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Rajasthan High Court · body

2003 DIGILAW 1558 (RAJ)

Kailash Chand v. Sukh Ram

2003-11-17

N.P.GUPTA

body2003
JUDGMENT : 1. - This second appeal has been filed by the defendant against the judgment and decrees of the learned courts below whereby the plaintiff's suit for eviction from the house in dispute has been decreed. 2. Since the respondent has entered caveat, vide order dated 5.8.2003 record of the learned courts below was ordered to be requisitioned, and thereafter on 6.11.2003, at the request of the learned counsel for the parties the appeal was heard for final disposal. 3. In the appeal the appellant has framed seven substantial questions of law. However, from the arguments that have been advanced by both the learned counsel, decipherable questions that have been argued are:- (1) Whether a suit for eviction based on the ground under Section 13(1)(j) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 could be decreed in absence of any pleading in the plaint about non-user of the premises "without reasonable cause" ? (2) Whether the decree for eviction could be passed on the ground of reasonable and bonafide necessity even without recording a positive finding about existence of the need as pleaded in the plaint viz. that the relations between the wife and mother of the plaintiff respondent No. 2 are strained on which account the suit premises are required ? Various other questions argued are only peripheral viz. that the learned courts below were in error in proceeding to decide the ground of eviction contemplated by Section 13(1)(j) by expecting evidence from the defendant, or whether the findings are perverse, or that the suit could be decreed simply because the Court found that the house in dispute remained locked for 16 months, and so on. 4. In that view of the matter, I proceed to consider the appeal on the anvil of the aforesaid substantial questions of law. 5. 4. In that view of the matter, I proceed to consider the appeal on the anvil of the aforesaid substantial questions of law. 5. Before proceeding further it may be observed that since the present appeal is an appeal by the defendant and the suit has been decreed on two grounds i.e. non-user of the premises for a continuous period of six months immediately preceding to the date of filing of the suit, without any reasonable cause, and on the ground of plaintiff's reasonable and bonafide necessity, until and unless the appellant is able to demolish both the grounds the appeal cannot succeed, inasmuch as even if one ground of eviction as found by the learned courts below stands, the decree cannot be set aside simply because another ground is shown to be not sustainable.Keeping the above in the background, I proceed ahead. 6. The facts of the case are that the plaintiff filed the present suit for eviction on 10.1.1987. The plaint was, however, subsequently amended, and the amended plaint was filed on 22.3.1990. The grounds of eviction were pleaded in para-2 of the plaint alleging that at the time of letting out of the premises the defendant was working in the Commercial Taxes Department, Jodhpur as Assistant Commercial Taxes Officer who has been transferred from Jodhpur 16 months ago and the defendant along with his family is living in Abu Road because they have been allotted accommodation there. Pleading these facts it was contended that the plaintiff is entitled to evict the defendant on the grounds (1) the house was let out for residential purposes which is not being used for the purpose for the last 16 months, and the house is locked, (2) that the defendant has been transferred 16 months ago where he has acquired another accommodation, and is living there with his family, and the house is lying totally locked, and the defendant and his family members are not living in the house in question, (3) default, (4) that the house is reasonably and bonafide required by the plaintiff because the wife of the plaintiff No. 1 and the wife of the plaintiff No. 2 are having strain relations, and therefore, house is required for housing the plaintiff No. 2, other pleading about comparative hardship and partial eviction were also taken. 7. 7. The defendant replied these averments by pleading that it is wrong to contend that the defendant has acquired any other accommodation at any other place, or the house is lying totally closed, or locked or that the defendant or his family members are not living in the house rather they are living in the house itself. It was also pleaded that the defendant is not in position to shift to another place, and that the defendant's mother is old and infirm and is a heart patient. It was also pleaded that the defendant is not in position to shift to another place, and that the defendant's mother is old and infirm and is a heart patient. It was also pleaded that it has not been clarified as to where and in what locality the defendant has acquired accommodation. The ground of default was also denied. Regarding bonafide necessity also the plea taken by the plaintiff was denied, and it was pleaded that the plaintiffs are living in the same house and there is no strain relations between the ladies, and the version projected is cooked up version. Learned trial court framed goods number of issues. However, the relevant are issue No. 4 to the effect as to whether the defendant has stopped living in the suit house for the last 16 months as on the date of the suit, locked the house, and has stopped using it, and the plaintiff is entitled to decree for eviction on that ground. Then issue No. 5 was on the question of reasonable and bonafide necessity of the plaintiff No. 2. Issues No. 6 and 7 were comprehending the question about comparative hardship and partial eviction, while issue No. 3 was about default. The learned trial court found these issues No. 3, 4, 5 and 6 against the defendant and decreed the suit. Deciding issue No. 2 it was held that the defendant has failed to prove that he ever remitted the rent by draft as pleaded, while deciding issue No. 4 it was held that the defendant himself has admitted that he has been transferred to Abu Road and Churu and at both these places he remained for five years, his four children have been admitted at Abu Road. He has also admitted that his wife and mother also accompanied him. He has also admitted that his wife and mother also accompanied him. However, he has deposed that his mother and wife remained in the suit house but then this part of the testimony has been disbelieved on the ground that the defendant has failed to produce ration card, or water and electricity bill. Likewise, learned trial court also considered the version of the defendant about having repaired the house some 4-5 years ago by holding that normally the house is repaired every year but it appears that the house remained closed for long time, and thereafter when they started re-using it was repaired while it is during this interregnum period that the suit was filed. Thus it was found that at the time of filing of the suit the defendant has stopped using the house for the last 16 months and had locked it. Deciding issues No. 5 and 6, the learned trial court held that the plaintiff has reasonable and bonafide necessity, comparative hardship and partial eviction were also decided in favour of the plaintiff. 8. Before the learned lower Appellate Court it was contended that if the landlord does not accept (rent) even despite tendering, the defendant cannot be said to be defaulter, and that notwithstanding the fact that no rent was actually outstanding still decree for eviction has been passed, and in any case, the plaintiff was entitled to the benefit under Section 13(6) of the Act of 1950 (first default). The finding of the bonafide necessity, and partial eviction was also challenged on the ground that no reliable evidence was produced about the relations of the two ladies rather the plaintiff wanted to sale out the property, and therefore, the suit is obliquely motivated. Regarding non-user it was contended that the premises were being regularly used by the defendant's wife and mother and, rent was regularly being paid notwithstanding this the decree has been passed. Learned lower Appellate Court found that the defendant has rightly been found to be defaulter but then he is entitled to the benefit of his being first defaulter. Then regarding the ground of non-user, the learned lower Appellate Court discussed the evidence of the parties, and found that the evidence led on the side of the appellant about his wife and mother living in Jodhpur is not reliable. Then regarding the ground of non-user, the learned lower Appellate Court discussed the evidence of the parties, and found that the evidence led on the side of the appellant about his wife and mother living in Jodhpur is not reliable. Then the learned lower Appellate Court proceeded to consider the question about existence of reasonable ground for non-user of the premises viz. that the defendant was very much hopeful about his transfer being cancelled he was regularly paying the rent and his family members were living, and therefore, it cannot be said that the house was being not used without any reasonable cause. The learned lower Appellate Court found that the finding recorded by the learned lower Appellate Court about non-user of the premises cannot be said to be erroneous in view of the fact that when admittedly all the four children of the defendant were receiving education at Mount Abu it is against norms of human conduct that his wife and mother would live in the suit house at Jodhpur. Then considering the objection of absence of pleading in the plaint about non-user without any reasonable cause, it was found that since the defendant came with a positive story of continuous user of the premises which he has failed to prove the objection cannot be sustained. Regarding bonafide necessity the learned lower Appellate Court found that the suit can be filed on the ground of reasonable and bonafide necessity if the relations between the wives of the two plaintiffs are strained, and then after referred to few judgments, the finding of the learned trial court was upheld. 9. In view of the fact that the defendant has been given benefit of first defaulter by the first Appellate Court, the question of default was not seriously pressed before me. 10. Then I may first take up the ground of eviction viz. non-user as contemplated under Section 13(1)(j) of the Act of 1950. The main submission of the learned counsel for the appellant is that from a reading of the plaint, it is clear that there is not even an averment in the plaint that the non-user was without any reasonable cause. non-user as contemplated under Section 13(1)(j) of the Act of 1950. The main submission of the learned counsel for the appellant is that from a reading of the plaint, it is clear that there is not even an averment in the plaint that the non-user was without any reasonable cause. Likewise even in the evidence it has not been established that the non-user was without any reasonable cause, so much so that even the evidence about non-user of the premises is also hear say, inasmuch as the plaintiff is said to have been informed about the house being locked whereupon he has said to have gone to Mount Abu and requested for eviction etc., notwithstanding this the learned courts below have decided this ground against the defendant, rather by expecting the defendant to prove the existence of reasonable cause for non-user and thus a wholly converse process has been adopted. According to the learned counsel until and unless plaintiff pleads and proves the ground of eviction as required by the Act even if the defendant were to remain ex parte, the plaintiff could not get suit decreed, and the appellant cannot be placed in a position worse than that, and therefore, the impugned decree is liable to be set aside. Learned counsel for the appellant in support of his submission placed reliance on the judgment of Hon'ble the Supreme Court in Roshan Lal v. Madan Lal reported in 1975(2) SCC 785 , Phool Chand v. Dr. Gulab Chand reported in 1999 DNJ (Raj.) 771. 11. On the other hand, learned counsel for the respondent supported the finding and submitted that in the facts pleaded in the plaint, the plea of want of reasonable cause was very much implicit rather the existence of reasonable cause is a fact within special knowledge of the defendant, and therefore, the learned courts below rightly expected it of the defendant to prove it. Learned counsel placed reliance on the judgment of Hon'ble of Supreme Court in Vora Rahimbhai Haji Hasanbhai Popat v. Vora Sunderlal Manilal reported in 1985(4) SCC 551 , Suryakant Kanji Bheda v. Hemlataben Indukumar Rajania, Sant Lal v. Harbans Singh reported in 1982 RLW 274 and Sewa Ram v. Manoj Kumar reported in 1994(1) WLC (Raj.) 45. 12. Learned counsel placed reliance on the judgment of Hon'ble of Supreme Court in Vora Rahimbhai Haji Hasanbhai Popat v. Vora Sunderlal Manilal reported in 1985(4) SCC 551 , Suryakant Kanji Bheda v. Hemlataben Indukumar Rajania, Sant Lal v. Harbans Singh reported in 1982 RLW 274 and Sewa Ram v. Manoj Kumar reported in 1994(1) WLC (Raj.) 45. 12. I have considered the submissions, and have gone through the pleadings which have already been referred to above, and have also gone through the various judgments cited on behalf of the learned counsel for the parties on either side. 13. In Roshan Lal v. Madan Lal (supra) Hon'ble the Supreme Court was dealing with a case where a compromise decree was put in execution, and the Judgment Debtor challenged the validity of the decree, as it having not been passed on any of the grounds available under the Rent Control Law, and in that context it was held as under:- "In order to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act." 14. Phool Chand v. Dr. Gulab Chand (supra) was a case where the suit for eviction was based on the ground of default, and the question was as to whether in absence of specific pleading, that the defendant has neither paid rent, nor tendered the rent for a period of six months, whether the ground of default can be spelt out. Suffice it to say that I need not say anything about the requirement of pleading in this regard, for the simple reason, that the matter is already pending in reference before Hon'ble the Division Bench of this Court, in D.B.C. Second Appeal No. 317/99 (Bulaki Das v. Laxmi Narayan), in view of the fact, that in Shyam Sunder v. Moda Ram, reported in 1981 RLW 178 , the view taken was, that specific pleading, that the defendant has neither paid nor tendered the rent for a period of six months, is not necessary. 15. On the other hand there is catena of judgments on the other side. 15. On the other hand there is catena of judgments on the other side. Specific case on the facts is that of Mahalal v. Kasturlal reported in 1969 Supreme Court's Notes 407, where Hon'ble the Supreme Court has held as under:- "In his written statement, and in his evidence the tenant had pleaded that he had not ceased to occupy the shop; he had not set up a case that the shop was not occupied for a reasonable cause. The High Court erred in holding that the Rent Controller had not given a specific finding, whether the non-occupation of the shop was due to any reasonable cause. The facts necessary to establish any reasonable cause could only be in the knowledge of the tenant and if he did not lead any evidence to establish these facts it was hardly the statutory duty of the Rent Controller to give a more detailed and specific finding as to reasonable cause for not occupying the shop." 16. Then in Vora Rahimbhai Haji Hasanbhai Popat's case also in para-10 to 13 Hon'ble Supreme Court has held as under:- "10. This leads us to the second part of the submission made by the counsel for the appellant that on a correct interpretation of Section 13(1)(k) of the Act even non-user of the premises for any purpose whatsoever for years together would make him liable for eviction. The contention on behalf of the respondent, however, is that we cannot add words to Section 13(1)(k) and the intention of the legislature is clear from the words used therein, and all that Section 13(1)(k) contemplates is that the premises had not been used for the purpose for which they were let out for a continuous period of six months immediately preceding the date of suit without reasonable cause. It does not say that mere non-user of the premises will make him liable for eviction. 11. The scheme of the Act as it appears from the preamble is to consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. The control had to be brought in because of the scarcity of accommodation in the cities. 11. The scheme of the Act as it appears from the preamble is to consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. The control had to be brought in because of the scarcity of accommodation in the cities. If this was the preamble of the Act it cannot be accepted that a tenant may take a premises on rent and keep it locked for years together without using it in the absence of any reasonable cause. The intendment of the legislature could be carried out only when the premises is used and not kept vacant for years together. Shri Sheth, however, sought to support the finding of the High Court that the construction of a superstructure is also a user of the property and the defendant had raised superstructures on the land in question. This argument must be repelled. It appears from the rent note, Ex. 61, that the defendant had taken the premises from the present plaintiff when the defendant had already built the super-structures when he had taken the land on rent from the predecessor-in-interest of the plaintiff-appellant. Therefore, there was no question of using the land by raising constructions by the defendant after the execution of the rent note, Ex.61. 12. Shri Sheth also referred to 8.12 and 8.13 of the Act and contended that these are the only two sections which give protection to the tenant and unless the conditions in the two sections are satisfied the tenant cannot be evicted. What was let out, by the plaintiff to the defendant-tenant, was the land and not the superstructures and so Shri Sheth argues that the non-user of the superstructures does not amount to non-user of the land. On the own showing of the defendant-respondent he had shifted his business to Baroda and therefore, he is not using the land for any purpose whatsoever. Broadly speaking a premises can be let out either for residential or for business purpose. In the instant case on the own showing of the defendant-respondent it had been taken for the purpose of tobacco business and that business had been stopped for a period of 4 to 5 years before the institution of the suit as the business had expanded and the defendant had shifted to Baroda. In the instant case on the own showing of the defendant-respondent it had been taken for the purpose of tobacco business and that business had been stopped for a period of 4 to 5 years before the institution of the suit as the business had expanded and the defendant had shifted to Baroda. Therefore, it can be safely presumed that the land is not being used for the purpose for which it has been proved to have been let out. 13. The High Court in our opinion has gone wrong in holding that the construction of super-structure on the land in dispute was itself a user. As indicated earlier the super-structures had already been built before the defendant took the land from the plaintiff under rent note, Ex. 61. Therefore, there is no question of making any construction on the land in question by the defendant after the execution of the rent note." 17. In Santlal's case this Court was considering the pleading of the plaint, to the effect that the defendant has closed the suit shop for the last many years, which was let out for carrying on the business, on account of shop remaining closed, its price has reduced which is adversely effecting the ownership rights of the plaintiff, the defendant by getting shop closed for the last six months, has violated the terms of tenancy, and is, therefore, liable to be evicted. Considering these pleadings, on the anvil of the objection, to the effect that closing of the shop will not amount to non-user, within the meaning of Section 13(1)(j), so also the objection, to the effect that, "in the first instance the burden was on the plaintiff to show that the defendant has not used the shop without reasonable cause for the purpose, for which it was let out for a continuous period of six months immediately preceding the date of suit, which he has failed to discharge, and in the alternative if the defendant is to prove that he had not used the shop without reasonable cause, the non-framing of issue in this regard has materially prejudiced the defendant". After reproducing of language of Section 13(1)(j), and considering the pleading of para 3 of the plaint, as noticed above, and after recapitulating the evidence, it was held as under:- "I have no hesitation in saying that the grounds envisaged in Section 13(1)(j) of the Act can easily be spelt out and construed in the light of the well recognised canons, it cannot be said that the defects in it are of such a grave nature so as to take out from the ambit of the requirements of Section 13(1)(j) of the Act." 18. Then in para-19 the precise controversy was noticed, by observing, that it is correct that the plaintiff has not stated in the plaint that the defendant has not used the shop without reasonable cause, and that the plaintiff has not led any evidence regarding 'without reasonable cause', then the question posed was "whether the plaintiff is required to plead and prove the fact "without reasonable cause". Then deciding this precise question, this Court referred to the pleadings of the defendant also, where he had given out that he took the shop on rent for Godown and for carrying wholesale business, and that from the very beginning, he has been carrying the business of whole sale, and that he has been using it as a Godown. It was held as under:- "I am definitely of the opinion that it was neither necessary for the plaintiff to have pleaded about 'without reasonable cause' nor was it necessary for him to lead evidence in this regard. The defendant did not come even with an alternative plea to the effect that the shop remained closed or was not used without reasonable cause. In these circumstances, there was no occasion for any of the parties to lead evidence in regard to the point of 'without reasonable cause'". 19. Then the controversy again came up before this Court in Sewa Ram's case, where the pleadings were, that the defendant is not using the suit premises for a period of six months immediately before filing of the suit. The contention raised by the defendant was that, no foundation for seeking eviction on the ground set forth under section 13(i)(j) was laid in the pleadings of the plaintiff, inasmuch as 'absence of reasonable cause' for not using the suit premises by the defendant was not pleaded. The contention raised by the defendant was that, no foundation for seeking eviction on the ground set forth under section 13(i)(j) was laid in the pleadings of the plaintiff, inasmuch as 'absence of reasonable cause' for not using the suit premises by the defendant was not pleaded. This Court after referring to Sant Lal's case, so also quoting the relevant extract from the judgment of Hon'ble the Supreme Court in Mahalal's case it was held in para-14 and 5 as under:- "14. In that view of the matter I am of the opinion that the essential requirement of pleading by the landlord seeking eviction on the ground of section 13(1)(j) are that defendant is not using the suit premises for continuous period of six months immediately preceding the date of the suit or to say non-user by the tenant for the prescribed period is the soul of the plaintiff's case. It is the part of the defence permitted by statute that notwithstanding such non-user if he had a reasonable cause for the same, the tenant cannot be evicted. 15. Apart from the aforesaid I am of the opinion that the pleadings of the plaintiff, in which he has alleged the suit shop has been not used for more than 6 months, the defendant has started his business in another shop in Ratangarh and he has closed his business in the suit premises, the want of reasonable cause for non-user is implicit in these averments. In reply to para 4 of the plaint the defendant has denied the very fact that he is not using the suit shop for any period. Contrarily he has asserted that he is doing the business of English Medicines in the shop as before. The plea of the previous defendant about use of suit finds place in Paras No. 2, 4 and 10 of written statement. At any stage the defendant has not given even whispering that in case the suit shop is found to have not been used, he had any reasonable cause for not using the suit shop. In that view of the matter it must be accepted in the face of pleadings of the parties that if it is found that the suit shop was not being used by defendant for a period of 6 months or more before filing the suit, there was no reasonable cause for its non-user." 20. In that view of the matter it must be accepted in the face of pleadings of the parties that if it is found that the suit shop was not being used by defendant for a period of 6 months or more before filing the suit, there was no reasonable cause for its non-user." 20. On the face of these judgments, in my view, it cannot be said that the contention of the learned counsel for the appellant, on the anvil of want of any pleading, or want of any positive evidence, on the side of the plaintiff about 'without reasonable cause' has any force. 21. I respectfully prefer to follow the decisions in Santlal's case, Mahalal's case, and Seva Ram's case. 22. Once I come to this conclusion, then the remaining aspect of the matter, is pure question of fact, based on appreciation of evidence of the parties. 23. At this place I may not miss to notice, one important contention of the learned counsel for the appellant, viz. that the findings of the learned courts below are outcome of misreading, and non-consideration of the material on record, inasmuch as, it is admitted position, on the side of the plaintiff, that no receipt of the rent was given, and the factum of receipt of rent is recorded on the rent note, which rent note is produced on record as Ex. 6, and the plaintiff, P.W. 2, has clearly established, that every month he used to go to receive the rent, but rent was not paid to him in time, that at every place A to B on Ex. 6, are signatures of the defendant, it is contended, that a look at Ex. 6 shows, that thereby rent has been received even during the period, during which it is alleged, that the premises were not being used. Suffice it to say that the suit has been filed, as noticed above, on 10.1.1987, and therefore, the precise period of non-user, to be seen is, the period of six months immediately preceding filing of the suit, while a look at Ex. 6 also shows, that the last entry of receipt of rent is dated 11.5.1986, and even if the contention is accepted, it is clear from Ex. A-6, that rent had not been paid after 11.5.1986, and even calculated from this date, the period upto 10.1.1987 exceeds a continuous period of six months. 6 also shows, that the last entry of receipt of rent is dated 11.5.1986, and even if the contention is accepted, it is clear from Ex. A-6, that rent had not been paid after 11.5.1986, and even calculated from this date, the period upto 10.1.1987 exceeds a continuous period of six months. In that view of the matter, also it cannot be said, that this argument at all helps the appellant, to vitiate the finding of the learned courts below. Thus, the first substantial question of law is accordingly answered against the appellant.Coming to the second question, regarding reasonable and bonafide necessity, a look at the judgment of the learned trial court shows, that though the learned trial court has found that the plaintiff has reasonable and bonafide necessity of the premises, but then the necessity found is altogether different then the one pleaded in the plaint, while so far learned lower Appellate Court is concerned, the learned lower Appellate Court has only propounded the principle, that such a circumstance can give rise to the requirement, which would be reasonable and bonafide, but then, it had not been found, after appreciating evidence of the parties, that the plaintiff has been able to prove that the relations between the wives of plaintiff No. 1 and 2 got strained on 12.10.1986, which gave rise to the reasonable and bonafide necessity of the plaintiff.In that view of the matter, the finding of the learned courts below on issue No. 5 cannot be sustained.The net result is, that in view of the decision of substantial question No. 1, having been arrived at against the appellant, the second appeal is required to be dismissed, and the same is, therefore, dismissed.Appeal dismissed. *******