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2011 DIGILAW 1094 (RAJ)

Guljar Ali v. Saroj Devi

2011-05-20

S.S.KOTHARI

body2011
Hon'ble KOTHARI, J.—The respondent, the plaintiff, filed a suit for ejectment of a shop situated at Mochiwara Road, Sikar on the ground of default and non-user against the appellant, the defendant. It was mentioned in the plaint that the father-in-law of the plaintiff, late Sh. Mohan Lal Jaipuria, was the owner of the shop and by his Will dated 13.03.1995 he gave it to her. The defendant was a tenant in the shop from the time of her father-in-law but did not deposit rent of Rs.140/- per month after 30.06.96 and thus committed default. It was further mentioned that the shop is not being used for the last three years by the defendant and is lying closed. The suit was contested by the defendant though tenancy was admitted. It was mentioned that he is not aware about the Will as no one informed him. It was also mentioned that after the death of Mohan Lal when he wanted to give rent it was not accepted and he was told that there is a dispute about the shop and rent will be taken by the person who becomes entitled to it in settlement / partition. The shop is being used by the defendant daily and there is no question of non-user. The wife of late Sh. Mohan Lal and his adopted son have not been impleaded as parties and the suit is bad for non-joinder. On the pleadings of the parties, six issues were framed on 08.04.99. Saroj PW-1, Vinod Kumar PW-2 and Vinod Kumar S/o Mohan Lal PW-3 were examined on behalf of the plaintiff. Will and receipts of rent Exts.1 to 3 were proved. Guljar Ali DW-1, Ibrahim DW-2 and Maqbool Ahmed DW-3 were examined on behalf of the defendant. After hearing the parties, the Trial Court decided issue no.1 in favour of the plaintiff and issue nos.2, 3 and 4 against the plaintiff. Issue no.5 was decided against the defendant. Consequently, the suit was dismissed on 10.12.03. The plaintiff preferred appeal against the said judgment and decree. The defendant also filed cross-objections. After hearing the parties, the Appellate Court reversed the finding of the Trial Court on issue no.2 and confirmed the findings of the Trial Court on other issues. In view of the aforesaid findings, the appeal was allowed and the suit was decreed for ejectment of the defendant. The defendant also filed cross-objections. After hearing the parties, the Appellate Court reversed the finding of the Trial Court on issue no.2 and confirmed the findings of the Trial Court on other issues. In view of the aforesaid findings, the appeal was allowed and the suit was decreed for ejectment of the defendant. The defendant has filed this appeal under Section 100 C.P.C. 2. I have heard the learned counsel for the parties carefully and at length. 3. Learned counsel for the appellant has contended that the suit should have been remanded to the learned Trial Court by the learned Appellate Court as it did not agree with its findings. It was further contended that the courts below have not considered the entire evidence regarding payment of rent by the defendant though elaborate evidence was produced by him. His further submission is that the Will in favour of the plaintiff was not proved. Hence, substantial questions of law are involved in this appeal for adjudication by this Hon’ble Court. 4. Learned counsel for the respondent has submitted that the appellant has not only committed default in payment of rent but he also failed to deposit the rent determined by the Trial Court under Section 13 (4) of The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called the Act) on 11.02.99 within the stipulated period. The plaintiff submitted two applications under Section 13 (5) of the Act for striking out the defence of the defendant for non-compliance of the order dated 11.02.99. He has also submitted that the defendant filed application for condonation of delay in depositing the provisional rent determined by the Trial Court. His further submission is that if there was some dispute regarding the ownership of the shop between the heirs of late Sh. Mohan Lal, the defendant could have given notices to them and taken appropriate action of tendering / depositing the rent but nothing was done. The submission of the appellant that the case should have been remanded to the learned Trial Court for a fresh decision is without any basis and illegal. There was no dispute before the learned courts below regarding the Will executed in favour of the plaintiff. In the circumstances, no substantial question of law is involved in this appeal for adjudication by this Hon’ble Court and the appeal deserves to be dismissed. 5. There was no dispute before the learned courts below regarding the Will executed in favour of the plaintiff. In the circumstances, no substantial question of law is involved in this appeal for adjudication by this Hon’ble Court and the appeal deserves to be dismissed. 5. I have given my anxious consideration to the above submissions. 6. So far as the question of remanding the case to the Trial Court for adjudication of dispute between the parties is concerned, it deserves to be mentioned that a case can be remanded under provisions of Order 41 Rule 23 and 23 A C.P.C. Aforesaid Rule 23 (Supra) is applicable when the suit is decided upon a preliminary point and the decree is reversed in appeal. This is not the position in the present case. Rule 23 A (Supra) is applicable when the decree is reversed in appeal and re-trial is considered necessary. Perusal of the judgment of the First Appellate Court shows that the findings of the Trial Court on issue no. 2 was reversed by it on the basis of temporary evidence available on record. I have carefully considered the discussion and finding of the First Appellate Court and feel that there was no disputed question to be resolved for which re-trial was necessary. In the circumstances, the first contention of the learned counsel for the appellant is found baseless. 7. The courts below have examined the evidence produced by the appellant regarding deposit of rent in details. I have carefully gone through the applications submitted by the parties under Sections 13 (4) and 13 (5) of Act as well as under Order 7 Rule 14 C.P.C. A perusal of the application clearly shows that details of the deposits of rent by the appellant were mentioned by him. He also produced receipts and other documents to prove the payment of rent. The Trial Court allowed his application and took all the documents on record. The Trial Court decided issue no.2 against the respondent by condoning the delay in deposit of the rent in compliance of the order dated 11.02.99. However, the First Appellate Court disagreed with the finding in view of the judgment in the case of Nasiruddin and others vs. Sita Ram Agarwal reported at AIR 2003 SC 1543 . The Trial Court decided issue no.2 against the respondent by condoning the delay in deposit of the rent in compliance of the order dated 11.02.99. However, the First Appellate Court disagreed with the finding in view of the judgment in the case of Nasiruddin and others vs. Sita Ram Agarwal reported at AIR 2003 SC 1543 . A reading of the aforesaid judgment makes it clear that the Hon’ble Apex court has categorically held that the court has no power to extend the stipulated period for depositing the provisional rent and future rent by condoning the delay. The aforesaid case arose under the provisions of the Act and the judgments of Full Bench and Larger Bench of this Court in Gopal Das & others vs. Nathulal Baraya reported at AIR 1983 Rajasthan 222 and of the Larger Bench in Sita Ram Agarwal vs. Nasiruddin & Ors. reported at 1997 (1) RLR 686 were over-ruled. The Hon’ble Apex Court held that the provisions of Section 13 (4) of the Act are mandatory and Section 5 of Limitation Act, 1963 is not applicable. The First Appellate Court on the basis of averments made by the appellant in his application dated 06.09.03 held that, according to the appellant himself, the rent for the months of November 2001 and February 2002 was not deposited within stipulated period. Hence, it struck out the defence of the appellant and decided issue no.2 in favour of the respondent. In the aforesaid circumstances, it cannot be contended that the Courts below have not taken into consideration the evidence regarding deposit of rent by the appellant. 8. The respondent filed the suit on the basis of a Will in her favour. The Will was produced in the Trial Court and the appellant could not challenge its illegality and validity during the cross-examination of the plaintiff and her witnesses. In fact, validity of the Will was not subject matter of the suit. 9. From the above discussions, it appears that the Courts below have considered each and every factual aspect of the case keeping in mind the evidence adduced by the parties and the legal position prevailing after the decision in Nasiruddin case (Supra) in 2003. The appellant has formulated following substantial questions of law in his memorandum of appeal:- “(i) Whether the decision being contrary to law or to some usage having the force of law? The appellant has formulated following substantial questions of law in his memorandum of appeal:- “(i) Whether the decision being contrary to law or to some usage having the force of law? (ii) Whether the decision having failed to determine some material issue of law or usage having the force of law & contrary to application of law? (iii) Whether the suit was rightly dismissed by gives a proper judgment which was based on evidence and reverse in appeal without evidence is sustainable in the law? (iv) Whether perverse finding recorded by the appellant is maintainable? Reversing the finding of Trial Court? (v) Whether appellate court erred in interfering with finding of fact in violation of mandatory provision and unreasonable are sustainable? (vi) Whether the first appellate court discarded evidence as inadmissible? “ 10. A reading of the aforesaid questions shows that they cannot be regarded as substantial questions of law in view of the law laid down by the Hon’ble Apex Court. The Hon’ble Apex Court, in the case of Ramaswamy Kalingarayar vs. Mathayan Padayachi, AIR 1992 Supreme Court 115, has observed as under: “… Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of Section 100, C.P.C., which defines the contours of the power of the High Court in second appeal….” 11. The Hon’ble Court in the case of Gurudeo Kaur and another vs. Kaki & others reported at 2007(1) RLW 636 held as under:- “(70) Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) Another part of the section is that the appeal shall be heard only on that question”. 12. Keeping the aforesaid principles of law in mind, I am of the firm opinion that the substantial questions of law, as proposed by the appellant, which have been quoted above, are not substantial questions of law requiring adjudication in this appeal. No other substantial question of law arises in this appeal. Hence, there is no ground for interference under Section 100 C.P.C. 13. Accordingly, the appeal fails and is, accordingly, dismissed. Costs easy. 14. The learned counsel for the appellant submitted that in the circumstances, the appellant may be granted time for vacating the shop. However, to save the defendant from the peril of sudden ejectment, he has to be granted a breathing space. It is directed that the decree for ejectment shall not be available for execution until December 31, 2011 subject to the defendant filing an undertaking within a week on affidavit before the Deputy Registrar (Judicial) of this Court to the effect that on or before December 31, 2011 he shall hand over peaceful vacant possession to the plaintiff and in between shall not induct anyone else in the premises nor part with it. And he will be obliged to pay to the landlord the amount of use and occupation charges, if any, upto the date when rent falls due month by month by the 15th day of that month. Failing the filing of the undertaking or in the event of breach of any of the conditions aforesaid, the decree of ejectment shall be available for execution forthwith.