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2005 DIGILAW 3010 (RAJ)

Mohan Lal v. L. Rs. of Ram Prakash

2005-11-17

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellant as well as learned Counsel for the respondents. 2. It will be worthwhile to narrate few facts of the case. The plaintiff-appellants are the landlords and defendants-respondents are tenants in the shop in dispute. The rent deed was executed on 01.06.1969 containing the terms that presently, the height of the shop is 18 ft. and in front of the shop there is a verandah with 10 ft height. The landlord whenever will wish to reduce the height of the shop from 18 ft. to 10 ft, the defendants shall not raise any objection. Another term was that near the shop in dispute, there is a stair-case and the landlord shall have right to remove that stair are and can make a passage for which also, the tenants shall not raise any objection. The landlords filed the suit for specific performance of contract on 25.03.1980 stating therein that now the plaintiffs want to enforce the condition of the rent deed dated 01.06.1969.The suit of the plaintiffs was dismissed by the trial Court by the Judgment and decree dated 18.08.1988. The appeal against the said Judgment and decree too was dismissed by the first appellate Court on 02.06.1989. Hence, this second appeal. 3. Following substantial questions of law were framed by this Court while admitting the appeal on 25.07.1991: “(i) Whether new tenancy comes in force by enhancing the rent. The terms of the old tenancy continuous even after the enhancement of the rent? (ii) Whether by creating a mortgage the plaintiff s right under the agreement executed by the parties does not extinguishes?” 4. Learned Counsel for the appellant submits that the rent deed was executed between the parties and by enhancing the rent other terms of the tenancy have not been changed nor creation of mortgage by the plaintiff for the shop in question destroyed the right of the plaintiffs under the said agreement. The plaintiffs were owner of the property and are owner of the property therefore, they can take benefit of the term of the contract. Otherwise also, the defendants cannot have any right to interfere in the alteration, which may be made by the plaintiffs in accordance with the agreement of the parties contained in the rent deed. 5. I considered the submissions of learned Counsel for the appellants and perused the record also. Otherwise also, the defendants cannot have any right to interfere in the alteration, which may be made by the plaintiffs in accordance with the agreement of the parties contained in the rent deed. 5. I considered the submissions of learned Counsel for the appellants and perused the record also. It will be worthwhile to mention here that the alleged agreement (as per conditions mentioned in the rent deed dated 01.06.1969) is of the year 1979. The plaintiffs sought its enforcement after 11 years. The plaintiffs filed a suit under assumption that as per terms in the rent deed dated 01.06.1969 they have been given unlimited time for having their desire of making alteration in the suit property. The tenancy was created for a shop measuring of 18ft. height. By this agreement the plaintiffs want to reduce the height of the shop i.e., to 10 ft. only and want to raise a passage, that amounts to evicting tenant from the part of the premises. In view of the provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short `the Act of 1950), the landlord can seek eviction of tenant, on the ground of landlords need. By this agreement the tenant only admitted that he will allow the landlord to take possession of the part of the rented premises on his desire. The law is well settled that tenant can be evicted even from part of the premises only when plaintiff proves not only his need but bona fide need and shows hardship in case tenant is not evicted from the premises. Any contract of evicting tenant (even from the part of the rented premises) without proving the case under the Act of 1950 is void. Even as per Section 14 of the Act of 1950, the Court can pass the decree for partial eviction of the tenant from the rent premises. Therefore, even if in the rent deed, the defendant-tenant admitted that he will handover the part of the premises to the landlord for particular purpose, which may be required by the landlord in future then that agreement is an agreement for eviction of the tenant from the part of the premises whereas the Rent Control Act prohibits, the eviction of tenant from the part of the premises or even part of the premises by the landlord. This aspect was not considered at any point of time by the Courts below nor this was the defence taken by the defendant, but if this Court will allow the appeal of the appellant then it shall be decreeing the suit for eviction of tenant from part of the premises under the garb of suit for specific performance of contract. 6. In view of reasons mentioned above, no relief can be granted to the plaintiff in the present suit, in a suit framed as suit for specific performance of contract but in fact seeking eviction of tenant from the part of the premises. 7. In addition to above it will worthwhile to mention here that in the plaint it is not pleaded by the plaintiffs that they were ready and willing to perform their part of the contract. Apart from this it will be absolutely unjust and improper to pass a discretionary decree in favour of the plaintiff for specific performance of contract in the year 2005 for a contract of 1969. 8. In view of the above, the appeal of the appellant is dismissed as no relief can be granted to the appellant. No order as to costs.