Rajasthan High Court - Jodhpur
Lrs Of Prabhu Dayal vs Chandra Bhan on 26 March, 2012
S.B. Civil Second Appeal No. 70/2010
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
S.B. CIVIL SECOND APPEAL NO. 70/2010 LRs of late Prabhu Dayal Versus Chandra Bhan Date of Judgment : 26.03.2012 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. J.K. Bhaiya for the appellants Mr. Daya Ram Choudhary for the respondent This civil second appeal has been preferred by appellant-defendants being aggrieved by the judgment and decree dated 18.02.2010 passed by learned Additional District Judge (Fast Track) No.2, Bikaner in Civil Appeal Decree No.17/2009, whereby the learned first appellate court dismissed the appeal of the appellant-defendants and affirmed the judgment and decree dated 23.10.2001 passed by learned Additional Civil Judge (Junior Division) and Judicial Magistrate, First Class, No.2, Bikaner in Civil Original Suit No.23/1999, whereby the learned trial court decreed the suit filed by the respondent-plaintiff for arrears of rent and eviction of the suit premises The brief facts of the case are that the respondent- plaintiff filed a suit for arrears of rent and eviction under the Page 1 of 10 S.B. Civil Second Appeal No. 70/2010 Rajasthan Premises (Control of Rent and Eviction) Act, 1950 on 27.03.1998 against original defendant Prabhu Dayal. It was averred in the plaint that the appellant-defendant took on rent a premises situated behind the Nagar Parishad, Near Kirti Stambh belonging to the respondent-plaintiff on the rent of Rs.60/- per month by way of oral agreement accompanied by delivery of possession and the tenancy is month by month, which starts on the first day of every month and ends on the last day of the month. It was further averred that the defendant had paid rent upto February 1984 and thereafter the rent was not paid, upon which the plaintiff filed a suit against the defendant on the ground of default. The said suit was decided on 31.05.1990, whereby the trial court in that suit while granting the benefit of first default to the defendant, dismissed the suit. It was further averred that in that suit the rent was deposited upto May 1990 and after May 1990, it was the duty of the defendant to make the payment month by month as and when it becomes due, but the defendant while violating the provisions of the Act of 1950, sent the rent by an interval of three months from June 1990 to June 1996 through money order, thus, the defendant has not made the payment of rent as and when it became due. It is averred that the defendant has neither tendered nor paid the rent of 18 Page 2 of 10 S.B. Civil Second Appeal No. 70/2010 months from July 1996, thus, he has committed second default. Hence, the respondent-plaintiff filed the suit for arrears of rent and eviction of the premises in question.
The defendant filed written statement and averred that it was agreed that it will be duty of the plaintiff to raise the demand of rent and collect the same from the defendant month by month as and when the same becomes due and no occasion has arisen when the plaintiff raised the demand of rent and the defendant did not pay the same, thus, he has never committed any default. It was further averred that rent upto year 1996 was recovered irregularly by the plaintiff and no demand has been raised by the plaintiff from July 1996. The rent was offered to the plaintiff, but he refused to accept the same, therefore, the same was sent through money order, which also was not accepted by the plaintiff. Hence, the rent was deposited in the court under Section 19A of the Act of 1950. Thus, it was prayed that the suit may be dismissed.
On the basis of the pleadings of the parties, the learned trial court framed as many as 3 issues. Both the parties adduced their respective oral as well as documentary evidence in their support.
After hearing the parties, the learned trial court decided all the issues in favour of the plaintiff and vide Page 3 of 10 S.B. Civil Second Appeal No. 70/2010 judgment and decree dated 23.10.2001 decreed the suit in favour of the plaintiff.
Feeling aggrieved and dissatisfied by the judgment and decree passed by the trial court, the defendant preferred an appeal before the learned lower appellate court. The learned lower appellate court vide judgment and decree dated 18.02.2010 dismissed the appeal and affirmed the judgment and decree passed by the trial court. After passing of the judgment by the learned lower appellate court, original defendant Prabhu Dayal died and his LRs have been brought on record as appellant-defendants.
Being aggrieved and dissatisfied by the judgments and decrees passed by the courts below, the appellant- defendants have filed this civil second appeal.
The learned counsel for the appellant-defendants contended that the impugned judgments and decrees passed by the courts below suffer from manifest perversity and material illegality.
It is contended that the learned courts below have only considered the written receipt of the money order Ex.A/2 and challans Ex.A/2 to A/7 and given the finding that the refusal was acknowledged to the appellant-defendant on 11.10.1996 and the amount of rent ought to have been Page 4 of 10 S.B. Civil Second Appeal No. 70/2010 deposited within 15 days, i.e. Upto 26.10.1996, whereas the said amount was ordered to be deposited on 01.11.1996 vide Ex.A/7, therefore, it is beyond limitation and bad in the eye of law. The said finding is bad in law and perverse for the reason that the application for deposition of rent was filed by the appellant within limitation and on the date of filing of the application, it was presumed to tender such deposition and subsequent period for report and process and orders of court for deposition of the rent is a part of proceedings and immaterial. It is contended that the appellant took specific plea in this regard before the courts below.
The learned counsel for the appellant-defendants further contended that the learned first appellate court has committed manifest perversity in holding that the learned trial court has given finding that the deposition of rent by the appellant is invalid because of non-compliance of Section 19A (1) and 19A(3) of the Act of 1950, whereas, the learned first appellate court could not give finding that there was no requirement to make compliance of both the procedures and the mode of remitting the rent was justified. However, the amount has not been deposited in the court as per clause (b) of sub-section (3) of Section 19A of the Act of 1950, hence, the entire deposition is invalid, therefore, it is clear that both Page 5 of 10 S.B. Civil Second Appeal No. 70/2010 the courts below have proceeded in difference angles and their findings are not concurrent.
The learned counsel for the appellant-defendant further contended that the learned courts below have failed to consider that the appellant has complied with the provisions of Section 19A (1) for remittance of rent and adopted one mode to send rent by money order, which has been proved on record and then, it is well established principle of law that subsequent deposition in the court is not mandatory but optional.
The learned counsel for the appellant-defendant further contended that the learned courts below have committed serious perversity and material irregularity while deciding the issue No.1 in favour of the plaintiff because the learned courts below have wrongly held that the defendant was not ready and willing to make the payment of rent after July 1996, whereas, on the contrary, it has not been considered that the defendant was always ready and willing to make the payment of rent, but was the plaintiff who did not raise demand of rent and collect the same. Further it has not been taken as a ground by the plaintiff that the rent in question has wrongly been deposited under Section 19A of the Act of 1950, however, the learned courts below have given the Page 6 of 10 S.B. Civil Second Appeal No. 70/2010 finding that the rent has not been tendered under the provisions of Section 19 A of the Act of 1950, therefore, the defendant is defaulter. Further the learned courts below have ignored the pleadings of the defendant that the plaintiff was neither having bank account prior to 1996 nor is having the same after 1996 at Bikaner.
The learned counsel for the appellant-defendant further contended that the learned courts below have committed perversity in not considering the position that a legal fiction is created and the tenant is deemed to have paid or tendered the rent if he has paid, remitted or deposited the amount of rent by any of the three months specified in sub- section (3).
The learned counsel for the appellant-defendants has proposed the following substantial question of law in the memo of appeal :-
(a) Whether, the learned courts below have misread the material evidence and misunderstood the law point Section 19 A of the Act of 1950 involved in the matter ?
(b) Whether, the rent tendered according to Section 19 A (1) to the respondent landlord and proved on record, then it is not incumbent upon the appellant tenant to adopt recourse for depositing the rent under Section 19 A (3) (c) and deemed to be paid as proved under Section 19 A (4) of the Act of 1950 ?Page 7 of 10
S.B. Civil Second Appeal No. 70/2010
(c) Whether, the learned courts below have seriously erred in law that once the application is filed within limitation as provided under Section 19 A (3) (c) of the Act of 1950, then other mode of process and ordered to deposit such rent in court at the subsequent stage in the same process is immaterial, moreover after filing the application, if the appellant remained defaulter for depositing the rent while time taking in process then such deposit could not be said to be valid ?
(d) Whether, the learned courts below have failed to consider that the provisions of Section 19 A (3) of the Act are discretionary ?
(e) Whether, the learned courts below have failed to consider that the appellant has need compliance of Section 19 A (1) of the Act of 1950, then appellant is entitled to get benefit of Section 19 A (4) of the Act and eviction could not be ordered in the impugned manner and judgment ?
(f) Whether, the learned courts below have committed serious perversity while considering the contradiction, admission and concession in plaintiffs' evidence regarding mode of demand and acceptance of rent, existence of bank account of plaintiff ?
(g) Whether, plaintiff had oblique motive from the very inception in acceptance of rent, by conduct, plaintiff has waived his right to take plea of second default ?
(h) Whether, the learned courts below have given finding based on no legal evidence ?
Per contra, the learned counsel for the respondent- Page 8 of 10
S.B. Civil Second Appeal No. 70/2010 plaintiff has supported the judgments and decrees passed by the learned courts below and submitted that the impugned judgments do not suffer from any illegality, infirmity or perversity and the same deserve to be affirmed and the appeal deserves to be dismissed. It is submitted that the impugned judgments are based on proper appreciation of the facts and evidence available on record so also on consideration of the relevant provisions of law, therefore, no interference is called for in the present appeal.
I have considered the rival contentions raised by the learned counsel for the parties and perused the impugned judgments passed by the courts below so also the record of the case.
The suit was decreed by the trial court on the ground of wilful default and further the first appellate court dismissed the appeal of the defendant considering him to be a wilful defaulter. The contention of the learned counsel for the appellant-defendants that no case of second default is made out, does not carry any force. There is concurrent finding of both the courts below regarding the default committed by the defendant in paying the rent and the default in making the payment of rent is purely a question of fact and this fact has been considered by both the courts below in detail. I find no Page 9 of 10 S.B. Civil Second Appeal No. 70/2010 reason to interfere in the findings arrived at by the courts below. I have perused the substantial questions of law as proposed in the memo of appeal. In my considered opinion, no substantial question of law is involved in the present appeal and there is concurrent finding of fact arrived at by the courts below. The second appeal filed by appellant- defendants is devoid of any merit and the same deserves to be dismissed.
Consequently, this civil second appeal is dismissed at the admission stage and the judgments and decrees passed by the courts below are affirmed. No order as to costs.
However, looking to the fact that the appellant- defendants are residing in the suit premises since 1984, therefore, in the facts and circumstances of the case, two years' time is granted to the appellant-defendants to vacate the suit premises. The appellant-defendants shall file an undertaking before the trial court to the effect that they shall vacate the suit premises within two years from the date of this judgment. Such undertaking is to be filed within two months from the date of this judgment and in case of non-filing of such undertaking, the respondent-plaintiff shall be free to execute the decree.
[KAILASH CHANDRA JOSHI],J.
Pramod Page 10 of 10