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2012 DIGILAW 1184 (RAJ)

Raghunath Prasad v. Rameshwar Lal

2012-05-09

PRASHANT KUMAR AGARWAL

body2012
JUDGMENT 1. - The plaintiff-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 12.4.2002 passed by the Additional District Judge No. 2, Sikar Camp at Srimadhopur in Civil Regular Appeal No. 23/2001 whereby the learned Appellate Court by setting aside and reversing the judgment and decree dated 27.5.1996 passed by the trial Court i.e. Civil Judge (Junior Division), Srimadhopur in Civil Suit No. 81/80 dismissed the suit filed by the plaintiff-appellant for eviction of defendant-respondents from the suit premises. 2. The brief relevant facts for the disposal of this second appeal are that the appellant landlord filed a suit for eviction and for recovery of arrears of rent on 26.7.1980 against the tenant-respondents with the averment that the suit premises, which is in the form of an open land (Nohra), was let out to the respondents on 1.4.1971 at the monthly rent of Rs. 27.50/- for a period of one year and in this regard a rent-note was also executed. It was further averred that the respondents have failed to pay rent since Jeth Badi 7 Samvat 2035 and they have committed default in payment of rent for more than six months. It was further averred that the respondents without the permission of the appellant have constructed a shop and a room in the suit premises and, therefore, they have made material alteration in the suit premises. It was also averred that the suit premises is required by the appellant bonafidely and reasonably for the use and occupation of his son. It was prayed that the respondents may be evicted from the suit premises and the arrears of rent may be recovered from them. The respondents filed written statement on 22.12.1980 and it was admitted by them that the suit premises (Nohra) is in their tenancy but grounds of eviction taken in the plaint were denied. It was specifically stated by the respondents that with the permission of the appellant they have constructed a room and a tin shed expanding an amount of Rs. 7,000/- which is recoverable from the appellant and when they asked the appellant to pay the same, present suit for eviction has been filed by the appellant. It was specifically stated by the respondents that with the permission of the appellant they have constructed a room and a tin shed expanding an amount of Rs. 7,000/- which is recoverable from the appellant and when they asked the appellant to pay the same, present suit for eviction has been filed by the appellant. As the suit for eviction was also filed on the ground of default in payment of rent, the learned trial Court in accordance with the provisions of Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) provisionally determined the rent vide order dated 5.11.1982. On the basis of pleadings of the parties, the trial Court framed following issues on 5.9.1984 : " 1- vk;k izfroknh us tsB cqnh 7 lEor~ 2035 ls fdjk;k ugha fn;k vkSj os fMQkYVj gSaA 2- vk;k izfroknhx.k us pqDrk fdjk;k vnk dj fn;kA 3- vk;k izfroknhx.k us uksgjs esa dejk Vhu 'kSM cukdj tks ifjorZu fd;k og oknh dh Lohd`fr o vkxzg ls fd;kA 4- vk;k uksgjs dh oknh dks vko';drk gS rFkk rqyukRed lqfo/kk fdlds i{k esa gSA 5- nknjlhA " 3. Both the parties adduced oral as well as documentary evidence and learned trial Court after hearing the parties and appreciating and evaluating the evidence available on the record vide judgment and decree dated 27.5.1996 decreed the suit filed by the appellant. Under issue Nos. 1 and 2, it was held by the Court that the respondents have committed default in payment of rent as they failed to produce necessary documents in support of their contention that the due rent was deposited by them from time to time under Section 19-A of the Act but benefit of first default was afforded to them and the Court refused to pass decree for eviction on the ground of default in payment of rent. Under issue No. 3, it was held by the trial Court that the respondents without permission of the appellant have constructed a room and tin shed and also opened a new door in the suit premise’s and the construction made by them is "material alteration" within the meaning of clause (c) of sub-Section (1) of Section 13 of the Act. It was held that the respondents are liable to be evicted on this ground. It was held that the respondents are liable to be evicted on this ground. So far as issue No. 4 is concerned, it was decided against the appellant by holding that the requirement shown by the appellant for his son’s use and occupation cannot be said to be reasonable and bona fide. Consequently, on the findings arrived at under issue No. 3 decree for eviction was passed. 4. Being dissatisfied the respondents filed appeal under Section 96 of the CPC before the First Appellate Court and the same was allowed by impugned judgment and decree dated 12.4.2002. The finding arrived at by the trial Court under issue No. 3 was reversed by the Appellate Court holding that the construction said to be made by the respondents cannot be said to be material alteration. It is pertinent to note that the appellant also filed cross-objections in regard to the findings of the trial Court under issue Nos. 1 and 4 but the same were dismissed by the Appellate Court. Feeling aggrieved, the plaintiff-appellant is before this Court by way of this Civil Second Appeal. No one appeared on behalf of the defendant respondents despite due service of notice upon them. This appeal was admitted on 27.11.2007 on the substantial questions of law framed by the appellant in para (f) of the memo of appeal, which are as below : (i) Whether the defaulter tenant can be given protection against eviction under Section 13(6) of the Rajasthan Premises (Control of Rent & Eviction) Act without payment by him of provisional rent determined under Section 13(3) of the Act and payment of current rent as required under Section 13(4) of the Act till the eviction proceedings are terminated ? (ii) Whether the finding on personal bona fide need given by the courts below is against the pleadings, material evidence, admissions on the record and so perverse and arbitrary ? (iii) Whether the construction of a shop and raising a tin shed by the tenant in the rented Nohra do not amount to material alteration within the meaning of Section 13(1)(c) of the Act ? (iv) Whether the finding of reversal on issue No. 3 about material alteration given by the appellate court is based on non-consideration of material evidence and against the pleadings and terms of rent note ? 5. (iv) Whether the finding of reversal on issue No. 3 about material alteration given by the appellate court is based on non-consideration of material evidence and against the pleadings and terms of rent note ? 5. On consideration of the submissions made on behalf of the appellant and after going through the record made available for my perusal as well as the relevant legal provisions and the case law, I am of the view that the present appeal is liable to be allowed and the impugned judgment and decree dated 12.4.2002 passed by the Appellate Court is required to be set aside for the following reasons : (1) Because the defendant respondents were legally liable to pay or deposit the monthly rent as provisionally determined by the learned trial Court vide order dated 5.11.82 in compliance of Section 13(4) of the Act even during pendency of this second appeal but they failed to do so. Hon’ble Supreme Court in case of Shiv Dutt Jadiya v. Ganga Devi reported in 2002 WLC (SC) Civil 320 : 2002(3) SCC 189 has held that in a suit filed for eviction of a tenant from the tenanted premises on the ground of default in payment of rent, it is required by the tenant to pay provisional rent as determined by the trial Court under Section 13(3) of the Act in accordance with the provisions of Section 13(4) of the Act not only during pendency of the suit but even during pendency of appeal, if the suit filed by the landlord is dismissed and against the decree of dismissal the landlord has filed an appeal. According to Hon’ble Court the tenant is bound to comply with the provisions of sub-Section (4) if the claim for eviction on having been denied by the trial Court but perused in appeal by the landlord. If, during pendency of appeal the tenant fails to pay or deposit the monthly rent in accordance with the provisions of sub-section (4) of Section 13 of the Act the benefit provided under sub-section (6) cannot be afforded to such a tenant and a decree for eviction on the ground of default in payment of rent is liable to be passed against the tenant. In the present case, although, the respondents cannot be held to be liable to pay rent during pendency of the first appeal as the decision of Hon’ble Apex Court in the above case was rendered on 20.2.2002 whereas the first appeal itself was decided on 12.4.2002 and, therefore, the principle propounded by Hon’ble Supreme Court cannot be held applicable during pendency of the first appeal but as soon as that appeal was allowed and the suit filed by the appellant was dismissed and against the appellate judgment and decree present appeal was filed, it was bounden duty of the respondents to pay or to deposit the monthly rent as determined by the trial Court in accordance with the provisions of sub-section (4) of Section 13 of the Act during pendency of this appeal, which they have failed to do and, therefore, in the light of the principle laid down by Hon’ble Supreme Court benefit of first default cannot be afforded to the respondents and a decree for eviction is liable to be passed against them on the ground of default made in payment of the rent also. It is true that benefit of first default was correctly afforded by the trial Court to the respondents as during trial, it was never contended by the appellant that the respondents have failed to comply the order of determination of provisional rent and they have failed to pay or deposit the monthly rent during pendency of the suit in accordance with the provisions of sub-section (4) of Section 13 of the Act but in the change circumstances during pendency of this second appeal the respondents have made them liable to be evicted from the suit premises even on the ground of default in payment of rent as they failed to pay or deposit the monthly rent. (2) Because this finding of the First Appellate Court is illegal and perverse that the construction made by the respondents in the suit premises are not "material alteration" within the meaning of clause (c) of sub-section (1) of Section 13 of the Act. Both the courts below have concurrently found that the respondents without the permission of the appellant have constructed a shop and Chabutra and a tin shed and also opened a new door in the suit premises during the subsistence of the tenancy. Both the courts below have concurrently found that the respondents without the permission of the appellant have constructed a shop and Chabutra and a tin shed and also opened a new door in the suit premises during the subsistence of the tenancy. The learned trial Court found that the construction so made by the respondents are material alteration whereas the First Appellate Court concluded that the construction so made cannot come within the purview of the material alteration. In para five of the plaint it was averred that the respondents without the permission of the appellant have constructed a shop and also a rom with tin shed on it and by doing so they have made material alteration in the suit premises. In the written statement, it was stated by the respondents that they have constructed a room and tin shed in the suit premises with the permission of the appellant and an expense of Rs. 7,000/- was incurred by them, which is recoverable from the appellant. It is, thus an admitted fact that during tenancy, a room and tin shed was constructed by the respondents but it was their case was that they were constructed with the permission of the appellant but both the courts below have found that the respondents have failed to prove such permission of the appellant. In his cross-examination also respondent Rameshwar Lal has admitted that when the suit premises was taken on rent it was surrounded by a boundary wall of the height of 3 to 4 feet and only a door was situated on it. He has further admitted by him that; after taking the premises on rent they opened a second door, constructed a shop and tin shed in it. From the averment made in the written statement and from the admissions made by the respondent in his statement, it is clear that during tenancy they constructed a room, tin shed and a door in the suit premises without the permission of the appellant. 6. Hon'ble Supreme Court in the case of Om Prakash v. Amar Singh and another reported in AIR 1987 Supreme Court 617 has laid down the criteria under which a construction made by the tenant can be said to be a "material alteration" within the meaning of relevant provisions of the Rent Control Act. 6. Hon'ble Supreme Court in the case of Om Prakash v. Amar Singh and another reported in AIR 1987 Supreme Court 617 has laid down the criteria under which a construction made by the tenant can be said to be a "material alteration" within the meaning of relevant provisions of the Rent Control Act. Hon’ble Supreme Court in para 6 of the judgment has held that: "In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they made changes in the front and structure of the accommodation having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which ; bring about substantial change in the front and structure of the building should provide a ground for tenants eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants made minor t constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give exhaustive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts "of each case." 7. If in the light of criteria laid down by Hon’ble Supreme Court, the constructions made in the present case are considered, it is very much clear that the constructions so made by the respondents are "material alteration" within the meaning of clause (c) of sub-section (1) of Section 13 of the Act. If in the light of criteria laid down by Hon’ble Supreme Court, the constructions made in the present case are considered, it is very much clear that the constructions so made by the respondents are "material alteration" within the meaning of clause (c) of sub-section (1) of Section 13 of the Act. It is an admitted fact that the suit premises when let out to the respondents was in a form of an open land (Nohra) having a boundary wall of the height of 3 to 4 feet having only door on it. In my opinion when a tenant constructs a room and tin shed on a vacant land taken rent, such construction is material alteration as it will naturally affect the form and character of the rented premises. The constructions so made by the respondents in the present case are substantial in nature they as they have altered the form, front and structure of the suit premises which was admittedly an open land when it was let out to the respondents. It is true that each and every construction made by the tenant in a tenanted premises cannot be said to be material alteration but a construction which substantially changes the form and structure of the tenanted premises tant amounts to material alteration within the meaning of clause (c) of sub-section (1) of Section 13 of the Act. The question whether disputed constructions constitute material alteration is not a question of fact only but it is a mixed question of fact and law and in an appropriate case High Court in second appeal also can reverse the finding of the First Appellate Court. In the present case the learned trial Court after considering the nature of the constructions made by the respondents and the principle laid down by Hon’ble Rajasthan High Court in various decisions rightly held that the constructions are material in nature but learned Appellate Court without considering the matter in a right prospective has wrongly held that the constructions were made by the respondents in accordance with the permission stipulated in the rent note which are of temporary nature removable within few hours. It is pertinent to note that it was not pleaded by the respondents for what purpose the suit premises was let out to them. It is pertinent to note that it was not pleaded by the respondents for what purpose the suit premises was let out to them. It is not the case of the respondents that the aforesaid constructions were made for the convenient use of the tenanted premises. A construction which substantially alters the form, front and structure of the premises cannot be said to be of a temporary nature even if the same can be removed without much effort within no time. 8. The result of all this discussion is that this appeal is liable to be allowed and the respondents are liable to be evicted from the suit premises on the ground of default in payment of rent and "material alteration" made by them. 9. Consequently, this civil second appeal succeeds and the judgment and decree dated 12.4.2002 passed by the First Appellate Court i.e. Additional District Judge No. 2, Sikar Camp at Srimadhopur passed in Civil Regular Appeal No. 23/2001 is set aside and that of the trial Court i.e. Civil Judge (Senior Division), Srimadhopur dated 27.5.1996 passed in Civil Suit No. 81/80 is restored and the suit filed by the plaintiff appellant is decreed with cost throughout. Two months time is granted to the defendant respondents to vacate the suit premises and to hand over the peaceful possession of the same to the plaintiff appellant.Appeal allowed suit decreed tenant to vacate within two months. *******