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2004 DIGILAW 1677 (RAJ)

Vishnu Prakash v. Mohan Lal

2004-11-23

PRAKASH TATIA

body2004
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The appellant is aggrieved against the Judgment and decree of the two Courts below. The trial Court decreed the suit of the plaintiffs respondent against the defendant tenant on the ground of change of user, which is the ground for eviction under the provisions of Clause (d) of Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The appellate Court dismissed the appeal of the appellant vide Judgment and decree dated 03.09.2004. 3. Brief facts of the case are that plaintiffs filed the suit for eviction against the defendant alleging that suit property was let out to the defendant in the year 1973 and a rent deed was also executed by the defendant in favour of the plaintiffs on 19.01.1973. Rent deed provides the premises has been let out for residential purpose. According to plaintiffs, the defendant committed default in payment of rent and also started business of the electricity shop in the said room without the permission of the plaintiffs, therefore, defendant converted the residential premises into commercial premises, therefore, the decree may be granted against the tenant appellant for eviction. 4. The defendant appellant submitted written statement and denied the relationship of landlord and tenant between the plaintiff and defendant. The defendant came with a positive case that suit shop was taken on rent by his mother Smt. Sayer Devi. The defendant also denied the execution of the rent deed dated 19.03.1973. He submitted that the licence was obtained for running the shop in the name of his mother and the shop was never taken on rent for residential purpose. He also denied that he paid any rent to the landlords. The trial Court framed the issues. Before the trial Court, the plaintiff gave his own statement whereas defendant gave his statement and produced DW. 2 Anand Singh and DW. 3 Smt. Sayar Devi who are the brother and mother of the defendant respectively. The plaintiff produced the alleged rent deed also. 5. The trial Court considered the statement of the witnesses namely plaintiff , defendant, DW. 2 and DW. 3 and the rent deed. The trial Court while deciding Issue No. 1 observed that plaintiff stated on oath that the suit shop was let out to the defendant and the defendant lastly paid rent @ 85 per month. 5. The trial Court considered the statement of the witnesses namely plaintiff , defendant, DW. 2 and DW. 3 and the rent deed. The trial Court while deciding Issue No. 1 observed that plaintiff stated on oath that the suit shop was let out to the defendant and the defendant lastly paid rent @ 85 per month. The rent was lastly increased on 28.02.1989. In cross-examination, he denied the suggestion of the defendant that Sayar Devi is the tenant. The trial Court while considering the statement of the appellant tenant DW. 1 Vijay Prakash observed that plaintiff in his cross-examination stated that he has no knowledge whether rent receipt is being issued in his name or not. The defendant admitted that he deposited the rent in Court after determination of the arrears of rent by the Court. However, according to defendant, the rent was paid to him by his mother. The appellant tenant also admitted that he has not produced any receipt in the name of his mother of the rent for the shop in question. The witness DW. 1 Anand Singh admitted that the rent receipts produced were in the name of his brother Vijay Prakash. The important witness DW. 3 Sayar Devi who according to defendant is the tenant in the shop, in her statement, stated that rent of the shop was deposited by either his brother Madan Singh or by Narpat Singh or by Surendra Singh. She also stated that she offered the rent of the shop to the landlords and when it was not accepted, she deposited the rent in the Court. She further stated that there is no rent due in her. In cross-examination, she stated that since she was illiterate, therefore, she cannot say that whether the rent receipts were issued in the name of the defendant or not. She denied the suggestion that the rent receipts are in the name of defendant appellant. 6. It will be relevant to mention here that in cross-examination, at one place defendant himself stated that he took the room on rent but immediately he tried to correct himself by saying that room was taken on rent by his mother. She denied the suggestion that the rent receipts are in the name of defendant appellant. 6. It will be relevant to mention here that in cross-examination, at one place defendant himself stated that he took the room on rent but immediately he tried to correct himself by saying that room was taken on rent by his mother. The trial Court found that the plaintiff proved his case by documentary as well as oral evidence and the statement of the defendant himself as well as defendant’s evidence is not sufficient rebut the evidence of the plaintiff and the statement of the defendant witnesses are not worth reliance. 7. The trial Court while deciding Issue No. 3 again considered the evidence of the witnesses and the rent deed and held that the defendant is the tenant in the shop that too of the plaintiff . 8. Being aggrieved against the Judgment and decree of the trial Court dated 28.07.2000 appellant preferred appeal. In the appeal, it was argued that appellant defendant is not tenant and it was also argued that the pleadings which are given out by the plaintiff in the plaint are not sufficient pleading and they are not fulfilling the requirement of pleading as required for obtaining decree under Sub-clause (d) of Sub-section (1) of Section 13 of the Act of 1950. The first appellate Court after holding that defendant has started using the premises for the electricity business whereas in view of the rent deed the room was let out for the residential purpose. The appellate Court further held that in view of the fact that defendant denied the relationship of landlord and tenant, therefore, the decree for eviction on the ground of denial of title can be passed without amendment of the plaint and without framing the issue in view of the decision of this Court delivered in the case of Sheo Narain @ Saon vs. Janki Prasad (dead) through LRs. Radhey Shyam & Ors., reported in AIR 1995 Raj. 87 . The appellate Court dismissed the appeal. 9. Hence, appellant has preferred this second appeal before this Court. 10. Radhey Shyam & Ors., reported in AIR 1995 Raj. 87 . The appellate Court dismissed the appeal. 9. Hence, appellant has preferred this second appeal before this Court. 10. According to learned Counsel for the appellant, the Judgment of the first appellate Court is no Judgment in the eye of law because of the simple reason that the first appellate Court has not framed the issue as required under Order 41 Rule 31, CPC which is clear from the Judgment of the first appellate Court. According to learned Counsel for the appellant, in Para 3 of the appellate Court’s Judgment , the appellate Court recorded the argument of the appellant and appellant argued that appellant is not tenant in the shop premises. For this, no issue was framed by the appellate Court as required under Order 41 Rule 31, CPC. Learned Counsel for the appellant submits that not framing the question as required above itself sufficient ground for admission of appeal. Learned Counsel for the appellant relied upon the Judgment of the Hon’ble Supreme Court delivered in the case of Rattan Dev vs. Pasam Devi, reported in 2002 (7) SCC 441 . 11. Learned Counsel for the appellant further submitted that the pleadings in the plaint are no pleadings constituting any ground for eviction against the tenant. Learned Counsel for the appellant submitted that the suit premises is being used for the same purpose since beginning, therefore, there arises no question of change of user. It is also submitted that the first appellate Court has not recorded any finding that appellant is tenant in the shop in question and further the first appellant Court without there being any plea of the plaintiff , passed the decree on the ground of denial of title. Therefore, the Judgment of the first appellate Court is absolutely perverse. 12. In support of his plea that decree cannot be passed when there is no sufficient pleading and if passed it is nullity, learned Counsel for the appellant relied upon the Judgment of the Hon’ble Supreme Court delivered in the case of Roshan Lal & Anr. vs. Madan Lal & Ors., reported in 1975 (2) SCC 785 . 13. 12. In support of his plea that decree cannot be passed when there is no sufficient pleading and if passed it is nullity, learned Counsel for the appellant relied upon the Judgment of the Hon’ble Supreme Court delivered in the case of Roshan Lal & Anr. vs. Madan Lal & Ors., reported in 1975 (2) SCC 785 . 13. Learned Counsel for the respondent vehemently submitted that the defendant when says that he is not tenant then he is not going to suffer because of the decree passed in favour of the plaintiffs particularly in view of the fact that Smt. Sayar Devi mother of the defendant herself submitted an application in the trial Court for being impleaded as party which was dismissed by the trial Court and revision against the order of dismissal was dismissed by the High Court. Not only this but Smt. Sayar Devi claiming herself to be tenant, to support the defendant appellant, submitted an objection petition in the executing Court under Order 21 Rule 97, CPC which was dismissed by the trial Court and Revision No. 14/2004 against that order was dismissed on 28.04.2004 by this Court (By me). 14. Learned Counsel for the respondent submitted that there was no defence of the defendant appellant in the trial Court that the pleadings are not sufficient. Not only this but even it was not the ground during the argument before the trial Court and was also not ground taken in the memo of appeal in the first appellate Court. It is also submitted that if the objection would have been taken in time then plaintiff could have amended the plaint if there was any defect by giving pleading in brief . It is also submitted that the trial Court framed the issue and in entire trial proceeded for determination of the issue about the claim of the plaintiff regarding change of user of the premises by the defendant and defendant contested the issue knowing it well what is the case of the plaintiff , therefore, according to learned Counsel for the respondent, appellant cannot be permitted to raise this objection. .15. .15. It is also submitted by learned Counsel for the respondent that in view of the admission of none else than defendant himself that he took the premises on rent, there is no reason for reversing the finding recorded by any of the Courts and it does not lie in the mouth of the appellant to say that he is not tenant. Even the admission of defendant’s own brother is sufficient for proving defendant’s tenancy and the Court has already decided that Smt. Sayar Devi is not a tenant in the suit premises in the proceedings under Order 21 Rule 97, CPC. The appellant being son of Smt. Sayar Devi and when Smt. Sayar Devi says that she has deposited the rent through her brother, son etc. even if the appellate Court has not specifically recorded any finding, that cannot be said to be an error of law in the facts of the case. .16. I considered the submissions of learned Counsel for the parties. 17. First of all, it is to be seen that appellant cannot be allowed to raise objection about the lack of pleading. The objection regarding lack of pleading should be raised as a specific defence in the written statement itself . The defendant has no right to say that he can keep any arrow in his pocket for using it at any stage of suit or subsequent thereto. A defect which can be cured and if objection is not raised at earliest opportunity then the suit cannot be dismissed. In a case where issues framed and the issue makes the point clear in the mind of the defendant about the allegations against him and the basic foundation and facts for seeking relief by the plaintiff , then the defendant cannot raise objection about the lack of pleading because issue makes the things and the position clear. 18. Here in this case, not only the objection was not raised in the written statement by the defendant but even no objection was raised when issue was framed. Not only this but thereafter, the defendant voluntarily contested the issue on merits by cross examining the plaintiff and gave his statement and produced the witnesses to prove that he has not committed default on the basis of which the plaintiff can seek decree for eviction under Sub-clause (d) of Sub-section (1) of Section 13 of the Act of 1950. Not only this but thereafter, the defendant voluntarily contested the issue on merits by cross examining the plaintiff and gave his statement and produced the witnesses to prove that he has not committed default on the basis of which the plaintiff can seek decree for eviction under Sub-clause (d) of Sub-section (1) of Section 13 of the Act of 1950. The Judgment of the Hon’ble Supreme Court delivered in the case of Roshan Lal & Anr. vs. Madan Lal & Ors., reported in 1975 (2) SCC 785 provides that a compromise decree in violation of law is nullity. It is also true that sometimes pleadings are not sufficient and do not fulfill the requirement of law, then decree cannot be passed. But that applies only when the objection is raised in time and because of lack of pleading, the party suffered any prejudice. 19. In view of the above, I do not find that the Courts below have committed any illegality in decreeing the suit of the plaintiff in the light of the pleadings which are already on record and which were never under challenge by the defendant. 9.20. It is true that under Order 41 Rule 31, CPC, the first appellate Court is required to formulate the question and decide the issues. The objection raised by the learned Counsel in this case appears to be more technical in nature. The question of formulating an issue and decision on it, if can be gathered from the reading of the Judgment , not mentioning the points specifically and separately in the Judgment , cannot be treated to be an illegality. In Para 3 of the Judgment , the first appellate Court specifically took note of the argument of the appellant. The first appellate Court though took note of two arguments but framed one issue, therefore, in this case, the argument of the appellant was very much in the mind of the first appellate Court is apparent from the Judgment itself and therefore, the objection of the appellant is technical only. .21. As stated, the trial Court considered each and every piece of evidence i.e., oral as well as documentary evidence and thereafter recorded the finding of fact that the defendant is tenant. .21. As stated, the trial Court considered each and every piece of evidence i.e., oral as well as documentary evidence and thereafter recorded the finding of fact that the defendant is tenant. That finding was upheld by the first appellate Court in Para 7 by specifically holding that the trial Court has .not committed any error in deciding the issue No. 1. It appears from the Judgment of the first appellate Court that the first appellate Court also in Para 5 has observed that the rent deed was prepared by forgery cannot be accepted as true. The first appellate Court also specifically observed that in the rent deed Ex. 1, it is clearly mentioned that premises was let out for residence. It appears from the statement of DW. 1, DW. 2 and DW. 3 themselves that the defendant who took specific plea of tenancy of his own mother failed to produce any evidence in support of this plea. Rather the witnesses when confronted with the documentary evidence Ex. 1 rent deed and rent receipts, have shown their ignorance only, however, DW. 2 brother of defendant himself admitted that the rent receipts were issued in the name of appellant defendant tenant, therefore, it cannot be said that the first appellate Court has not complied with the requirement of Order 41 Rule 31, CPC and violated the mandate of law given by the Hon’ble Apex Court in the Judgment s referred above. 10.22. Learned Counsel for the appellant also submitted that it was an admitted case that from the initial time, room is being used for running business and, therefore, the decree for eviction cannot be passed in such fact situation. In reply to it, learned Counsel for the respondent relied upon Judgment of this Court delivered in the case of Prakash Chand vs. B.S., reported in 1997 DNJ 504. The complete answer is available in the said Judgment against the plea raised by the defendant appellant. The additional fact in this case is that the defendant who is saying that he is not taken the premises on rent, and when he failed to prove that his mother took the premises on rent for commercial purpose, I do not find that the Courts below in entirety of facts committed any error. 123. The additional fact in this case is that the defendant who is saying that he is not taken the premises on rent, and when he failed to prove that his mother took the premises on rent for commercial purpose, I do not find that the Courts below in entirety of facts committed any error. 123. Learned Counsel for the appellant prays that reasonable time may be granted to the appellant so that he may vacate and handover the possession of the suit property to the landlord. Learned Counsel for the respondent submits that the defendant appellant submitted that he is not tenant in the suit premises, therefore, there will be a dispute after the expiry of period, if any time is granted to the appellant. 124. In view of the peculiar facts of the case and those facts are that the appellant is in service of the State Electricity Board and in the suit premises, there is shop of the electricity goods, etc. and there is plea taken by the appellant that his mother is tenant in the premises and appellant’s mother also came in witness box in support of appellant and appellant’s mother’s objections about the execution of decree was dismissed by the executing Court and upheld by this Court, therefore, there appears to be possibility of future complications and, therefore, in case appellant and his mother both furnish written undertaking before the trial Court within a period of two months from today that the suit premises will be vacated and possession will be handed over to the landlord by 01.06.2005 or before that and further appellant shall make payment of arrears of mesne profit if any due and shall also pay the cost awarded by the two Courts below to the landlords or shall deposit same in the Court within a period of one month from today and shall further pay the mesne profit at the same rate at which they paying the rent before the trial Court till vacating the premises, the decree shall not be executed. In case of any default, the decree shall become executable. However, it is made clear that Smt. Sayar Devi mother of the appellant is not party in this appeal but it will be the duty of the appellant to furnish undertaking from his mother before the trial Court. In case of any default, the decree shall become executable. However, it is made clear that Smt. Sayar Devi mother of the appellant is not party in this appeal but it will be the duty of the appellant to furnish undertaking from his mother before the trial Court. In case of not furnishing undertaking of Smt. Sayar Devi, it will be treated a default in compliance of order of this Court and the decree shall become executable forthwith. 25. In view of the above, I do not find any merit in this appeal and the same is hereby dismissed.