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2011 DIGILAW 1523 (RAJ)

Oriental Insurance Co. Ltd. v. Prem Nath Motors (Raj. ) Pvt. Ltd.

2011-07-28

MOHAMMAD RAFIQ

body2011
JUDGMENT 1. - This regular first appeal has been filed against the judgement and decree passed by the Additional District and Sessions Judge, Jaipur City, Jaipur dated 26.3.1992 in a suit for eviction filed by the plaintiff-respondent. The suit was filed on the ground of default. It was pleaded that the defendant has committed default in making payment of rent for more than six months starting from 1.1.1981, before the filing of the suit. The trial court on 8.5.1978 passed the order of provisional determination of rent under section 13(3) of the Act. The arrears of rent to the tune of Rs. 96,500,19/- was ordered to be deposited, which amount was deposited by the defendant. However, for the subsequent period, it has been held by the trial court on issue no.3 that the plaintiff-defendant further committed default in making payment of rent for the month of October, 1990. The decree of eviction was passed with direction to the defendant to pay to the plaintiff-respondent a sum of Rs. 12,502.82 towards electricity and water charges. 2. Shri Alok Garg, learned counsel for the appellant has argued that in so far as previous period of default of defendant is concerned, non-payment of rent was owing to the fact that there was a restraint order by the Commercial Taxes Officer, Circle-E dated 4.2.1980 under Section 11A of Rajasthan Sales Tax Act, 1954 requiring the defendant not to pay the amount of rent to the plaintiff. The said order was withdrawn on 25.9.1982. Thereafter the defendant sent to the plaintiff a cheque dated 15.10.1982 of Rs. 51,119,32/- by registered A.D. Post towards all the arrears, which was received by him on 22.10.1982. It was argued that the matter on behalf of defendant-appellant Oriental Insurance Company Ltd. was not diligently conducted. Despite grant of several opportunities, the Officer in charge has acted negligently and therefore all these facts could not be proved by lead of evidence. In fact, no evidence was led on behalf of defendant and it was in the absence of evidence that the suit was decreed against the defendant-appellant. Learned counsel submitted that the plaintiff has even denied the receipt of two cheques sent to him in November, 1982 and December, 1982, whereas these cheques were sent to him by registered post which he refused to accept. Even this evidence could not be brought on record due to aforesaid negligence. Learned counsel submitted that the plaintiff has even denied the receipt of two cheques sent to him in November, 1982 and December, 1982, whereas these cheques were sent to him by registered post which he refused to accept. Even this evidence could not be brought on record due to aforesaid negligence. Learned counsel has cited the judgement of Supreme Court in J. Jermons v. Aliammal & Ors.- (1999) 7 SCC 382 and argued that Supreme Court in that case which too pertained to the eviction suit held that non-payment of rent due to restraint order passed by the Income Tax Officer under Section 222(1)(a) of Income Tax Act, 1961 read with Rule 26(1)(a) of Second Schedule thereto. does not constitute willful default on the part of the tenant. Learned counsel submitted that even the rent of the month of October, 1990 was also paid by cheque on 28.11.1990. According to Section 13(4) the rent was required to be paid within 15 days and for such delay in payment, the Court has the discretion to extend such period by further 15 days, but because the case on behalf of the defendant-appellant was negligently conducted, such application could not be made to the Court in time. 3. Learned counsel cited the judgement of this Court in Radhey Shyam Dhoot v. State of Rajasthan & Ors.-2009 WLC (Raj.) UC 595 and argued that in that case in spite of 11 opportunities, evidence was not led by the defendant and the suit was decreed against him. However, this Court granted one last opportunity on payment of cost of Rs. 2,000/- by setting aside the judgement and decree of the trial court and remanded the matter back. Learned counsel for the same proposition of law cited the judgment of this Court in Om Prakash & Ors. v. Ram Dutt & Anr.-RLW 1999 (2) Raj. 1254 in which case despite 19 opportunities granted, defendant failed to adduce evidence and the Court was yet persuaded to grant one more opportunity on payment of cost. 4. It is therefore prayed that the appeal be allowed and the matter be remanded to the Court for granting one last opportunity of a fortnight within which period, the defendant-appellant would adduce all its evidence, on payment of reasonable amount of cost. 5. 4. It is therefore prayed that the appeal be allowed and the matter be remanded to the Court for granting one last opportunity of a fortnight within which period, the defendant-appellant would adduce all its evidence, on payment of reasonable amount of cost. 5. Shri S.C. Goyal, learned counsel for the plaintiff-respondent has opposed the appeal and argued that plaintiff cannot be made to suffer for default or negligence on the part of the appellant-defendant and its employees. It is argued that as it is, this matter has been delayed so much that the suit was filed in the year 1982 and it was decreed by order dated 26.3.1992 and now thereafter also the period of 19 more years have gone by since the appeal was filed in this Court. The rented premises of the area where the disputed showroom is situated is M.I. Road, which is the most costliest road of Jaipur City and the land and rental value of that area has undergone tremendous hike. It is argued that this Court ought not to grant any opportunity to a litigant who has acted negligently in conduct of this litigation. 6. On merits, learned counsel for plaintiff-respondent argued that even if the defendant-appellant in written statement pleaded about the statutory restraint order passed by the Commercial Tax Officer, but that by itself could not be taken as a proof of such fact which could be accepted as a fact only if an evidence thereabout was led by the defendant. The first date of recording evidence of the defendant is 4.3.1991. Thereafter, the defendant was granted 10 more opportunities to do so, but he did not adduce any evidence. The suit has rightly been decreed on the ground of default because not only for the previous period, but the default has been found proved, subsequent to determination of provisional rent also, it was proved by evidence that the defendant did not either pay or tender the rent for the month of October, 1990 and thereby committed second default in the meaning of Section 13(1) read with Section 13(4) of the Act. 7. I have given my anxious consideration to the rival submissions and perused the material on recorded. 8. The suit for eviction was filed on 13.12.1992 and the land price as also the rental value have been tremendously enhanced on M.I. Road of Jaipur City. 7. I have given my anxious consideration to the rival submissions and perused the material on recorded. 8. The suit for eviction was filed on 13.12.1992 and the land price as also the rental value have been tremendously enhanced on M.I. Road of Jaipur City. But then the Court also cannot overlook the fact that plaintiff has made out a prima facie case to show why he did not pay the rent for the period of six months starting from 1.1.1981, which has been held to be first default and on which basis the order of provisional determination of rent was passed and further on which basis the default for the payment of rental for October, 1990 having been held to be a subsequent default, the decree of eviction has been passed. This argument is sought to be supported by the judgement of Supreme Court in J. Jermons, supra with further argument that even the rent for the month of October, 1990 was also paid. The Court is also cognizant of the fact that the period of almost more than three decades have gone by since the date the suit was originally filed, therefore, for the negligence on the part of the defendant-appellant which is a public sector undertaking, the plaintiff-respondent has been made to suffer. If one opportunity to adduce evidence is now granted to the defendant, the cost that has to be awarded to the plaintiff-respondent has to be not just and reasonable but an exemplary cost in the facts of the present case. Learned counsel for the appellant has on this aspect cited two judgements of this Court in Om Prakash and Radhey Shyam, supra wherein this Court has been persuaded to grant one more opportunity to defendant to adduce the evidence despite 19 and 11 repeated opportunities granted earlier. 9. In the circumstances, this appeal is allowed. The impugned order dated 26.3.1992 is set aside and the matter is remanded back to the learned trial court subject to payment of Rs. 25,000/- to the plaintiff respondent. Parties are directed to appear before the trial court on 10.8.2011. General Manager of the defendant-appellant Oriental Insurance Company Ltd. is directed to fix the responsibility of the negligent Officer-in-charge and recover this amount from such Officer-in-charge. 25,000/- to the plaintiff respondent. Parties are directed to appear before the trial court on 10.8.2011. General Manager of the defendant-appellant Oriental Insurance Company Ltd. is directed to fix the responsibility of the negligent Officer-in-charge and recover this amount from such Officer-in-charge. The defendant appellant shall be under an obligation to adduce its evidence within a period of a fortnight on such dates as may be fixed by the trial court within that period of fortnight. The plaintiff shall also be at liberty to lead any evidence in rebuttal, within a period of fortnight thereafter. Considering the fact that remand of this matter would revive the civil suit that was filed in the year 1982, the learned trial court shall make endeavour to finally decide the suit within a period of one month thereafter. 10. This appeal is disposed of accordingly with costs as indicated above.Case Remanded in Appeal. *******