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2004 DIGILAW 574 (RAJ)

Ram Kalyan v. Smt. Ladbai

2004-04-13

A.C.GOYAL

body2004
JUDGMENT 1. - This is the second appeal preferred by the defendant tenant against the judgment and decree dated 3.2.1994, whereby learned Additional District Judge No. 2 Baran, affirmed the judgment and decree of eviction passed on 3.9.1987 by the then learned Munsif, Baran. 2. The relevant facts in brief are that the plaintiff respondents Smt. Ladbai and Smt. Dwarka Bai-both sisters filed a suit on 4.12.1975, for arrears of rent and eviction with the averments that the suit house at Baran was let cut to the defendant on 25.11.1967 on monthly rent of Rs. 6/-. The eviction was sought on grounds of default in payment of rent for a period of 17 months from 25.6.1974 to 25.11.1975, reasonable and bonafide requirement, denial of the title of the landlords and material alterations in the suit house. 3. The defendant filed written statement that he is the tenant since 1962. He has denied all the grounds of eviction with a plea that first suit No. 279/70, filed by the landlords for eviction on 1.6.1974, based on reasonable and bonafide requirement was dismissed. Hence the second suit is not maintainable. 4. As many as ten issues were framed. Evidence of the parties was recorded. 5. Learned Munsif vide judgment dated 3.9.1987 decided Issue No. 1 of default in payment of rent and Issue No. 7 of Notices on the ground that they were not pressed. That Issue Nos. 2, 3 and 9, relating to material alterations and substantial damage to the suit property were decided against the plaintiffs and Issue No. 4, Sections 6 and 8 relating to denial of title, bonafide requirement, comparative hardship and estoppel were decided in favour of the plaintiffs and thus passed decree of eviction. 6. Regular First Appeal preferred by the defendant was dismissed as mentioned here-in-above. 7. During the pendency of the second appeal, this Court ordered the first appellate court to decide the issue of partial eviction and the learned first appellate court after recording the evidence of the parties decided this issue in favour of the plaintiffs vide order dated 27.8.1997. 8. This Court framed following substantial questions of law on 18.4.2000. (i) Whether mere depositing of rent under Section 19(1) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, tantamount either renouncing character to tenant or denial of character ? 8. This Court framed following substantial questions of law on 18.4.2000. (i) Whether mere depositing of rent under Section 19(1) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, tantamount either renouncing character to tenant or denial of character ? (ii) Whether the present suit filed for eviction on the ground of personal reasonable bonafide is barred by principle of res judicata when the first suit on the same need had already been dismissed on merit ? (iii) Whether the evidence adduce beyond pleadings are admissible within the meaning of Evidence Act ? (iv) Whether in the facts and circumstances of the present case, a decree for partial eviction is possible, is so what would be its effect ? First QuestionSection 19-A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (for short 'the Act') provides that where the rent remitted by postal money order is refused or where the landlord does not specify a bank and account number or where there is bonafide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the court. 9. Ex. 8 is the application filed on 29.3.1971. This application on behalf of the appellant tenant was submitted in the Court in First Civil Suit No. 279/70, with the averments that rent upto June, 1970 has already been paid and now in July, 1970, he has got a notice from Shri Krishna Suraj Mal, directing him not to pay the rent to Smt. Lad Bai and Smt. Dwarka Bai-both respondents in the appeal before this court and thus the tenant is ready to pay the rent as directed by the Court. Ex. 9 is copy the order passed by the Court on this application. This order was passed on 17.5.1971. According to this order no reply of this application was filed on behalf of the plaintiff-landlords and they did not raise any objection in depositing the rent in the court and counsel appearing for the landlords was ready to receive the rent. 10. In view of these admitted facts, learned counsel for the appellant rightly submitted that mere depositing of rent under Section 19-A of the Act does not amount to either renouncing character as a tenant or denial of the title to the landlords. 10. In view of these admitted facts, learned counsel for the appellant rightly submitted that mere depositing of rent under Section 19-A of the Act does not amount to either renouncing character as a tenant or denial of the title to the landlords. It is also significant to say here that assuming that the tenant denied the title of the landlord vide this application, this ground of eviction could have been taken in the earlier suit. Learned counsel for the respondents placing reliance upon Heera Nand v. Abdul Sattar (WLN (UC) 1975, 430 , contended that even partial denial of title is sufficient. But in the instant case no case of partial denial of title is made out. Thus this first question of law is decided in favour of the appellant.Second Question 11. Section 11 C.P.C. provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. 12. It is significant to say here that the copies of the plaint, written statement, issues and judgment delivered in the first suit were not placed on record by the defendant tenant and the burden was to prove on him. Therefore, it is difficult to say that the ground of reasonable and bonafide requirement was directly and substantially the same in the earlier suit as well as in the second suit. 13. Both the courts below observed that grounds of reasonable and bonafide requirements go on changing from time to time and reasons of reasonable and bonafide requirement as pleaded in the second suit are not the same as pleaded in the earlier suit. Hence Section 11 C.P.C. is not applicable. 14. Having considered the above facts, I find no reason to interfere with the concurrent of the courts below. Therefore, this second question is decided accordingly against the appellant.Third Question 15. It was submitted by learned counsel for the appellant that there is variance between the pleadings and proof in this case. Hence Section 11 C.P.C. is not applicable. 14. Having considered the above facts, I find no reason to interfere with the concurrent of the courts below. Therefore, this second question is decided accordingly against the appellant.Third Question 15. It was submitted by learned counsel for the appellant that there is variance between the pleadings and proof in this case. Learned counsel for the appellant referred the pleadings and evidence of the plaintiffs. It was decided that the suit house is 'kacha' one. The plaintiffs want to construct a 'Pacca' house and want to reside in the suit house with family. P.W.1 Madan Mohan stated before the trial Court that they want to construct a 'pacca house' as his children have now grown up and they want to study at Baran and they have no other house at Baran. According to learned counsel for the appellant, this fact was not pleaded that the plaintiffs' on being grown up, would study at Baran. According to learned counsel for the respondents this does not amount to variance between pleading and proof. I have considered the rival submissions and of the view that this is not a case of variance between the pleading and proof. It amounts only non-giving of details in the plaint. Mere omission of these facts that the landlords children have grown up and would study at Baran, does not amount to any variance between the pleading and proof. Hence, this question is decided against the appellant tenant.Fourth Question 16. The first appellate court having considered the entire evidence of the parties come to this conclusion that suit house consists of two rooms and one 'pole'. It was also found that the plaintiffs getting the present accommodation demolished would construct a 'pacca house' and both the parties vide evidence stated that partial eviction would not serve purpose of either party. 17. Having considered the findings of the first appellate court on this point, I find the partial eviction would not serve purpose of either party. Hence this question is also decided accordingly. 18. Consequently this second appeal is here dismissed with costs.Appeal dismissed. *******