Rajasthan High Court - Jaipur
Geesu Lal Alias Gheesu Singh vs Noratmal Jain Thr Lrs on 31 March, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Civil Second Appeal No. 88 / 2017
Gheesu Lal @ Gheesu Singh , S/o Sita Ram B/c Chauhan, Aged
About 71 Years, House No.178, Mahamandir Gali, Pipaliya Bazar,
Beawar, Distt. Ajmer (Raj.)
----Appellant
Versus
Noratmal Jain S/o Shri Kesari Mal (Since Deceased) Through His
Legal Heirs:- , Since deceased through legal representatives-
1. Smt. Rajrani W/o Late Shri Noratmal Jain B/c Jain, Vijay
Bhawan, N.H. No.8, Near Roopbani Cinema, Beawar, Distt. Ajmer
(Raj.)
2. Shri Ram S/o Late Shri Noratmal Jain B/c Jain, Vijay Bhawan,
N.H. No.8, Near Roopbani Cinema, Beawar, Distt. Ajmer (Raj.)
3. Shri Shyam S/o Late Shri Noratmal Jain B/c Jain, Vijay Bhawan,
N.H. No.8, Near Roopbani Cinema, Beawar, Distt. Ajmer (Raj.)
4. Smt. Sangeeta D/o Late Shri Noratmal W/o Shri Ajay Chopra
B/c Jain, Vijay Bhawan, N.H. No.8, Near Roopbani Cinema,
Beawar, Distt. Ajmer (Raj.)
5. Smt. Sulekha Nahar D/o Late Shri Noratmal W/o Shri Vikas
Nahar B/c Jain, Vijay Bhawan, N.H. No.8, Near Roopbani Cinema,
Beawar, Distt. Ajmer (Raj.)
(2 of 6)
[CSA-88/2017]
6. Smt. Sapna D/o Late Shri Noratmal W/o Shri Sajnay B/c Jain,
Vijay Bhawan, N.H. No.8, Near Roopbani Cinema, Beawar, Distt.
Ajmer (Raj.)
----Respondent
_____________________________________________________ For Appellant(s) : Mr. Jai Prakash Gupta Adv. For Respondent(s) : Mr. Alok Chaturvedi Adv. _____________________________________________________ HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA Judgment Judgment Reserved on : 16/02/2017 Judgment Pronounced on : 31/03/2017
1. Instant second appeal is directed against the concurrent finding reached by both the Courts below in a suit for eviction filed by the predecessor of the respondent-plaintiff. Both the Courts below have concurrently held that the defendant-appellant was guilty of non-user as contemplated u/Sec.13(1)(j) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and hence liable to be evicted from the suit premises. The issue of default and arrears of rent was also decided against the defendant-appellant by both the Courts below but the finding of first default was extended as per the Rent Control Act of 1950.
2. Learned counsel for the defendant-appellant attacked the correctness and legality of the judgment and decree of both the Courts below mainly on the ground that the burden to prove non- user laid on the respondent-plaintiff which was not discharged by (3 of 6) [CSA-88/2017] him and the first appellate authority erroneously rejected the application filed by the defendant-appellant u/Ord.41 Rule 27 CPC and both the courts below committed a grave mistake in holding the defendant-appellant a defaulter. Counsel contended that the pleading regarding non-user was insufficient and both the Courts have wrongly appreciated the facts and material available on record which led to an erroneous and illegal conclusion.
3. In support of his submissions, counsel placed reliance on the judgment of the Apex Court as well as of this Court in the case of Wadi Vs. Amilal and Ors. (2015) 1 SCC 677 & Gauri Lal Vs. Gujar Mal Through his legal Representatives 1992 (1) WLC (Raj.) 437.
4. Per-contra, ld. counsel for the respondent-plaintiff while supporting the judgment and decree of both the Courts below contended that the findings concurrently reached by both the Courts below were pure findings of fact & cannot be re- appreciated by this Court u/Sec.100 CPC and reliance was placed on the judgment of this Court in the case of Girraj Prasad & Ors. Vs. Smt. Tara Devi & Ors. 2011(1) WLC 461 and Sant Lal Vs. Harbans Singh 1982 Vol.33 RLW 274.
5. I have heard the learned counsel for the parties and have perused the material available on record and given my thoughtful consideration to the rival contentions raised and also gone through the impugned judgment and records.
6. It is a settled proposition that in an adversary system where both the rival parties led evidence on an issue, question of burden (4 of 6) [CSA-88/2017] of proof becomes academic and pales into insignificance. The Court keeping in mind the principles of preponderance of probability has to scrutinize and evaluate the entire evidence led by the rival parties and then has to reach to a conclusion. In the instant case, both the Courts below after assessing and evaluating oral as well as documentary evidence have concurrently held that the defendant-appellant was guilty of non-user as contemplated u/Sec. 13 (1) (J) of the Rent Act of 1950 and such is essentially a finding of fact as held by this Court in the case of Sant Lal Vs. Harbans Singh (surpa). Both the Courts below have noted that the defendant-appellant even did not turn into witness box in support of his case and power of attorney holder who appeared was not fully conversant with the facts and circumstances of the case. Upon a cumulative assessment of the above important fact along with the evidence of the parties, the Courts decided the issue No.4 regarding non-user against the defendant-appellant which is purely a factual conclusion on which no perversity or illegality is found by this Court.
7. In so far as the contention of the appellant that there was insufficient pleadings with respect to the ground of non-user and as such substantial question of law is involved, being merit-less deserves to be rejected and the basic purpose of pleadings is to put the opposite party to notice as to what case he has to meet. Once the opposite party understands the essence of the case, he has to meet insufficiency of pleading which looses significance. Besides after a careful perusal of the plaint in the instant case, this Court does not find any lack of pleadings as urged by the ld.
(5 of 6) [CSA-88/2017] counsel for the appellant. Apart from that the said objection was not raised either in the written statement or before the first Appellate Court and hence cannot be raised for the first time in second appeal.
8. In so far as the contention of the appellant that the application under Order 41 Rule 27 CPC for taking on record the certain documents being wrongly rejected, is concerned, the same too being without force deserves to be rejected. The First Appellate Court has held that with the aid of order 41 Rule 27, the appellant was not entitled to fill up those lacunae in his case which it could not at the 1 st instance. It was further held that no explanation was forwarded by the appellant for not producing any documents before the Trial Court for a sufficient long time, the existence of which during trial was not denied. This Court concurs with the view of the first Appellate Court.
9. Insofar as the findings with respect to default and arrears are concerned, these are purely finding of facts in which no perversity or illegality is found. Moreover, eviction was not granted on the ground of default and benefit of first default was extended.
10. As far as the judgments relied upon by the counsel for the appellant are concerned, the same are inapplicable to the facts and circumstances of the case. In Gauri Lal Vs. Gujar Mal Through his legal Representatives (supra), the landlord had merely pleaded that the defendant was not doing any business in the premises and the shop remained closed to which the tenant replied that he himself was using the shop, upon these pleadings, (6 of 6) [CSA-88/2017] the issue framed was also not in consonance with the terminology of section 13(1)(j) and in such circumstances, the Court held the pleadings to be vague and did not grant eviction on the ground of non-user.
11. In Wadi Vs. Amilal and Ors. (supra), the Hon'ble Apex Court has laid down the proposition that invocation of clause (b) of Rule 27(1) does not depend upon vigilance or negligence of parties and certified copy of the mutation record which in the opinion of the Court throws light on the germane issue, is necessary for pronouncing the judgment. Thus, the above judgments are inapplicable.
12. Taking into consideration the aforesaid, this Court does not find any perversity or illegality in the concurrent finding returned by both the Courts below and does not find any substantial question of law involved in the instant second appeal and the same being devoid of merit, is hereby dismissed, with no order as to cost.
(JAINENDRA KUMAR RANKA)J. S.Kumawat Jr. P.A.