Rajasthan High Court - Jaipur
Jagdish Prasad vs Vishnu Kumar And Ors. on 29 April, 2004
Equivalent citations: RLW2004(3)RAJ2043, 2004(3)WLC586
JUDGMENT A.C. Goyal, J.
1. This is the second appeal by the defendant- tenant against the concurrent judgments and decree of eviction.
2. Briefly narrated the facts are that the original landlord Smt. Mehtab Devi filed a civil suit for arrears of rent and eviction with the averments that the defendant Sh. Jagdish Prasad is the tenant in a Thadi' situated outside her house at Jaipur w.e.f. 8.5.1969. The eviction was sought the grounds of default in payment of rent, sub-letting and nuisance.
3. The defendant in written statement while admitting the tenancy pleaded that he is the tenant for the last 25 years. All the grounds of eviction were denied by him.
4. During the pendency of the suit, the landlord Smt. Mehtab Devi died, hence her legal representatives were brought on record.
5. Issue were framed. Evidence was recorded. Learned Additional Civil Judge (Junior Division) No. 3, Jaipur City, Jaipur vide judgment dated 27.5.1997 decided issue No. 1 of Sub-letting, issue No. 2-A of default in favour of the plaintiff and while deciding issue No. 2 of nuisance against the plaintiff passed a decree of eviction in favour of the plaintiff.
6. Civil First Appeal No. 74/1997 filed by the defendant-tenant was dismissed vide impugned judgment dated 16.4.2001 by learned Additional District Judge No. 3, Jaipur City, Jaipur.
7. I have heard learned counsel for the parties. The relationship of the landlord and the tenant between the parties is not in dispute. As per the written statement of the defendant he is the tenant since 1961. According to learned counsel for the defendant-appellant the suit for eviction was filed in July, 1985. It was pleaded in the plaint that rent from 1.1.1985 to 31.7.1985 is due. Thus the rent for seven months was due at the time of filing the suit according to the plaintiff herself. It was the case of the defendant-appellant that since the plaintiff refused to receive the rent for the months of January and February, 1985, he remitted the rent of these two months by money-order on 4.3.1985 but the plaintiff refused that money- order also and thus the rent for six months was not due at the time of filing the suit.
8. The trial court observed that it is not prima facie clear that the plaintiff-landlord refused to receive the money-order and in case it is assumed that she refused to receive the money- order, it was the duty of the defendant-tenant to give a notice to the plaintiff to disclose the bank account number or should have deposited the rent under Section 19-A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act). In the first appeal, the learned Judge did not record any positive finding as to whether the plaintiff-landlord refused to receive the money-order but observed that in case the plaintiff refused to receive the money-order it was the duty of the defendant to remit the rent for subsequent months by money-order or should have deposited the rent in the court and therefore, the finding of default was affirmed.
9. The submissions made by learned counsel for the appellant on this point have got merit. It is made clear that at the time of filing the suit, only seven months rent was due according to the plaintiff herself. But by subsequent amendment in the plaint it was preyed that rent is due from 1.1.1985 to 31.8.1986 and thus issue was framed accordingly. But under the provisions of Section 13 (1) (a) of the Act it was to be seen whether the tenant neither paid nor tendered the amount of rent due form him for six months before institution of the suit of eviction on this ground. It was submitted by learned counsel Sh. Bhandari that remittance of rent by money-order was not found proved. But this submission is devoid of merit even the trial court did not record any definite finding on this point and the First Appellate court also did not record any finding on this point. There was statement of the defendant-tenant as well as he produced two documents-Ex-A1 receipt of money-order and Ex.A2 coupon and in view of this oral as well as documentary evidence remittance of rent for two months by money-order was well proved. It is also significant to say here that the findings on this issue by the courts below are mainly based upon that this remittance was not enough as the tenant did not comply with the provisions of Section 19-A of the Act. This findings, though concurrent is erroneous in view of the Division Bench judgment of this court delivered in Smt. Manak Bai and Ors. v. Kalyan Bux (1), wherein it was held that it is not obligatory on the part of the tenant to deposit the rent in court under Section 19-A of the Act to escape from liability of eviction despite the fact that the landlord refused the acceptance of rent remitted by money-order.
10. It was next submitted by learned counsel for the appellant that the findings of the courts below on the point of sub-letting are also perverse and contrary to the provisions of law. he placed reliance upon a number of judgment. In Chhander Kishore Sharma and Anr. v. Smt. Kampa Wati (2), it was held that where father and son are living in a portion, it is substantial question of law. In Rasham Singh v. Raghbir Singh and Another (3), it was held that the question of sub-letting is conclusion on a question of law derived form the finding on the materials on record. In Karshaka Union v. Bahuleyan (4), the Kerala High Court held that in case of sub-letting mere parting with possession is not sufficient unless it is parting with legal possession. In Benjamin Premananed Rawada (Dead) by Lrs. v. Anil Joseph Rawade (5), the Hon'ble Supreme Court held that in case of sub-letting it should be proved that the sub-tenant was in exclusive possession and that there was relationship of lessee and lessor between the tenant and the sub-tenant. In Umrao v. Smt. Minu @ Manju Sanghi (6), the Punjab and Haryana High Court held that it is not a case of sub-letting in favour of son if the tenant continued visiting the shop. In Jagan Nath (Deceased) Through Lrs. v. Chander Bhan and Ors. (7), it was held that in case of joint Hindu family when the tenant carries on business with the help of his son, it does not amount to sub-letting. The judgment delivered in Hardev v. Jaidev through his legal representatives, (8), has no application to the question involved in the instant case as it relates to hereditary tenants. In Kala and Another v. Madho Prashad Vaidya (9), it was held that burden lies upon the landlord to prove sub-letting.
11. It was also contended by learned counsel for the appellant that the courts below had drawn an adverse inference against the appellant on account of non-production of bills etc. but there was no evidence to prove the existence of any such documents, hence adverse inference was wrongly drawn. He placed reliance upon Bhoolchand and Another v. Kay Pee Cee Investments and Another (10) and Mohinder Kaur v. Kusam Anand (11). It was held by Hon'ble the Supreme Court in both the judgments that such an adverse inference can be drawn if the existence of the document and its possession with the part was established and party was asked to produce the document in the court.
12. Per contra, learned counsel for the respondent contended that both the courts below having considered the entire evidence arrived at concurrent finding and the same is not perverse. He also placed reliance upon some of the judgments. In Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (12), it was held that in case the tenant had given possession of the rented premises to his brother, it amounts to sub-letting. In Gurudev Singh and Anr. v. Mohd. Abdul Razzak (13), it was held that in case the appellate decree is based on full appreciation of the evidence, there is not legal error in passing the decree of eviction on the ground of sub-letting. In Hans Rajand Another v. Naval Kishore and Ors. (14), the Punjab and Haryana High Court held that when the tenant parted with the possession in favour of his brother and there was no evidence that they formed a joint Hindu Family, it amounts to sub-letting. In Brij Mohan v. Smt. Krishna Wanti (15), it was held by Delhi High Court that the shop was let out to the wife and it was the husband who was carrying on business, it amounts to sub-letting. In Banta Singh v. Vishwa Nath and Ors. (16), the Punjab and Haryana High Court held the when the tenant gave possession of the shop to his father it would amount to sub-letting, in M.V. Swami v. Ameer Basha and Anr. (17), the Madrash High Court held that name board of the sub-tenant in this regard, it amounts to sub-letting. In Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. (18), it was held that a party in possession of best evidence which would throw light on the issue in controversy withholding the same, the Court should draw an adverse inference against him notwithstanding that onus of proof does not lie on him.
13. I have considered the rival submissions, the judgments of the courts below and the judgments relied upon. In para 3 of the plaint, it was specifically pleaded that the defendant-tenant has left Jaipur and has settled at his village Bichun and has started Kirana business at his village Bichun and sub-let the shop in question to Sh. Gopal. In para 3 of the written statement the fact of sub-letting was denied but the remaining facts were not denied that he has shifted to his village and has started Kirana business there. A perusal of the memo of the first appeal filed by the appellant-tenant goes to show that the appellant-tenant admitted this fact that Sh. Gopal who is brother of the tenant and his son are carrying on business in the suit shop, though in the name of the appellant-tenant. Both the courts below having appreciated the entire evidence on record rightly came to this concurrent finding that the defendant-tenant sub-let the suit shop to his brother Gopal and it is not a case of joint Hindu family business and see no reason to interfere with the said concurrent finding which has been arrived at having considered the entire evidence in detail.
14. Learned counsel for the appellant raised one more point and that is that the agreement provided for giving one month notice filing the suit and it is admitted case that the plaintiff- landlord did not serve any notice, hence the suit was not maintainable. He placed reliance upon one judgment of this Court Prakash Mal and Ors. v. Jaswant Raj Soni (19), wherein it was held that in case of tenancy based on contract stipulating notice, it would be necessary for the landlord to serve a notice prior to filing the suit for eviction. While placing reliance upon Burma Sheel Oil Storage and Distributing Co. Of India Ltd. v. State of Uttar Pradesh (20), it was contended that in case tenant sholding over, it was necessary for the plaintiff-landlord to serve a notice before filing the suit. Learned counsel for the respondents contended that no such objection was taken by the defendant-tenant before the trial court and this objection was raised for the first time in the first appeal and the same was negatived and rightly so.
15. I have considered the above submissions. In view of the pleadings of the parties on this point, the contention of learned counsel for the respondents carries weight that no such objection was raised before the trial court and it amounts to waiver on behalf of the appellant-tenant. It is pleaded in para 2 of the plaint that it was agreed upon between the parties that the tenant would not transfer the tenancy right to anyone and in case of violation of this condition, the plaintiff-landlord would have a right to eviction without giving any notice. In para 2 of the written statement these averments were not denied at all and it amounts to implied acceptance of these facts by the appellant- tenant. It was further pleaded in para 7 of the plaint that no notice is required before filing the present suit and in para 7 of the written statement it was pleaded that notice was required according to law. It is significant to observe here that no such plea was taken that notice was required on the basis of the agreement of tenancy between the parties. It is also significant to say here that no such issue was framed and no such objections was raised by the tenant before the trial court. The possibility cannot be ruled out that in case such objection would have been taken by the defendant, the plaintiff-landlord might have made a prayer for withdrawal of the suit for filing another fresh suit after complying with the objection of notice.
16. This objection was raised for the first time before the First Appellant Court. In para 10 of the judgment it was observed by the First Appellate Court that the judgment of this court delivered in Prakash Mal and Ors's case (supra) is not applicable, because it was agreed upon between the parties that tenancy would be for a period of 11 months and after expiry of 11 months no notice was required by the plaintiff. The judgment of Allahabad High Court in M/s. Burma Shell Oil Storage and Distributing Co. of India Ltd's case (supra) is with reference to statutory notice as required under Section 106 of the Transfer of Property Act. Hence the finding on this point by the First Appellate Court does not appear to be erroneous.
17. In view of the entire discussions made hereinabove, the concurrent finding of the courts below on the point of default in payment of rent cannot be upheld. The findings of the courts below on the question of sub-letting is found to be quite justified, hence no case is made out for admission of this second appeal.
18. Consequently, this second appeal along with stay application is hereby dismissed at the admission stage.