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2003 DIGILAW 1592 (RAJ)

Ram Kishan v. M/s Jet Mal Tulsi Ram

2003-11-25

PRAKASH TATIA

body2003
JUDGMENT 1. Heard learned counsel for the parties. 2. The present appeal has been filed by the defendant tenant against the judgment and decree dated 18th Feb., 1987 by which the first appellate court allowed the appeal of the landlord plaintiff respondent and passed the decree for eviction against the appellant defendant tenant on the ground of default alleged to have been committed by the appellant tenant during the pendency of the appeal in payment of the rent. 3. Brief facts of the case are that the plaintiff alleged that he defendant committed default in the payment of rent, which is for more than six months prior to the date of filing of the suit. It was further averred that the suit premises required for the personal bona fide need of one of the partners of the plaintiff's firm. The trial court held that the plaintiff's suit is not maintainable as it is hit by the provisions of Section 69(2) of the Indian Partnership Act. The trial court held that the plaintiff is entitled for the benefit under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act as the defendant has deposited the rent as determined by the trial court and also deposited the rent month by month during the pendency of the suit. Therefore, no decree for eviction can be granted to the plaintiff on the basis of alleged default in the payment of rent. The trial court found that the plaintiff failed to prove bona fide need of the premises in dispute. 4. The plaintiff preferred the appeal against the judgment and decree of the trial court dated 17th Feb., 1983. In the appeal, the first appellate court held that the suit of the plaintiff was not hit by the Section 69(2) of the Indian Partnership Act on the ground that the suit has not been filed on the basis of any right, which accrued to the plaintiff's firm because of the act of partnership or it was business transaction of the plaintiff's firm, but it is a case of private contract by firm of letting out the premises. The first appellate court upheld the finding recorded by the trial court on the issue of personal bona fide need of the plaintiff and held that the plaintiff is not entitled to get the decree for eviction against the tenant on the ground of personal bona fide need. However, the first appellant court considered the submission of the plaintiff-appellant about the non-payment of the rent by the tenant during the pendency of the appeal. The first appellate court observed that the defendant respondent before the first appellate court and appellant before this Court, was given ample opportunity to produce the rent receipt to show that the defendant tenant has deposited the rent during the pendency of the appeal, but he failed in showing the receipt of the rent even after taking time. Therefore, the first appellate court held that in view of the judgment of the Hon'ble Supreme Court reported in (1) AIR 1985 SC 111 , the appeal in the present case also be treated as continuation of the suit and, therefore, the defendant was under obligation to deposit the rent as provided under Section 13(4) of the Act of 1950. The first appellate court held that since, the defendant failed to deposit the rent by 15 days of succeeding month of the tenancy, therefore, he decreed the suit of the plaintiff by allowing the appeal of the plaintiff against the judgment and decree of the trial court. 5. The tenant appellant, therefore, preferred this second appeal. The appeal was admitted by this Court and following substantial questions of law were framed by this Court : i) Whether the learned first appellate court erred in holding that the suit was not hit by the provisions of Section 69(1), Partnership Act and was maintainable ? ii) Whether the first appellate court erred in holding that the defendant has committed defaults in payment of rent of subsequent months, striking off his defence and decreeing the suit on the ground of default in payment of rent ? 6. Learned counsel for the appellant submit that the appellant, in fact, deposited the rent during the pendency of the appeal and the receipts are also lying in the file of the trial court. 6. Learned counsel for the appellant submit that the appellant, in fact, deposited the rent during the pendency of the appeal and the receipts are also lying in the file of the trial court. It is true that counsel arguing for the tenant appellant did not point out this fact before the first appellate court, but this court can certainly look into the record of the trial court and any finding recorded by the courts below, which goes just contrary to the record, is liable to be reversed as finding amounts to be recorded without considering the record itself. It is also submitted that the rent was deposited by the appellant tenant in the trial court after getting permission of the court, which is also apparent from the rent receipt lying in the file of the trial court and record has been summoned by this court to hear this appeal, which can be perused by this court. In view of the above, there is no default and the decree passed by the first appellate court against the landlord deserves to be set aside. It is also submitted that because of the negligence of the counsel in this case by not pointing out and showing the receipt from the record itself, the parties cannot be punished and a liberal approach required to be taken in this matter. Learned counsel for the appellant also submits that the landlord respondent has withdrawn the deposit amount. In addition to the above, learned counsel for the appellant challenged the finding of the first appellate court on issue No.1 wherein the first appellate court held that even there is non-compliance of the Section 69(2) of the Indian Partnership Act, still the suit of the plaintiff is maintainable. 7. Learned counsel for the respondent vehemently opposed the arguments advanced by learned counsel for the appellant. According to learned counsel for the respondent, only point decided by the first appellate court was whether the tenant defendant appellant deposited the rent during the pendency of the appeal or not. No fault can be found out in judgment of the fist appellate court because of the reason that the tenant himself did not produce the rent receipts to show that he has deposited the rent. No fault can be found out in judgment of the fist appellate court because of the reason that the tenant himself did not produce the rent receipts to show that he has deposited the rent. Once, the tenant himself after taking opportunity for producing the rent receipt, did not produce the rent receipt and now, in this second appeal, the appellant cannot say that any prejudice has been caused. Learned counsel for the respondent further submitted that even before this court, the appellant tried to establish his case by saying that he has deposited the rent for the first one on 12th Oct., 1983 whereas the trial court decided the suit on 17th Feb., 1982. From this fact alone, it is clearly proved that the defendant tenant committed default of not one month but seven months and 25 days, therefore, the appeal of the appellant deserves to be dismissed. 8. 1 considered the rival submission of learned counsel for the parties and perused the record of the case. It will be necessary to reiterate the brief facts of the case again. The suit of the plaintiff was dismissed by the trial court on 17th Feb., 1983. The trial court recorded the finding that the defendant deposited the rent as determined by the court and further, he deposited the rent. Month by month as required under the provisions of the Rajasthan Premises Control of Rent & Eviction) Act, 1950. 9. In view of the above finding, it is clear that there is no dispute with respect to the fact that the defendant deposited the rent in the trial court as least upto 17th Feb., 1983. This fact find support from the fact that it is not the case of even plaintiff today that the defence of the tenant should have been strike off by the trial court because of non-payment of the rent of any month in time. This Court finds that in addition to the receipt dated 12th Oct., 1983, there is one more receipt available on the record of the trial court with a letter of the presiding officer of the trial court taking note of the fact that in this case, the receipt dated 13th Jan., 1983 by which six months rent of the premises in dispute was deposited, was received by the court after the decision of the trial court. From this receipt, it is clear that the defendant deposited the rent of six months on 13th Jan., 1983. Even when this receipt dated 13th Jan., 1983 was not before the trial court, the trial court in its judgment and decree dated 17th Feb., 1983 held that the tenant deposited the complete rent; determined rent, as well as rent month by month during the pendency of the suit. Therefore, this receipt demonstrates the deposit of six months' rent, which is necessarily for six months starting from the month of March 1983 only. In view of the above fact, it is clear that the rent of the premises in dispute stands deposited upto the month of Aug., 1983. The receipt dated 12th Oct., 1983 by which rent was deposited from September 1983 onwards upto six months further. Therefore, so far as factual aspect is concerned, the defendant did deposit the rent of the premises in dispute even during the pendency of the appeal and the first' appellate court's finding that the defendant did not deposit the rent during the appeal is contrary to the trustworthy documentary evidence, i.e., rent receipts for the rent, which was deposited by the tenant in the court after obtaining permission from the trial court. The finding of fact recorded by the first appellate court, therefore, vitiates because of non-consideration of not only documentary evidence, but because of not looking into record of the court itself. 10. It will be further worthwhile to mention here that the present appellant was defendant before the trial court and was respondent before the first appellant court. The summon of the appeal has been served upon the respondent only in the month of December 1984, therefore, it can be presumed that the appellant tenant might have no knowledge of filing of the appeal by the landlord against the judgment and decree passed by the trial court on 17th Feb., 1983 till the summon of the appeal was served upon the present appellant tenant. Still, the defendant tenant went on depositing the rent in the trial court, therefore, it is clear that the defendant bonafidely acted in the matter of depositing the rent. Still, the defendant tenant went on depositing the rent in the trial court, therefore, it is clear that the defendant bonafidely acted in the matter of depositing the rent. Again it will be relevant to mention here that the Hon'ble Supreme Court in a recent case delivered in the case of (1) Shivdutt Jadia v. Ganga Devi reported in (2002) (?) SCC 189 , held that the tenant is required to deposit the rent even during the pendency of the appeal against the decree passed in the suit for eviction and the Hon'ble Supreme Court overruled the view taken by this Court wherein this Court held that the tenant is not required to deposit the rent in the appeal. The Hon'ble Supreme Court further held that any payment deposited by the tenant during the period of appeal in the appellate court or in the trial court, is required to be taken as valid payment or deposit of the rent of the suit premises. In view of the said judgment, which has been followed by this Court (by me) in (2) Kesarimal v. Bhawani Singh SBCSA No.71/1999 decided on 9th Oct., 2003 [reported in 2004(1) RLR 685] , the payment of rent by the tenant during the pendency of the appeal is required to be treated as valid payment of the rent. 11. Now, the question remains is that whether this Court should interfere in the judgment and decree of the first appellate court in view of the fact that the appellant himself was given full opportunity to produce the rent receipts to show that he has deposited the rent during the period of the appeal and he failed to do so. It is true that the appellant tenant was negligent in conducting the appeal, but on this count alone and order which is factually and legally wrong and goes contrary to the record itself cannot be allowed to stand. It is true that the appellant tenant was negligent in conducting the appeal, but on this count alone and order which is factually and legally wrong and goes contrary to the record itself cannot be allowed to stand. It is one thing to say that the litigant before the court did not produce any evidence, but it cannot be equated with the fact that the party in the first appellate court could not point out the document already lying in the record and the document is part of the record and correct decision of the case hinges upon that document and with the documents, which were issued by the order of the court itself in the proceedings of the case itself. Apart from it, it will be worthwhile to mention here that it was the duty of the respondent plaintiff, who was appellant before the first appellate court to show that the defendant tenant committed default in payment of the rent. It was his duty also to look into the record and thereafter, invites the court's attention for passing any order. The landlord, who was appellant before the first appellate court himself did not look into the record and raised the point. The first appellate court also itself could have suo motu looked into the record to find out whether any rent was deposited or receipt is lying in the record, though it is not the work of the court itself as it cannot be done without the assistance of the parties and court is not supposed to look into each and every paper lying in the file. In the totality of the fact is that it was a case of negligence in conducting the appeal rather than any fault on the part of the appellant himself. 12. In view of the above reasons, the objection of learned counsel for the respondent that the appellant himself is responsible for the decree against the appellant himself, cannot be accepted. The duty of the court is do the justice and not to deny the justice n such a technical ground and because of the fault of the person, who conducted the appeal on behalf of the tenant as in this case. The duty of the court is do the justice and not to deny the justice n such a technical ground and because of the fault of the person, who conducted the appeal on behalf of the tenant as in this case. In view of the above reason, the finding recorded by the first appellate court that the tenant has committed any default in payment of the rent after the decision of the trial court is set aside. Consequentially, the order of striking out defence of the tenant i.e. present appellant is set aside. In view of the above finding, the substantial question of law No.1 will become only academic and need not to be examined by this Court. The appeal of the appellant is allowed. The judgment and decree passed by the first appellate court dated 18th Feb., 1983 (sic 1987' ?) is set aside and the suit of the plaintiff is dismissed. No order as to costs.Appeal allowed. *******