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2015 DIGILAW 461 (RAJ)

Sharafat Hussain v. Irshad

2015-02-19

NISHA GUPTA

body2015
JUDGMENT : 1. The instant civil second appeal has been preferred against the judgment & decree dated 31/03/2006 passed by District Judge, Tonk by which he allowed the regular appeal filed by the defendant-respondent and set-aside the judgment and decree dated 07/01/2002 passed by the court of Civil Judge (Junior Division) and Judicial Magistrate, First Class, Tonk decreeing the civil suit for eviction on the ground of bona fide necessity and for recovery of rent in favour of the plaintiff-appellant. 2. The facts giving rise to this appeal in brief are that the plaintiff-appellant filed a suit for eviction on the ground of default and bona fide necessity. As regards to default, benefit of first default has been allowed and issue regarding bona fide necessity was decided in favour of the plaintiff against which, appeal has been preferred and appellate court has set-aside the decree for eviction after consideration of the application under Order 41, Rule 27 CPC. Before the court below, contention of the appellant was that he is in bona fide need of the suit premises to run a shop for his son Shadab Hussain. Appellant and Shadab Hussain both have appeared in the witness box and the trial court has decreed the suit on the ground of bona fide necessity but the appellate court has reversed the finding on the ground that landlord has acquired the possession of one vacant shop and need if any has been satisfied. 3. Heard learned counsel for the parties and perused the impugned judgment and decree as well as original record of the case. 4. The suit has been filed with the contention that appellant is in need of the shop in question to run the business for his son and in examination before the court below, appellant has submitted that he had only two other shops and one shop in question, whereas subsequent events have been brought on record, which clearly shows that possession of one shop has been received by the appellant, which was in possession of tenant Mohd.Aslam. Contention of the appellant is that it was only an exchange. Shop No.4, which was in occupation of the appellant has been sold to Mohd.Aslam and shop No.2, which was in possession of Mohd.Aslam remained with the appellant. Contention of the appellant is that it was only an exchange. Shop No.4, which was in occupation of the appellant has been sold to Mohd.Aslam and shop No.2, which was in possession of Mohd.Aslam remained with the appellant. Hence, no new shop came in possession of the appellant and the appellate court has not considered his need in the above prospective. Per contra, the contention of the tenant is that admittedly, the appellant is having four shops out of which, one vacant shop is with the appellant since institution of the suit and as per his own contention, he is working at Krishi Upaj Mandi Tonk hence, when shop is lying vacant with the appellant, appellate court has rightly decided the issue of bona fide necessity against the appellant. 5. Contention of the appellant is that he is the best judge of his need and reliance has been placed on the judgments of this Court in Allimuddin v. Chandrika Prasad and others, 1996 (1) RLW( Raj.) 289 and Rishi Kumar Govil v. Maqsoodan and others and the judgment of Supreme Court in M/s. Sait Nagjee Pursushotham & Co. Ltd. v. Vimalabai Prabhulal & Ors. AIR 2006 SCW 45 . There is no dispute about these legal propositions but here, no question of judging the need will arise at the appellant has not to decide that out of four, in which shop he should start business for his son. When apparently, one shop is lying vacant with him, if there is any need for his son, it could be carried out in this shop, which is lying vacant with him and appellate court has also rightly held so. Hence, there is no perversity in the finding of the appellate court as regards to Issue No.2 and appellate court has rightly held that one shop was lying vacant with the appellant since filing of the suit but this fact has not been disclosed before the trial court. 6. Contention of the appellant is that subsequent developments can only be taken into account when need of the landlord is completely eclipsed by such subsequent events and reliance has been placed on the judgment of Supreme Court in Gaya Prasad v. Pradeep Shrivastava, AIR 2001 SC 803 . 6. Contention of the appellant is that subsequent developments can only be taken into account when need of the landlord is completely eclipsed by such subsequent events and reliance has been placed on the judgment of Supreme Court in Gaya Prasad v. Pradeep Shrivastava, AIR 2001 SC 803 . Here, the case is precisely not of subsequent events but this fact has clearly comes up on record that one shop is lying vacant with the appellant since filing of the suit and appellant has purposely had not disclosed this fact before the courts. Hence, in the light of the above, first appellate court has rightly held that appellant is having suitable accommodation to start the business of his son and need of the appellant rightly not being accepted and no fault can be found in the finding and reasoning of the appellate court as regards to Issue No.2 and appeal is not liable to be admitted on this ground. 7. Appellant has also moved an application u/S.13(5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (shall hereinafter be referred as the "Act of 1950") for striking-off defence of the respondent with the contention that rent has not been paid since June, 2006 hence, benefit of first default could not be allowed to the respondent u/S.13(6) of the Act of 1950. Reply has been filed in which, admitted case of the respondent is that rent has not been paid to the appellant since June, 2006 but the contention of the respondent is that he asked for the bank account number by moving an application dated 18/01/2007 but no bank account number has been furnished to him. Thereafter, he gave registered notice and also sent money orders, which are refused. He is ready and willing to pay the amount hence, defence could not be struck-off and further contention of the respondent is that question of default is no more in issue and hence, provision of Section 13(5) of the Act of 1950 will not apply. 8. Heard learned counsel for the parties on the above issue. This is admitted case of the parties that respondent has not paid rent after June, 2006. It has been brought on record that the notices and money orders have been sent but this is not the requirement u/S.13(4) of the Act of 1950. 8. Heard learned counsel for the parties on the above issue. This is admitted case of the parties that respondent has not paid rent after June, 2006. It has been brought on record that the notices and money orders have been sent but this is not the requirement u/S.13(4) of the Act of 1950. Only requirement u/S.13(4) of the said Act is that the tenant should pay the amount to the landlord or to deposit in the court. Since the landlord has not furnished bank account number even before the courts below and tenant has to deposit rent in the court now, to file again the application for the same is misconceived and when landlord has not furnished any bank account number, it was the duty of the respondent u/S.13(4) of the Act of 1950 to deposit the amount in the court but he has not done so and only money orders and notices have been sent, which is the requirement u/S.19-A of the Act of 1950 and admittedly, when suit has been filed and determination has been made u/S.13(4), provision of Section 19-A of the Act of 1950 would not apply. Respondent has relied on the judgment of this Court in Smt. Manak Bai & Ors. v. Kalyan Bux, 1989 (2) RLR 704 , where provision of Section 19-A vis-a-vis provision of Section 13(1)(a) of the Act of 1950 have been explained but here in the present case, simple case of the landlord is that inspite of the order u/S.13(4) of the said Act, rent has not been deposited and not paid. Reliance has rightly been placed on the judgment of Supreme court in Shiv Dutt Jadiya v. Ganga Devi, 2002 (3) RLW( SC) 440 , in para 8 of which, the Hon'ble Supreme Court has observed, as under:- "(8). In the case before us, the issue of the tenant having committed a default and hence having incurred liability for eviction was being pursued by the landlord in appeal. The question whether the tenants defence against eviction was liable to be struck out or not, was an issue open before the Appellate Court and was being clearly pressed by the landlord for decision. The question whether the tenants defence against eviction was liable to be struck out or not, was an issue open before the Appellate Court and was being clearly pressed by the landlord for decision. The tenant, in order to escape the rigour of his defence against eviction being struck out and to avail the benefit of relief against eviction under sub-section (6), or, to be more accurate, to see such relief as was allowed to him by the Trial Court being upheld by the Appellate Court, shall have to satisfy the Appellate Court also of his compliance with sub-section (4) upto the date of judgment by the Appellate Court". 9. In Shiv Dutt Jadiya supra, the Supreme Court has clearly held that during pendency of the appeal, it is duty of the tenant to deposit the rent and in para 7 of the said judgment, it has been held, as under:- "7. On a suit for eviction being instituted, compliance with sub-section (4) by the tenant as contemplated by Section 13 is in "Court". The legislature has not chosen to use words "Trial Court" in the framing of Section 13. Ordinarily, an appeal is a continuation of suit. The tenant is bound to comply with provisions of sub-section (4) if the claim for eviction on having been denied by the Trial Court is pursued in appeal by the landlord. Inspite of a decree for eviction having been refused by the Trial Court, the Appellate Court may still, in an appeal preferred by the landlord, pass a decree for eviction. On the date of the passing of the decree, the Appellate Court shall have to see, in view of the obligation cast on it by sub-section (6), whether the tenant had made deposit or payment, as required by sub-section (4). Any view to the contrary may result in creating an incongruous or inequitable situation. If it was to be held that on decision by the Trial Court, the obligation of the tenant to pay or tender the rent, in the manner prescribed by sub-section (4) comes to an end then, although the landlord is still pursuing his claim for eviction before the Appellate Court and the decision of appeal may take its own time. If it was to be held that on decision by the Trial Court, the obligation of the tenant to pay or tender the rent, in the manner prescribed by sub-section (4) comes to an end then, although the landlord is still pursuing his claim for eviction before the Appellate Court and the decision of appeal may take its own time. The need on the part of the tenant to pay or tender the rent to the landlord or deposit the same in the court shall stand dispensed with. We do not think that Section 13 contemplates such a situation. The object behind enacting Section 13 is that pendency of litigation should not be used by tenant as an excuse for suspending his obligation to regularly pay the rent and the landlord should not be compelled to file separate proceedings for recovery of rent falling due during the pendency of already filed eviction proceedings". 10. Otherwise also, opening words of Section 13 of the Act of 1950, are as under:- "13(1). Notwithstanding anything contained in any law or contract, no Court shall pass any decree, make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by his Act, unless it is satisfied". 11. Bare reading of the above, clearly shows that protection against eviction is available to the tenant as long as he is ready and willing to pay the rent and once determination has been made by the court u/S.13(4) of the Act of 1950 then, he is liable to pay or deposit the rent in the manner prescribed. Here in the present case, respondent has not deposited or paid to the landlord monthly amount of rent and looking to the law laid down in Shiv Dutt Jadiya supra, application u/S.13(5) of the Act of 1950 is liable to be accepted and it is accepted. Respondent being a second defaulter in payment of rent hence, a decree for eviction is passed.In view of above, the appeal is allowed and the decree of eviction and also for arrears of rent since July, 2006 till vacation of the suit property is passed in favour of the landlord.Appeal Allowed.