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2006 DIGILAW 628 (RAJ)

Late Mahadev v. Babu Lal

2006-02-23

VINEET KOTHARI

body2006
Judgment Dr. Vineet Kothari, J.-This is tenants second appeal filed under Section 100, CPC having lost the battle before the two Courts below, decreeing the suit against him for eviction of shop in question situated at Naya Bazar, Ajmer wherein the said tenant is carrying on business of Gold Smith. The First Appellate Court vide its Judgment dated 29.05.2002 upheld the Judgment and decree dated 25.05.2001 of the learned trial Court. 2. The grounds of eviction were personal bona fide necessity of landlord and default in payment of rent. The trial Court directed the defendant tenant to handover the peaceful possession of the shop in question within two months to the landlord and till then to pay Rs. 85/-per month as rent of the shop. .3. In the present second appeal, the tenant has raised the question of law claiming it to be a substantial question of law, which was not raised by him before the two Courts below namely; .(i) Whether the landlord purchasing the suit premises during the tenancy which are used for commercial purposes is entitled to file a suit before the expiry of period of five years, in view of the restrictions contained in Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. .4. Though, this question has been debated often but it seems that since no clear answer to that has emerged so far that is why this question was allowed to be raised during the course of arguments at the stage of admission this second appeal and arguments on both the sides were heard elaborately. .5. Section 14 of the Act, is reproduced as under:-“Section 14. Restriction on eviction:-(1) No decree for eviction on the ground set forth in Clause .(b) of Sub-section (1) of Section 13 shall be passed unless the Court is satisfied, after taking all the facts and circumstances into consideration, that it is reasonable to allow such eviction. (2). No decree for eviction on the ground set forth in Clause (h) of Sub-section (1) of Section 13 shall be passed if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. .(3) 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. From a bare perusal of Section 14(3) of the Act, it appears that the non obstante clause contained in Section 14(3) of the Act, prohibiting the suit for eviction and the words are “no suit shall lie against tenant” is with a view to protect the tenant for a period of five years from the date of commencement of tenancy so that a tenant who is apparently to use such premises for his business purposes is not disturbed at-least for a period of five years so that he has a sort of peace with his business and does not have to move every now and then with his business lock, stock and barrel. Section 14(3) of the Act, also applies only when the landlord claims the eviction for his personal bona fide necessity, the grounds set-out in Section 13(1)(h) of the Act and for no other ground. This also protects inter se balance of convenience between the ground of eviction and necessity of tenant who is to use such premises for his business or commercial purposes. But the question arises as to what is the position when a new person who purchases such tenanted premises from the erstwhile landlord or owner, as to whether a new tenancy between the original tenant and the new landlord or the purchaser owner comes into existence so as to give a fresh protection period of five years under Section 14(3) of the Act or the status and relationship of the original tenant with the erstwhile owner as well as the period of five years under that relationship is the only protection available to the tenant and the new purchaser cum landlord does not have to wait for the further period of five years from the date of purchase of property. Another aspect of the matter would be as to what interpretation should be given to the words “shall lie against a tenant.” Whether the said words prohibit the institution of suit by the new purchaser cum landlord and in case, such suit has been instituted prior to expiry of five years, after the date of purchase of property, whether such a decree deserves to be set aside altogether or whether the words “shall lie against a tenant” would mean that at the time of trial or decree if during the period of trial if such period of five years, even if taken to be commencing with the date of purchase of property, the decree should not be set-aside because the protection period of five years, in any case is over by the time the decree is passed. 7. The above are two important angles which require little more consideration by this Court. 8. A bare reading of Sub-section (3) of Section 14 of the Act, read in the context of object for which the said provision was enacted by the legislature would indicate that no suit for eviction on the ground of personal bona fide necessity can be brought about in the first five years of tenancy. Since, this provision gives a protection to the tenant, in the tenanted premises let out for commercial and business purposes and he is assured for first five years and protected against the eviction sought on the ground of personal bona fide necessity of the landlord covered under Section 13(1)(h) of the Act, there is no indication in the provision of Section 14 in general or Sub-section (3) of Section 14 in particular to provide a fresh protection of five years every time upon change of landlord upon purchase of property or otherwise change of ownership in the tenanted premises. Though the contract of tenancy is also a contract like any other contract, but upon purchase of property the purchaser steps into shoes of the erstwhile owner or the landlord and the rights available to him as such are acquired by such purchaser. It may be emphasised that protection of Section 14(3) of the Act is available only against the ground set out in Section 13(1)(h) of the Act, namely; personal bona fide necessity of the landlord and no other ground mentioned in Section 13 of the Act. It may be emphasised that protection of Section 14(3) of the Act is available only against the ground set out in Section 13(1)(h) of the Act, namely; personal bona fide necessity of the landlord and no other ground mentioned in Section 13 of the Act. Therefore, the eviction on other grounds is possible even during the period of five years, even if the property is let out for commercial and business purposes on such other grounds. The question of bona fide necessity of -course is a question of fact which even a new landlord will have to establish but the spread of such personal bona fide necessity is not co-extensive with the period of protection of five years. The personal bona fide necessity is the cause of action and the suit filed for seeking eviction on that ground is the legal process and the decree of eviction is the recognition of that cause and right and relief granted to the landlord. Therefore, there appears to be no intent of the legislature to grant extension of period of five years every time, the property changes hands to a new landlord who steps into the shoes of the erstwhile landlord. It is a pro tenant provision and, therefore, the protection will go with the period of tenancy and it does not have the relationship with the change of ownership of the property whatsoever. .9. Learned Counsel for the respondent-landlord relied upon the Judgment of this Court in the case of Khatoon Begum (deceased) through L.Rs. vs. Bhagwan Das & Ors., 2004 CJ (Rent Control) 188 and also in the case of Sardar Singh vs. Prakash Singh, 1987 RLW 701, wherein this Court has held that enhancement of rent does not mean a new tenancy and taking of actual possession from previous tenant to landlord and from landlord to again to the tenant is essential for new tenancy and the protection of Section 14(3) of the Act would not be available unless a new tenancy can be said to have come into existence. In Khatoon Begums case (Supra), the Court even held on the principle of waiver .that the objection would be deemed to be waived if the said issue is not raised before the trial Court. In Khatoon Begums case (Supra), the Court even held on the principle of waiver .that the objection would be deemed to be waived if the said issue is not raised before the trial Court. However, these cases do not appear to have directly discussed the issue arising in the instant case as to whether upon change in the ownership of the tenanted premises a fresh period of five years is available to the tenant from the new landlord or not. 10. Learned Counsel for the appellant-tenant however, relied upon another Judgment of this Court in the case of Govind Narain vs. Mohan Singh, 1992 (1) WLC 504, wherein this Court while dealing with a case of fresh agreement of lease changing the terms of tenancy like enhancing the rent and making it effective for a period of eleven months from 01.08.1979 to 31.07.1980 at the monthly rent of Rs. 100/-instead of Rs. 50/-previously charged under the old rent deed held that mere continued possession of the tenant in the same premises was of no consequence and since new tenancy came into force with effect from 01.08.1979, the suit filed for eviction on 16.08.1980 was hit by Section 14(3) of the Act and, therefore, the decree for eviction was set-aside. This case is clearly distinguishable from the facts and circumstances of the present case as there is no change of terms of tenancy and no new lease deed or rent deed has been executed by the new landlord and the contract of purchase of property is a bipartite contract between the purchaser and the seller of the premises and as far as this contract is concerned, the tenant is not a party to it. Therefore, there is no question of alteration of terms of his contract i.e. Tenancy even with the change of landlord as the new landlord merely stepped into the shoes of the erstwhile owner. Since, his tenancy in the same premises continued as it is, there is no occasion to grant him fresh period of five years protection under Section 14(3) of the Act. 11. Since, his tenancy in the same premises continued as it is, there is no occasion to grant him fresh period of five years protection under Section 14(3) of the Act. 11. Therefore, this Court is of the view, that no fresh statutory period of protection of five years is available to the tenant upon the change of the ownership of the premises in question and suit for eviction on the ground set-out under Section 13(1)(h) of the Act, can be brought by the new landlord even within five years of his purchase of the property and eviction decree can be passed upon establishing the personal bona fide necessity. 12. The another aspect of the matter as discussed above, is also that there is no intention of the legislature to bar such a decree of eviction after a period of five years from the first date of tenancy even if it were to be held that a fresh period of five years would be available to the tenant from the new landlord upon change of ownership though it is not so held, as discussed above. The words of Section 14(3) are “no suit..... shall lie against a tenant” and not “no suit shall be instituted”. There is a difference between the two words instituted and ‘lie. The word instituted denotes a point of time whereas the word lie denotes a period of time. Therefore, even if a suit is instituted within a period of five years, it may be held to be irregularly instituted but if decree of eviction is passed after five years, the said irregularity gets cured over the period, by lapse of time and the purpose of protection given by Section 14(3) of the Act is achieved with the lapse of five years and after five years, if such a decree of eviction is passed, such decree cannot be said to be hit by Section 14(3) of the Act and cannot be declared to be a nullity for this reason. This is so because the decree of eviction is not merely a determination of right of the landlord to evict the tenant from tenanted premises but also a relief granted on the grounds of eviction established before the Court of law. If at the time of grant of such relief the statutory bar does not come in the way of the Court, it can always be so granted. If at the time of grant of such relief the statutory bar does not come in the way of the Court, it can always be so granted. 13. Therefore, since the decree in the present case when decree was definitely passed beyond the period of five years, it is liable to be set-aside. The property in question was admittedly purchased by the plaintiffs in October, 1986 whereas the decree of eviction was passed on 24.05.2001 after about 14 years and, therefore, there is no question of setting aside the said decree as hit by Section 14(3) of the Act. .14. So far as other question of default is concerned, the same being a finding of fact, is not required to be interfered with in the present second appeal and the contentions raised on behalf of the appellants, that the rent for the premises in question was payable on the basis of luner months and not month wise as per British Calendar and in fact, there was no default does not hold any good as the Courts below have categorically held that there was default in payment of rent even before the filing of the suit for eviction and even during the pendency of the suit. .15. No order points have been urged before this Court. 16. In view of the aforesaid position of law, this second appeal of tenants is found to be without any substance and the same is accordingly dismissed. 17. There is no order as to costs.