd dk gh vnk fd;k gSA blds i"pkr~ dk fdjk;k
izfroknh }kjk vnk u djus dh lwjr esa izfroknh fdjk;k vnk;xh ls
vfrdzeh gks x;s gSa o oknhx.k nqdku [kkyh djokus ds vf/kdkjh gS\
¼oknhx.k½
3- D;k oknhx.k dks oknxzLr nqdku dh Lo;a ds O;kikj gsrq futh
vko";drk gS bl dkj.k oknhx.k nqdku [kkyh djokus ds vf/kdkjh
gS\
4- D;k oknxzLr nqdku dk fdjk;k 411@& izfrekg u gksdj 175@&
#i;s izfrekg gSA ;fn gka rks dc ls\ ¼izfroknh½
5- D;k bl nqdku dk ekud fdjk;k 72-50 #i;s gS] ftls r; djus dk
izfroknh vf/kdkjh gS\ ¼izfroknh½
6- ;fn oknxzLr nqdku [kkyh u gks rks rqyukRed vlqfo/kk izfroknh ds
eqdkcys oknh dks T;knk gksxh\ ¼oknhx.k½
(Downloaded on 13/08/2024 at 08:34:57 PM)
[2024:RJ-JD:32362] (4 of 18) [CMA-1504/2006]
7- nknjlhA"
5. Both the parties to the proceedings adduced their evidence
in support of their pleadings and also exhibited certain documents.
6. The learned trial court, after perusing the material available
on record decided the issue no. 1, 2 and 4 in favour of appellants/
plaintiffs and decreed the suit of appellants/plaintiffs against the
respondents/defendants vide judgment & decree dated
09.04.2001 on the ground setforth in Section 13 (1) (a) of the Act
i.e. default. The relevant part of the judgment & decree dated
09.04.2001 is being reproduced here:-
"50- fyf[kr cgl esa izfroknhx.k dh vksj ls ;g vkifRr Hkh izLrqr dh xbZ
fd tc gLrxr ekeys esa futh ,oa ln~Hkkfod ln~Hkkouk dk vk/kkj gS rks vkaf'kd
csn[kyh dk fook|d fojfpr fd;k tkuk pkfg,A bl laca/k esa izfroknhx.k dh vksj
ls 1998 Mh ,u ts jktLFkku 373 LVsV vkQ jktLFkku o vU; cuke f"koflag dh
uthj dh vksj U;k;ky; dk /;ku vkdf'kZr fd;k x;kA ysfdu bl laca/k esa ;g
rF; mYys[kuh; gS fd fook|d la[;k rhu ds fofu"p; ds nkSjku vOoy rks oknhx.k
dh fookfnr nqdku ds fy, fuft ,oa ln~Hkkfod vko";drk gksuk ugha ik;k x;k gSA
blds vykok fof/kd :i ls bl vk/kkj ij oknhx.k dk okn oftZr gksuk Hkh n`f'Vxr
gksrk gS D;ksafd fookfnr ifjlj gksVy dk /ka/kk djus ds fy, oknhx.k ls izfroknh us
fdjk;s ij fy;kA fdjk;s ij ysus ls ,d o'kZ 5 fnu ckn gh oknhx.k us izfroknh ds
fo#) fuft ,oa ln~Hkkfod vko";drk ds vk/kkj ij okn izLrqr dj fn;k tcfd
dkjksckj ds iz;kstukFkZ ;fn dksbZ nqdku fdjk;s ij nh tkrh gS rks 5 o'kZ ls igys
/kkjk 13 ¼1½ ¼,p½ vf/kfu;e ds vUrxZr of.kZr vk/kkj ij okn izLrqr ugha fd;k tk
ldrk gSA vr% ,slh ifjfLFkfr;ksa esa ;fn vkaf"kd csn[kyh dk fook|d fojfpr ugha
Hkh gqvk gS rks blls ekeys dh vUoh{kk ij izfrdwy izHkko iM+uk ugha dgk tk ldrk
gSA D;ksafd oSls Hkh fook|d la[;k rhu ls lacaf/kr vk/kkj ds fy, okn /kkjk 14 ¼3½
vf/kfu;e ds v/khu oftZr n`f'Vxr gksrk gSA
52- pwafd fook|d la[;k ,d] nks o pkj oknhx.k ds i{k esa fofuf"pr gq,
gSA fook|d la[;k nks ds fofu"p; ds nkSjku izfroknhx.k dks 6 ekg ls vf/kd dh
vof/k ds fdjk;s ds lank; esa O;rhdzeh Hkh ik;k gSA blds vykok bl U;k;ky; ds
vkns"k fnukad 29-1-97 ds }kjk izfroknhx.k dk /kkjk 13¼5½ vf/kfu;e ds v/khu
izfrj{kk dk vf/kdkj Hkh lekIr fd;k tk pqdk gSA vr% ,slh ifjfLFkfr;ksa esa tc
izfroknhx.k fdjk;snkj }kjk /kkjk 13¼4½ vf/kfu;e ds }kjk visf{kr fu{ksi ;k lank;
ugha fd;k x;k rc os /kkjk 13¼6½ vf/kfu;e ds v/khu ykHk izkfIr ds vf/kdkjh
n`f'Vxr ugha gksrs gS vkSj izfroknhx.k ds fo#) csn[kyh dh fMdzh ikfjr dh tkuk
mfpr ,oa U;k; laxr izrhr gksrk gSA"
(Downloaded on 13/08/2024 at 08:34:57 PM)
[2024:RJ-JD:32362] (5 of 18) [CMA-1504/2006]
7. Thereafter, the respondents/defendants preferred an appeal
against the order dated 09.04.2001 before Additional District
Judge, Bhinmal (hereinafter referred to as "the appellate court").
The learned appellate court vide order dated 13.09.2006 while
allowing the appeal set aside the Judgment & decree dated
09.04.2001 and remanded back the case to the learned trial court
with direction to frame additional issue with respect to the partial
eviction of the suit shop and conduct rehearing on this issue after
recording evidence of both the parties in this behalf and then pass
judgment in accordance with the law.
8. Thus, aggreieved by the order dated 13.09.2006 passed by
the learned appellate court, the instant appeal has been preffered
by the Appellants/Plaintiffs.
9. It is submitted by the learned senior counsel on behalf of the
appellants that the issue framed by the learned trial court with
respect to ground set forth in Section 13(1)(h) of the Act i.e.,
reasonable and bona-fide necessity was decided against the
appellants/plaintiffs and thus the order dated 13.09.2006 is
perverse. He further submitted that as the said eviction order,
directing the learned Trial Court to decide the issue of partial
eviction, is not passed on the ground set forth in Section 13(2)(h),
therefore, it was not the case to frame an issue with respect to
partial eviction as stipulated under Section 14(2) of the Act.
10. It is submitted by the learned senior counsel on behalf of the
appellants that on the ground of want of framing of additional
issue of partial eviction, no prejudice can be said to have been
caused to the respondents/defendants nor the proceedings could
stand vitiated. Learned counsel for the appellants, relying on
(Downloaded on 13/08/2024 at 08:34:57 PM)
[2024:RJ-JD:32362] (6 of 18) [CMA-1504/2006]
Kameshwaramma vs. Subba Rao, AIR 1963 SC 884, has
submitted that it was not proper on the part of the learned
appellate court to remand back the matter to the learned trial
court for framing of such issue of partial eviction.
11. It is submitted by the learned senior counsel on behalf of the
appellants that defence of respondents/defendants was already
struck out under Section 13(5) of the Act vide order dated
29.01.1997 passed by the learned trial court which attained
finality vide order dated 11.10.2000 passed by this court. Thus,
the learned trial court proceeded to pass an eviction decree on the
ground set forth in Section 13(1)(a) of the Act and therefore,
learned appellate court's order, remanding the matter back to the
learned trial court was not correct.
12. Per Contra, it is submitted by the learned counsel on behalf
of the respondents that the impugned order passed by the
learned appellate court is absolutely correct as per Section 14(2)
of the Act. He further placed reliance on AIR 1984 SC 1799, 1994
DNJ (Raj.) 659 and 1997 DNJ (Raj.) 483
13. It is submitted by the learned counsel on behalf of the
respondents that the learned appellate Court has decided appeal
while exercising under Order 41 Rule 23A and remanded the
matter to the learned trial court to frame an issue on partial
eviction and directed both the parties to lead the evidence in this
regard, therefore, the only question required to be examined this
Court is whether remand order passed by the learned appellate
court is in accordance with law or not, thus, other contentions are
neither permissible in law nor the same can be raised by the
appellants in this appeal.
(Downloaded on 13/08/2024 at 08:34:57 PM)
[2024:RJ-JD:32362] (7 of 18) [CMA-1504/2006]
14. Heard the counsels appearing on behalf of the parties and
perused the material available on the record.
15. The question that falls for adjudication before this court is
that whether the learned appellate court was right in remanding
back the matter to the learned trial court with direction to frame
the issue of partial eviction and conduct rehearing thereof after
recording the evidence in this behalf one the learned Tribunal has
decided that there is no bonafide necessity of the premises in
question for the appellant landlord.
16. It is evident from the impugned order that the learned
appellate court has remanded the matter back to the learned trial
court only on the ground that no issue on partial eviction was
framed by the learned trial court. Now, before adverting to
adjudicate the instant appeal on merits, this court finds it
germane to consider the current position of law with regards to
the issue in hand. Section 13 and 14 of the Rajasthan Premises
(Control of Rent & Eviction), 1950 is being reproduced as follows:
"Section 13 - Eviction, of tenants:
(1) Notwithstanding anything contained in any law or
contract, no Court shall pass any decrees, or make any
order, in. favour of a landlord, whether in execution of a
decree or otherwise, evicting the tenant, 1[***] so long as
he is ready and willing to pay rent therefore to the full
extent allowable by this Act, unless it is satisfied-
(a) that the tenant has neither paid nor tendered the
amount of rent due from him for six months]; or
.....
(h) that the premises are required reasonably and bona fide by the landlord-
(i) for the use or occupation of himself or his family, or
(ii) for the use or occupation of any person for whose benefit the premises are held, or (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (8 of 18) [CMA-1504/2006]
(iii) for a public purpose, or
(iv) for philanthropic use, or, ......
(3) In a suit for eviction on the ground set forth in clause (a) of sub-section (1) with or without any of the other grounds referred to in that sub-section, the court shall, on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after fling of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six from percent per annum the date when any such amount was payable upto the date of determination. Provided that while determining the amount under this sub- section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit.
(4) The tenant shall deposit in court or pay to the landlord the amount determined by. the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3).
(5) If a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. (6) If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-sec. (1) shall be passèd by the court against him:
Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (9 of 18) [CMA-1504/2006] accommodation if he again makes a default in the payment of Rent of that accommodation for six months.
(7) If in any suit referred to in sub-section (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, having regard to the circuinstances of the case,it deems fit.
...
...
Section 14 - Restrictions on eviction:
"(1) No decree for eviction on the ground set forth in clause
(b) of sub-section 13 shall be passed unless the Court is satisfied, after taking all the facts and circumstances into consideration, that it is reasonabie to allow such eviction.
(2) No decree for eviction on the ground set forth in clause
(h) of sub-section (1) of section 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.
Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only. (3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub-sec. (1) of sec. 13 before the expiry of five years from the date the premises were let out to the tenant."
17. Thus, Section 13(1) of the Act enumerates the grounds on which a decree for eviction can be passed. Section 13(1)(a) of the Act mentions about the ground of "default in payment of rent" by the tenant and Section 13(1)(h) of the Act mentions about the ground of "reasonable and bona fide necessity" of the landlord. Section 13(3) of the Act states that in a suit for eviction on the ground set forth in Section 13(1)(a) of the Act (i.e., default in payment of rent) the court shall, before framing of the issues, (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (10 of 18) [CMA-1504/2006] provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Also, Section 13(4) of the Act stipulates the limitation period within which the amount of rent provisionally determined under Section 13(3) of the Act is to be deposited. Further, Section 13(5) of the Act provides that if a tenant fails to deposit the amount as referred to in Section 13(4) of the Act on the date or within the limitation provided therein, the court shall strike out the defence of tenant against eviction and proceed with the hearing of the suit. Thus, it is clear that a decree on the ground set forth in Section 13(1)(a) i.e., (default in payment of rent) can be passed if the following essentials are met:
(i) The tenant was in arrears of rent as mentioned in Section 13(1)(a), and
(ii) He fails to comply with the provisions of Section 13(3) and 13(4) of the Act (meaning thereby that tenant's defence against eviction has been struck out under Section 13(5).
18. Further, Section 14(2) of the Act lays down certain provisions that a court has to consider before proceeding to pass a decree on the ground set forth in Section 13(1)(h) of the Act (i.e., reasonable and bonafide necessity). The first part of Section 14(2) of the Act mentions the comparative hardship and the second part of seciton 14(2) which starts with "where the court.." deals with partial eviction. Thus, Section 14(2) provides protection to tenants in cases where an eviction decree is being considered to be passed only on the ground set forth in Section 13(1)(h) of the Act, and the court is required to examine under Section 13 (1)(h) that the premises are required reasonably and in bona-fidely manner by (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (11 of 18) [CMA-1504/2006] the landlord in order to decide the issue of partial eviction. Thus, it is evident from a bare perusal of Section 14(2) of the Act that it would come into play only in cases where an eviction decree is being considered to be passed on the ground set forth in Section 13(1)(h) of the Act, i.e. if the Court arrives at a conclusion that the premises is required reasonably and bona-fidely by him.
19. This Court in Heera Lal v. Mandir Shri Thakurji Sangria, 2005 SCC OnLine Raj 627 gave following pertinent observation with respect to Section 14(2) of the Act:
"21. Taking up Question No. 3 regarding the requirements of Section 14(2) of the Act, it may be pointed out in the first place that when finding on reasonable and bonafide necessity cannot be sustained, as found hereinabove, the consideration of requirements of Section 14(2) would not even arise and Question No. 3 becomes redundant. However, for clarification, it may be pointed out that even on this aspect, the learned courts below have grossly erred in law."
20. In State of Rajasthan v. Kanti Lal, 1992 SCC OnLine Raj 147, this court was dealing with a similar matter where eviction decree was passed on two grounds as set forth in Section 13(1)(a) and Section 13(1)(h) of the Act respectively. One of the contentions of the appellant while challenging the eviction decree was that the learned trial court without considering the point of partial eviction under Section 14(2) of the Act passed a decree in favour of the respondent/plaintiff. The court while dismissing the appeal gave following pertinent observation:
"7. It is no doubt true that it is incumbent upon the court to consider the point of partial eviction while passing a decree on the ground of reasonable and bonafide necessity. In the instant case DW. 1 Uma Chaturvedi has not been able to show when the rent from 6-9-1980 to 6- 4-1981 was paid and the learned trial court on the basis of (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (12 of 18) [CMA-1504/2006] evidence while deciding issue no. 4 has held that the, appellant has not deposited rent from 6-9-1980 to 6-4- 1981. It has also come on record that rent was not deposited upto 20-4-82. The rent was determined on 20-8-
81. The rent for the month of August, 1982 was deposited only on 15-10-1982, whereby he committed second default. The defence of the appellant was struck off on 20- 9-86. Admittedly, the Department has not filed any revision u/s. 115 CPC or appeal u/s. 22 of the Act, against the order of striking off defence. As such it has become final. This Court in Jnderchand v. Smt. Lilawati (supra) after relying on Modula India v. Kamakshya Singh (5) has held that once defence is struck off, the defendant will not be entitled to lead any evidence on his own. The learned trial court after considering material on record passed a decree on the ground of default, which has been affirmed by the learned Appellate Court and has also not been challenged before me. Under the circumstances, the argument of remanding of case for considering partial eviction has no substance as in the instant case Sec. 14(2) of the Act is not applicable. In this case suit is not only based on the ground of reasonable and bonafide necessity but also on the ground, other than 13(1)(h) of the Act i.e. default. Once a decree on the ground of default has been passed, in such a case the tenant will not be able to substantiate his case as he has lost his right to lead other evidence. Moreso, the defence of the tenant has been struck off and a decree on the ground of default has been passed. It would a futile exercise as Sec. 14(2) will not come into play. Keeping in view, the Legislature in its wisdom made S. 14(2) of the Act applicable to the cases covered u/s. 14(1)(h) of the Act only i.e. of reasonable and bonafide necessity. Therefore, as discussed above, in my opinion, in this case it is not necessary to consider the case of partial eviction as a decree on the ground of default has been passed. Mr. Jasmatia, learned Addl. Advocate General has not been able to show otherwise. As such no substantial question of law is involved in this case and no interference is called for."
21. In Banshilal v. Ranamal, 2017 SCC OnLine Raj 3044, this court gave following pertinent observation regarding the ground set forth in Section 13(1)(a) of the Act:
"18. So far as question No. 3- "Whether a suit for eviction filed by plaintiff landlord against the tenant defendant on ground of clause (a) of sub-section (1) of Section 13 of the Rajasthan Premises (Control F Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act, 1950'), can be ipso facto decreed because the defence of the tenant defendant has been struck off within the meaning of sub-section (5) of the aforesaid Section or even if the defence of the tenant defendants is struck off within the meaning of subsection (5) of Section 13, even then the (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (13 of 18) [CMA-1504/2006] plaintiff landlord is required to establish that the tenant has neither paid, nor tendered the amount of rent due from him for six months at the time of institution of the suit"; admittedly defence has been struck off under sec.13(5) of the Act of 1950 and therefore, the suit was required to be decreed on the ground of default. The respondents placed reliance on judgment of this Court reported in 2014 (3) DNJ (Raj) 1165 (Tulsi Ram v. Mohan Lal Dashora) holding that delay in deposit of rent can not be condoned and the defence is liable to be struck off and 2007 (2) DNJ (Raj) 1054 (Usha Jain (Smt) v. Trilok Chand Jain) holding that eviction decree can be passed immediately in view of provisions of sec.13(5) of the Act on failure to deposit determined rent.
19. In the present case also, admittedly the appellant has not deposited single penny during pendency of the suit and therefore also, the appeal deserved to be dismissed. Hence, on question No. 3 no case for interference in the judgment of appellate court is made out."
22. In Ladu Ram v. Ganesh Lal, (1999) 7 SCC 50, the apex court made following observations regarding the ground set forth in Section 13(1)(a) of the Act:
"4. Now, the question that arises for consideration is whether a court in the absence of any relief for recovery of arrears of rent in a suit for eviction based on default in payment of rent is precluded from determining the provisional amount of rent which a tenant is required to deposit. If a suit for eviction is based on the ground set forth in clause (a) of sub- section (1) of Section 13 of the Act, the landlord must allege and prove three requirements, namely,
(i) the tenant is in arrears of rent,
(ii) such arrears of rent were due for more than six months, and
(iii) the tenant has failed to pay such arrears of rent to the landlord.
Excepting these requirements there is no other requirement of law which a landlord is to plead and prove for obtaining a decree of eviction. We, therefore, find that a landlord is not required in a suit for eviction based on default to seek an additional relief for recovery of arrears of rent. Even without such a relief a decree for eviction against a tenant can be passed by the court. This aspect can be examined from another angle. Under Order 2 sub-rule (2) CPC, where a plaintiff omits to sue in respect of, or intentionally relinquishes (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (14 of 18) [CMA-1504/2006] any portion of his claim, he is debarred afterwards to sue in respect of the portion so omitted or relinquished. The only effect of the absence of relief for recovery of arrears of rent in a suit is that the plaintiff cannot subsequently file a suit for recovery of arrears of rent for which he omits to sue in a suit for eviction based on default in payment of rent. Applying the said principles it does not stand to reason why a suit simpliciter for eviction on the ground set forth in clause (a) of sub- section (1) of Section 13 of the Act is not maintainable in the absence of relief for recovery of arrears of rent. A perusal of sub-sections (3), (4), (5) and (6) of Section 13 shows that the determination and payment of arrears of rent by a tenant have been provided for the benefit of tenant. The object behind the aforesaid provisions is that no decree of ejectment can be passed in favour of the landlord where the eviction is sought on the ground of default in payment of arrears of rent if the tenant pays or deposits the arrears of rent within the time provided. If the tenant deposits the arrears of rent, not only can he contest the suit filed by the landlord, but also can avoid a decree for ejectment on the ground of default in payment of rent. Therefore, the tenant cannot complain that in the absence of any relief for recovery of arrears of rent in a suit for eviction, the court is not competent to provisionally determine the arrears of rent which a tenant is required to deposit within a particular period of time. The relief for ejectment on the ground of default can be granted if it is found by the court that the tenant was in arrears of rent as contemplated under Section 13(1)(a) of the Act and the tenant has further failed to comply with the provisions of sub-sections (3) and (4) of Section 13 of the Act. We are, therefore, of the view that in a suit for ejectment of a tenant on the ground set forth in Section 13(1)(a) of the Act, the court is required to provisionally determine the amount of rent which a tenant is required to deposit in order to escape from the decree of eviction even if no relief is prayed for, for recovery of arrears of rent. In case the rent is deposited, the landlord is entitled to get the arrears of rent as the tenant has relieved himself of the decree of eviction."
23. In Krishna Gopal v. Ramchandra, 2006 SCC OnLine Raj 188, this Court made following observations regarding the compliance of Section 13(3) and 13(4) of the Act:
"11. Following substantial questions of law were framed by this Court while admitting the appeal on 8.2.2002:--(Downloaded on 13/08/2024 at 08:34:57 PM)
[2024:RJ-JD:32362] (15 of 18) [CMA-1504/2006] "(1) Whether the for of Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act would be attracted, even in cases where a suit for eviction relating to commercial premises is filed within a period of five years from the date of letting out on the ground of reasonable and bonafide necessity, coupled with other grounds enumerated in Section 13(1) of the Act as well?
(2) Whether in the circumstances like the present case, the plaintiff gives up the grounds of reasonable and bonafide necessity and sub letting, can it be said that the suit, from the inception remained a suit for eviction only on the ground of default so as to absolve the defendant from the obligation of complying with the provisions of Section 13(3) and 13(4) of the Act?
(3) Whether the learned lower appellate Court is right in holding that there is no waiver of the default committed by the tenant, notwithstanding the fact that the landlord has withdrawn the amount of rent deposited by the defendant from the Court simply because the amount was not directly paid to the landlord?"
...
14. The substantial question No. 2, in fact also does not survive in this appeal because of the simple reason that even if present suit is treated as a suit for eviction on the ground of default alone from inception because of withdrawal of all grounds of eviction by the plaintiff-landlord, the suit on the sole ground of default could not have been dismissed by the trial Court after determination of rent and its deposit by the tenant in Court. Section 13A of the Act of 1950 inserted by the amendment is also relevant because of the reason that in view of sub- clause (b) of Section 13A of the Act of 1950, the Court is required to dispose of the suit of the landlord on deposit of the rent by the tenant, whereas no such analogous provisions has been made under the provisions of Section 13(3), (4), (5), (6) and (7) of the Act of 1950 of disposal of the suit on depositing the rent by the tenant only. Section 13(3) and (4) are specific provisions for determination of rent and its deposit by the tenant during pendency of the suit. Section 13(4) of the Act of 1950 clearly provides that tenant shall deposit the rent till the suit is decided and that too, within the period as provided under Section 13(4) of the Act of 1950. Therefore, even if suit remains on the ground of default alone from the inception, the defendant is not absolved from obligation of complying with the (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (16 of 18) [CMA-1504/2006] provisions of Section 13(4) of the Act of 1950. The substantial question No. 2 is, therefore, answered accordingly."
24. In view of the above-mentioned judgments and provisions of the Act, it is the settled position of law that Section 14(2) of the Act would be applicable only in cases where the eviction decree is being considered to be passed on the ground set forth in Section 13(1)(h) (i.e., reasonable and bonafide necessity) alone. Further, a decree for eviction can be passed on the sole ground set forth in Section 13(1)(a) (i.e. default in payment of rent) if the following essentials are met:
(i) The tenant was in arrears of rent as mentioned in Section 13(1)(a), and
(ii) He fails to comply with the provisions of Section 13(3) and 13(4) of the Act (meaning thereby that tenant's defence against eviction has been struck out under Section 13(5) of the Act).
25. In the present case, it is evident from the perusal of the Judgment and decree dated 09.04.2001 that one of the grounds on which the suit for eviction was filed by the appellant-landlord was reasonable and bona fide necessity as set forth in Section 13 (1) (h) of the Act and the learned trial court framed issue no. 3 in this respect. However, the learned trial court decided this issue of reasonable and bona fide necessity against the appellant-landlord. As the issue pertaining to reasonable and bona fide necessity was not decided in favour of the appellant-landlord, therefore, Section 14(2) of the Act, which lays down certain provisions (including partial eviction) that a court has to consider before proceeding to pass a decree on the ground set forth in Section 13(1)(h) of the (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (17 of 18) [CMA-1504/2006] Act, was not applicable and resultantly the issue of partial eviction was not required to be considered. And thus, the order of the learned appellate court remanding the matter back to the learned trial court for framing and adjudicating the issue of partial eviction is arbitrary and perverse.
26. Further, as the respondents failed to comply with the provisions of Sections 13 (3) and 13 (4) of the Act, their defence was struck out under Section 13 (5) of the Act and eventually the eviction decree was passed on the sole ground of 'default in payment of rent' as set forth in Section 13 (1) (a) of the Act and not on the ground of 'reasonable and bona fide necessity' as set forth in Section 13(1)(h). Hence, Section 14 (2) of the Act was not applicable. Thus, once the learned Tribunal after examining each and every aspect of the matter gave a finding that there was no reasonable or bona fide need for the respondents for the shop in question then in such a case, remanding the matter back for deciding the issue of partial eviction would be a futile exercise.
27. Therefore, this Court finds that the learned appellate court has erred in remanding the matter back to the learned trial court on the sole ground that the latter has neither framed an issue on partial eviction nor considered the same. Further, the cases relied upon by the learned counsel on behalf of the respondents are not applicable on the present factual matrix as in all the cases cited by the respondents the eviction decree was based on the ground set forth in Section 13 (1) (h) of the Act.
28. Therefore, in view of the discussion in the above paragraphs, the impugned order dated 13.09.2006 passed by Additional (Downloaded on 13/08/2024 at 08:34:57 PM) [2024:RJ-JD:32362] (18 of 18) [CMA-1504/2006] District Judge, Bhinmal, District Jalore in Civil Regular First Appeal No. 06/2001 is quashed and set aside.
29. Resultantly, the civil misc. appeal is allowed.
(DR. NUPUR BHATI),J Reserved-DJ/-
(Downloaded on 13/08/2024 at 08:34:57 PM) Powered by TCPDF (www.tcpdf.org)