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1984 DIGILAW 193 (PAT)

Md. Israil v. Bibi Asghari

1984-05-09

A.K.SINHA

body1984
JUDGMENT : A. K Sinha, J.-This second appeal is by the defendant (tenant) against a JUDGMENT : of affirmance. 2. The plaintiffs brought a suit for eviction of the defendant (tenant) on the ground of default in payment of rent for the months or April to October, 1977 and also on the ground of personal necessity. The defendant was inducted in the house in question by the original owner, i.e. Hari Mohan Jhunjhunwala. The original owner sold the house to plaintiff no. 2 On 12.4.1977 by a registered sale-deed. Plaintiff no. 2 purchased the house in question in the name of plaintiff no.1 (his wife). The defendant was a month to month tenant in the house in question at the rate of Rs. 351- per month according to the English calendar. The original owner after the sale of the house to plaintiff no. 2, served a notice upon the' defendant on 18.5.77 informing him that the house in question was sold to the lady (Plaintiff no. 1) and further directed the defendant to pay rent to the plaintiffs. 3. The plaintiffs' case was that defendant did not pay rent for the months in question amounting to Rs. 245/- and hence, he was a defaulter in the eye of law.. 4. The plaintiffs also pleaded that they were residing as tenants in the house of one Dr. Hasan Ahmad and their land-lord was pressing upon them to vacate his premises and hence the plaintiffs were in need of the house in question for their own occupation. The plaintiffs also pleaded that the tenancy of the defendant had been terminated and determined under section 106 of the Transfer of Property Act with the expiry of 31st July, 1977. As the defendant did not vacate the house in question, it necessitated the filing of the present, suit. 5. The defendant contested the suit and denied the case of personal necessity as pleaded by the plaintiffs. So far as the default question was concerned, the defence was that the defendant tendered the rent to plaintiff no. I which was illegally refused by her and thereafter he has been sending the rental every month by money ORDER :s. 'According to the defendant the suit was instituted just to pressurise the defendant as he did not agree to enhance the relit from Rs. I which was illegally refused by her and thereafter he has been sending the rental every month by money ORDER :s. 'According to the defendant the suit was instituted just to pressurise the defendant as he did not agree to enhance the relit from Rs. 35/- to 150/- The defendant also pleaded that the notice under section 106 of the Transfer of Property Act was not served in accordance with law 'and the tenancy was not determined. 6. The trial court decreed the suit and held that the defendant had defaulted in paying the rent for the months in question in the eye of law, as the remission of the rental every month for the months in question was not enough in the eye of law and the defendant as and when remitting the rent should have remitted the total rent due. 7. The trial court having held that the defendant was a defaulter in the eye of law did not consider the question of personal necessity at all. 8. The defendant preferred appeal. The court of appeal below dismissed the defendant's appeal and held that the defendant was a defaulter in the eye of law and he was liable to be evicted from the suit premises. It further held that the plaintiffs required the suit premises for their own use, occupation and business, as the plaintiffs were running their business in a rented shop. 9. The learned Counsel appearing for the defendant has submitted that the court of appeal below has gone wrong in law to hold that the defendant must prove refusal (by the landlord) within time. The learned Counsel further submitted. that the finding given by the court of appeal below to the effect that the plaintiffs required the suit premises for ,their personal necessity was not binding in second appeal, as it had made out a third case. According to the learned Counsel, the plaintiffs required the suit premises for their personal residence; whereas, the court of appeal below has held that the suit premises were required for running the plaintiffs' business. 10. In ORDER :to appreciate the argument advanced by the defendant appellant it is desirable to state a few more facts. The defendant has pleaded that there is no default as he has been remitting the rental every month at the rate of Rs.35/- by money ORDER :, to plaintiff no. 10. In ORDER :to appreciate the argument advanced by the defendant appellant it is desirable to state a few more facts. The defendant has pleaded that there is no default as he has been remitting the rental every month at the rate of Rs.35/- by money ORDER :, to plaintiff no. 1 which was always refused. In ORDER :to subaintiate the defence, the defendant filed seven money ORDER :receipts, marked Exts. A to A/6 in ORDER :to prove that the rental was in fact, sent through post office. 11. It seems the money ORDER :coupons which came back, having been refused, were also filed by the defendant. But the defendant did not care to get them exhibited. From the perusal of the trial court JUDGMENT : it seems that the money ORDER :coupons produced before the trial court were just kept in 'B' file of the records. Those coupons were kept in 'B' file without being marked as au exhibit or without even giving any mark for identification. It seems the defendant on 9.11.1979 filed an application praying for marking those money ORDER :coupons as exhibits. But the trial court did not mark them as exhibits. Only the money ORDER :receipts were marked as exhibits (Exts. A to A/6). The Court having rejected the application of the defendant, the defendant felt satisfied and did not move the higher Court against that ORDER :. 12. The money ORDER :receipts did not show as to for which month the rental was sent. It also obviously did not show that it was refused. The money ORDER :coupons, if exhibited, could only show that the rental for the months in question were remitted within the statutory period and that they were refused by the landlord for reasons best known to the defendant, the money ORDER :coupons though produced before the trial court, ware not exhibited. In that view of the matter these money ORDER :coupons could not be looked into in the eye of law and the defendant tenant is left with the money ORDER :receipts. These money ORDER :receipts, as stated above, do not show/, prove as to for which months they relate to, with the result one cannot come to a conclusion that the rental for the months in question was, in fact, remitted by money ORDER :. These money ORDER :receipts, as stated above, do not show/, prove as to for which months they relate to, with the result one cannot come to a conclusion that the rental for the months in question was, in fact, remitted by money ORDER :. The only logical conclusion to which one can arrive at is that the defendant has failed to prove that he has been remitting rent of the months in question within the statutory period and that they were refused. Thus, the court of appeal below, in my opinion, very correctly came to a conclusion that the defendant was defaulter, in the eye of law. 13. In view of the fact that defendant was a defaulter in the eye of law; the other submission advanced by the learned Counsel for the appellant need not be decided, as even if the submission of the learned lawyer for the defendant is accepted, the defendant remains a defaulter and liable to be evicted. 14. In the result, this appeal fails and is dismissed. However, there will be no ORDER :as to costs. Appeal dismissed.