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2004 DIGILAW 60 (RAJ)

Ashok Gupta v. Ghisi Lal Bararya

2004-01-15

A.C.GOYAL

body2004
Honble GOYAL, J.–This first appeal by the appellant-tenant is filed against the judgment and decree of eviction passed on 5.9.1983 by learned Additional District Judge No. 3, Jaipur City, Jaipur in civil suit No. 211/1981 (2). The plaintiff-respondent filed a civil suit in March, 1981 with the averments that house No. C-127 situated in Tilak Nagar, Jaipur was let-out to the defendant No. 1 for the use of office of the defendant No. 2 in April, 1978 at monthly rent of Rs. 1,000/-. The plaintiff sought eviction on the grounds of default in payment of rent, material alterations in the premises, change in use for the purpose it was let-out and reasonable and bonafide requirement. (3). The defendants in written statement while admitting the tenancy denied all the grounds of eviction with a further plea that monthly rent agreed upon was Rs. 850/-. (4). On the basis of the pleadings of the parties, issues were framed. Evidence of the parties was recorded. Vide judgment dated 5.9.1983 learned trial Judge decided issues No. 1 and No. 2 in favour of the plaintiff that agreed monthly rent was Rs. 1,000/- and that the plaintiffs requirement is reasonable and bonafide and comparative hardship would also be caused to him. Issues No. 3 & 4 relating to material alteration and change in use of the premises were decided against the plaintiff. While deciding issue No. 5, it was held that the plaintiff may raise construction over first floor. Issue No. 6 was decided in the manner that the rent determined under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) has already been deposited. In result the decree of eviction. (5). I have heard learned counsel for the parties. The first point raised by learned counsel for the appellants is that the suit for eviction was not maintainable as per Section 14 (3) of the Act. Section 14(3) of the Act is as under :- 14(3) Restriction on eviction :- Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub- section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant. (6). (6). It is not disputed that suit house was let out to the appellants for the use as office in April, 1978 and the present suit for eviction was filed in March, 1981 i.e. before the expiry of a period of five years from the date the house was let out to the tenants. (7). Learned senior counsel Sh. Agarwal contended that the suit property was not let out for commercial or business purposes, hence Section 14 (3) of the Act would not apply. He referred clause (4) of the Constitution of the Indian Council For International Amity, Jaipur (appellant-defendant No. 2). Consideration of this document was objected by learned counsel for the appellants on the ground that this document has been filed in this appeal along with an application under Order 41 Rule 27 C.P.C. without showing any reason as to why this document was not filed during the trial. Learned senior counsel Sh. Agarwal, in reply submitted that since no such objection under Section 14 (3) of the Act was raised in the written statement and no issue was framed, hence the respondent-plaintiff was not required to produce this document during the trial and secondly the appellants have not denied this document to be the document of Constitution of the appellant No. 2. On the basis of the submissions made by learned senior counsel Sh. Agarwal, this document is taken into consideration. Clause (4) of this document is reproduced as under :- Clause (4) :- Its a non-political, non-commercial and non- sectarian body of all those who are sincerely devoted to the promotion of Cultural Welfare of all Humanity. It shall be the duty of the Executive Committee to preserve its independent and non-partisan character, and to ensure that it exists solely for philanthropic purposes and not for any purpose of profit. (8). A bare perusal of this clause goes to show that the appellant No. 2-registered society exists solely for philanthropic purposes and not for any purpose of profit. (9). Now question arises is as to whether such use of the rented premises comes within the purview of Section 14 (3) of the Act ? Learned counsel for the appellants submitted that use of premises for office purposes amounts to use for business purposes and element of profit is not required in such use. He placed reliance upon a few judgments. Learned counsel for the appellants submitted that use of premises for office purposes amounts to use for business purposes and element of profit is not required in such use. He placed reliance upon a few judgments. In The Model Town Welfare Council vs. Bhupinder Pal Singh (1), while dealing with the E.P. Urban Rent Restriction Act, 1949 it was held that the term ``business means an affair requiring the attention and care, that which occupies ones attention and labour. The activity of maintaining and running a school by engaging teachers as also some other ministerial staff comes within the scope of the term business even if there is no profit motive. In para 27 of this judgment, it was held that the word business in Section 2 (f) and Section 13(3)(a)(ii) of the Act need not necessarily be commercial business carried on with a profit motive. The word includes within its scope a charitable business or a dealing in the interest of the public or a section of the public. In Gunnabatula Papachari vs. The Country Tobacco Merchants Association by its President Vijayawada (2), the Andhra Pradesh High Court while dealing with the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act observed that a registered association formed to render aid and assistance to its members and also to afford facilities to their customers amounts to carrying on business activities. The Honble Supreme Court in S. Mohan Lal vs. R. Kondiah (3), dealing with the same Rent Control Act of Andhra Pradesh held that the expression `business is used in wide sense to include practice of profession of advocate. In Shri Mohan Lal vs. The Haryana State, through Collector (4), Punjab & Haryana High Court dealing with the provisions of East Punjab Urban Rent Restriction Act held that premises occupied by the police department for use as office amounts to use for business purposes. A similar view was taken by the Honble Supreme Court in Badrilal Jagannath vs. Digambar Jain (5). (10). Thus, in view of the decisions cited hereinabove, the words `business purposes in Section 14 (3) of the Act need not necessarily be business activities with a view to earn profit and as such the provisions of Section 14 (3) of the Act would apply to the premises let out for the use as office. (11). (10). Thus, in view of the decisions cited hereinabove, the words `business purposes in Section 14 (3) of the Act need not necessarily be business activities with a view to earn profit and as such the provisions of Section 14 (3) of the Act would apply to the premises let out for the use as office. (11). Next question is as to whether the suit being filed before the expiry of five years was maintainable ? Both the learned counsel relied upon Martin & Harris Limited vs. Vith Additional Distt. Judge & Ors. (6). According to learned senior counsel Sh. Agarwal, filing of the suit was not barred as the case was taken up for hearing lateron, while learned counsel Sh. Tyagi for the appellants contended that Section 14 (3) of the Act puts a complete embargo on filing the suit before the expiry of five years. In Martin & Harriss case (supra), the respondent No. 3 purchased the premises on 30.6.1985 and informed the tenant vide notice dated 20.9.1985 and thereafter filed application for eviction in January, 1986. The case was taken up for hearing by the trial court after prescribed period of three years from the date of purchase of the premises. The point for consideration was whether the landlords application for eviction filed under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act was not maintainable in view of the proviso to the said section as it was filed before the expiry of three years from the date of purchase. The Honble Supreme Court held that this proviso bars `entertainment of the application, therefore, the stage at which the Court has to consider the case on merits will be reached when the Court takes up the application for consideration on merits. But in the instant case, Section 14 (3) of the Act provides that no suit for eviction on the ground set forth in clause (h) of sub-section (1) of Section 13 of the Act shall lie before the expiry of five years. There is significant distinction between the two terms ``entertain and ``lie. Therefore, the contention put forward by learned counsel for the appellants appears to be justified that Section 14 (3) of the Act bars even the institution of the suit for eviction before the expiry of five years. There is significant distinction between the two terms ``entertain and ``lie. Therefore, the contention put forward by learned counsel for the appellants appears to be justified that Section 14 (3) of the Act bars even the institution of the suit for eviction before the expiry of five years. Thus; the provisions of Section 14 (3) of the Act were attracted in the instant case. (12). Now next important point which arises for consideration is whether the appellants waived this right ? As per learned senior counsel Sh. Agarwal, since no such objection was taken in the written statement and during the trial, it amounts to waiver by the appellants and had this objection been raised, the plaintiff- landlord might have withdrawn the suit to wait till expiry of the period of five years. In reply, it was contended by learned counsel for the appellants that such an objection was taken in para 5 of the written statement and secondly this point being a pure question of law can be raised at any stage. I have gone through the contents of the written statement and particularly the contents of para 5. No doubt, it is pleaded in para 5 of the written statement that the plaintiffs prayer of eviction on the basis of his requirement is premature, but this plea is taken with reference to the requirement of the plaintiff as pleaded in para 5 of the plaint and not with reference to legal bar in filing the suit as provided under Section 14 (3) of the Act. The appellant-defendants nowhere in their written statement raised this objection that the suit being filed before the expiry of five years as provided under Section 14 (3) of the Act is barred. Obviously, in absence of such an objection, no issue was framed with regard to bar under Section 14 (3) of the Act. Such an Objection has been raised for the first time in the memo of the appeal. Learned counsel for the appellants relied upon some of the judgments to be considered hereinafter. In Sardar Singh vs. Prakash Singh (7), it was held that such an objection can be allowed to be raised in the second appeal. Such an Objection has been raised for the first time in the memo of the appeal. Learned counsel for the appellants relied upon some of the judgments to be considered hereinafter. In Sardar Singh vs. Prakash Singh (7), it was held that such an objection can be allowed to be raised in the second appeal. According to the facts of this case, such an objection was raised in the written statement but that was not pressed into by the tenant before the First Appellate Court, hence such objection was allowed to be raised in the second appeal, while in the instant case, no such objection was raised in the written statement itself. In Chandrika Misir and Another vs. Bhaiyalal (8), the Honble Supreme Court held that where the Court is inherently lacking in jurisdiction, the plea as to jurisdiction may be raised at any stage, even if it was not raised in trial court. This judgment also is not helpful in the instant case to the appellants as the instant case is not where the Court was inherently lacking in jurisdiction. In Ramesh Chandra vs. III Additional District Judge and Others (9), the question was as to whether the suit instituted prior to completion of exemption period of ten years from the date of construction is governed by the U.P. Act of 1972 and it was held in the facts of that case that the law applicable on the date of institution of the suit would govern the same. Similar view was taken in Nand Kishore Marwah and Others vs. Samundri Devi (10). In Murlidhar Agarwal and Anr. vs. State of Uttar Pradesh & Ors. (11), an agreement between the landlord and the tenant was executed which was contrary to the provisions of Section 3 of the U.P. (Temporary) Control of Rent & Eviction Act, 1947 as Section 3 required that the District Magistrates permission was necessary before filing the application for eviction and in view of such mandatory provision it was held that any agreement between the parties contrary to the mandatory provisions of law cannot bind the District Magistrate and the suit was not maintainable without permission of the District Magistrate. In Ishwar Chand vs. Radha Krishanan (12), a suit was filed to declare a decree of eviction as null and void which was obtained contrary to the provisions of Section 14 (3) of the Act and it was held that such suit is maintainable. In S.A. Ramachandran vs. S. Neelavathy (13), it was held on facts of the case before the Supreme Court that there was no waiver of the notice by the tenant. In Bihari Chowdhary and Another vs. State of Bihar and Others (14), it was held that a suit before the expiry of two months of notice under Section 80 of C.P.C. is not maintainable. Reliance was also placed upon the judgments delivered in Martin & Harriss case (supra), and T.K. Lathika vs. Seth Karsandas Jamnadas (15). Learned senior counsel Sh. Agarwal also placed reliance upon some of the judgments. In State of Rajasthan vs. Girdhari Lal (16), it was held that pleas as to want of notice was not raised by the defendant i.e. State of Rajasthan and no issue was framed on this question and such objection was taken for the first time in appeal, it was held that it was not open to the Rajasthan State to raise the plea at this stage and the objection as to notice must be deemed to have been waived. He also placed reliance upon the judgments of the Supreme Court delivered in Martin & Harris and T.K. Lathikas case (both supra). (13). I have considered the rival submissions in the light of the judgments cited hereinabove. In T.K. Lathikas case (supra) the original landlord gifted rented premises to his daughter and proviso (3) to Section 11 of Kerala Buildings (Lease and Rent Control) Act provided that no landlord whose right to recover the possession arises under an instrument of transfer shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. The transferee-landlord without waiting for the moratorium period of one year filed eviction petition. Having found two differences in the terms of the old and new lease, it was held that moratorium period would apply from the date of fresh lease deed. But it is significant to say here that question of waiver of the right available to a party was not raised, considered and decided in this judgment. Having found two differences in the terms of the old and new lease, it was held that moratorium period would apply from the date of fresh lease deed. But it is significant to say here that question of waiver of the right available to a party was not raised, considered and decided in this judgment. Two points with regard to waiver were raised in Martin & Harriss case (supra). The first point was whether the landlords application for eviction was not maintainable in view of the proviso to Section 21 (1) (a) as it was filed before the expiry of three years from the date of the purchase of the suit premises. This aspect in the instant case has already been discussed and decided. The second point before the Honble Supreme Court was whether such application was not maintainable on the ground that it was filed prior to the expiry of six months from the date on which notice was given by the respondent to the appellant as required by the same proviso. The Honble Supreme Court held in view of the clear language of the proviso to Section 21 (1) of the Act that application for possession had to be filed by the landlord concerned not earlier than the expiry of six months from the date of the issuance of the notice by the landlord. It was also held that this provision was mandatory and thus to that extent it can be said that the application was premature. Further on the question of the waiver it was held that on the facts of the case, the answer must be in the affirmative as in the written statement the appellant amongst other did take up the contention that the application as filed by the respondent-landlord was not maintainable and was premature as six months period had not expired since the service of notice. But curiously enough thereafter, the said contention raised by the appellant in written statement was given a go-by for the reasons best known to the appellant. But curiously enough thereafter, the said contention raised by the appellant in written statement was given a go-by for the reasons best known to the appellant. It is easy to visualise that if at that stage the appellant had pressed for rejection of the application on the ground of Section 21 (1) (a) as not showing completed cause of action due to non-expiry of six months from the date of service of notice invoking Order VII Rule 11 (a) and (d) a cause of action or it appears to be barred by law, the respondent-plaintiff could have withdrawn the suit on that ground under Order XXIII Rule 1 Sub-Rule (3) C.P.C. as the suit based on grounds under Section 21 (1) (a) of the Act would have been shown to have suffered from a formal defect and he would have been entitled to claim liberty to file a fresh suit on the same cause of action after the expiry of six months period from the date of service of notice. That opportunity was lost to the respondent- landlord as the appellant did not pursue this contention any further. On the contrary appellant joined issues on merits and when the decree was passed against the appellant, this objection was taken in the appeal. Under these circumstances, the Honble Supreme Court held that it must be treated that such an objection has been waived by the appellant. It was further held that if the prohibition imposed by the statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. This decision of Honble the Supreme Court is fully applicable to the instant case, as no such objection was raised by the appellants in the written statement and during the trial. Section 14 (3) of the Act obviously was enacted for the benefit and protection of the tenants and it is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection was waived by the appellants. Section 14 (3) of the Act obviously was enacted for the benefit and protection of the tenants and it is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection was waived by the appellants. In view of the observations made by the Honble Supreme Court in para 18 of the judgment, it is easy to visualise that proceedings under Section 13 (1) (h) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the courts. In other judgment delivered in Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh and Others (17), the Honble Supreme Court held that even the mandatory provision of law can be waived. According to the facts of this case, the judgment-debtor received the notice of the proclamation of sale, did not attend at the drawing up of the proclamation or did not object to the non-compliance of Section 35 of the Bengal Money Lenders Act, which provide that the Court should specify in the sale proclamation the property to be sold. It was held that non-compliance with Section 35 is a defect within the meaning of the second proviso to Order 21 Rule 90 C.P.C. and such mandatory provision can be waived only if it is not conceived in the public interest but in the interest of the party that waives it. Thus, in view of the entire discussion made hereinabove, it must be held that the provisions of Section 14 (3) of the Act, though are mandatory, confers protection to the tenant concerned and such protection can be waived by the tenant and thus it is held that the appellants had waived this right available to them under Section 14 (3) of the Act. (14). (14). On merits, it was contended by learned counsel for the appellants that the trial court did not consider the evidence of the parties properly on the question of reasonable and bonafide requirement of the plaintiff-landlord and the question of comparative hardship was also decided wrongly and further question of partial eviction was not considered at all and thus the case should be sent back to the trial court for deciding the question of partial eviction. In the alternative, it was argued that the suit property comprises of three bed rooms, drawing room, one guest room, garage, one servant quarter etc. and two rooms out of the suit property would serve the purpose of the plaintiff-landlord and further the trial court has allowed permission to raise construction on the first floor. Per contra, learned senior counsel for the plaintiff-respondent submitted that the trial court having taken into consideration the entire evidence rightly decided these issues in favour of the plaintiff- respondent. It was also submitted that objection with regard to partial eviction was not taken and even though this objection may be considered by this Court as material is already available on the record. (15). I have considered the rival submissions. Question of partial eviction was not raised before the trial court but in view of the judgment of this Court delivered in Bhanwarlal vs. Tikam Chand & Ors. (18), this Court can decide this question of partial eviction. Before coming to merits, it would be appropriate to dispose of two applications-one under Order 6 Rule 17 C.P.C. filed on behalf of the appellants and the other under Order 41 Rule 27 C.P.C. filed by the respondent. I heard learned counsel on these two applications also. In application under Order 6 Rule 17 C.P.C. it is stated that both the sons of the plaintiff Rajendra and Anil for whose requirement the decree of eviction has been passed are now married and finally settled in Delhi and they do not want to shift to Jaipur and the plaintiff himself is not residing in Jaipur and the youngest son of the plaintiff has sought the service for himself in Delhi and the plaintiff was having another house at Jaipur which has been sold recently by him and all these are subsequent developments, therefore, the appellants may be allowed to amend their written statement. Vide reply, the plaintiff-respondent has denied all these averments that the plaintiff-respondent has only this house at Jaipur and the plaintiff as well as his all the three sons have not settled at Delhi and they are still waiting for the vacant possession of this house. (16). The present suit for eviction was filed in the year 1981 and impugned decree of eviction was passed on 5.9.1983 and this application on behalf of the appellants was moved in March, 1993 and thus this application was moved after a very long delay and secondly all the averments made in this application have been denied and as a matter of fact the averments made in this application cannot be said to be subsequent events as no details have been given. Learned senior counsel for the plaintiff- respondent rightly submitted that this application has been moved only with an intention to delay the disposal of this appeal. Thus, this application being liable to be dismissed is hereby dismissed. Vide application under Order 41 Rule 27 C.P.C. it was pleaded by the plaintiff-respondent that during the pendency of this appeal all his three sons are now married and the plaintiff has already retired from service and all of them want to settle at Jaipur. It was also stated that the appellant-society has acquired large plots of land, first plot in S.F.S., Mansarovar, Gurukul Marg, Jaipur having an area of 11781 sqm. and the second plot No. 120, Sector-12, Near Thadi Market, Mansarovar, Jaipur having an area of 6250/- sqm. and has built up huge constructions and the market value of the building is over Rs. 2 crores. In reply, these facts of acquiring plots and construction thereon were not denied. In reply, it was stated that looking to the dedicated service of the appellant-society the Government of Rajasthan was pleased to give the land at concessional rate on lease for running the school and college. (17). Thus, looking to the averments with regard to allotment of two large plots of land as detailed in para (e) of this application and not denied by the appellants, question of partial eviction can easily be decided in favour of the plaintiff- respondent. Further keeping in view the activities of the appellants, partial eviction of the suit property cannot and would not serve the purpose of the appellants. Further keeping in view the activities of the appellants, partial eviction of the suit property cannot and would not serve the purpose of the appellants. On the points of reasonable and bonafide requirement and comparative hardship, the learned trial Judge has considered the entire evidence in detail and came to this conclusion that the plaintiffs both sons have taken premises on rent at Jaipur to carry on their business and to reside there and the plaintiff and his sons have no other house at Jaipur. The statement of the plaintiff on this aspect was corroborated by P.W. 2 Sh. Rajan who is son of the plaintiff, P.W. 3 Sh. S.S. Bhandari and by P.W. 4 Sh. Harishankar. P.W. 5 Ram Kishore also supported the statement of the plaintiff and stated that both the sons of the plaintiff are tenants in his house at monthly rent of Rs. 500/-. Thus, keeping in view such clear evidence, there is no ground to interfere with the well considered findings of the trial court on both these points. (18). Consequently, in view of the entire discussion made hereinabove, this appeal is hereby dismissed with costs.