Durga Devi and Others vs Mahant Prahladdas Chela Mahant Shri Yuktiram, Kabeerpanthi Sadoo and Others

Dr. Vineet Kothari, J.—The defendant-tenants, legal representatives of late Shri Kishan Singh - original tenant, have filed the present second appeal under Section 100 CPC on 15/10/1999 being aggrieved by the concurrent decree of eviction by the two courts below in respect of suit premises, a small house situated near Geeta Bhawan, Jodhpur on the grounds of sub-letting by the tenant in favour of defendant No. 10 - Narpat Singh and the tenant acquiring an alternative accommodation for them known as ''Dabi House''. The ground of default in payment of rent was also raised but on account of payment of rent after determination of provisional rent under Section 13(3) of the Rent Control Act, 1950, the said ground does not exist any further for the purpose of this appeal.

The relevant findings of the learned trial court on the aforesaid issues are quoted below for ready reference:-

The first appeal filed by the tenants also came to be dismissed by the learned first appellate court of Addl. District and Sessions, No. 2, Jodhpur on 17/8/1999 in Civil Appeal No. 2/97 affirmed the findings of the learned trial court in the following manner:-

While admitting the present second appeal, the coordinate bench of this Court framed the following substantial questions of law for consideration of this Court:

"Date of order:15.1.2002.

Hon''ble Mr. N.P. Gupta, J.

Mr. M.C. Bhoot, for the appellant.

Mr. J.R. Patel, for the respondent No. 1.

Heard learned counsel for the parties and perused the record.

The present appeal involves following substantial questions of law:-

(i) Whether the learned lower appellate court has erred in not adjudicating upon the contention raised on the side of the appellant assailing the interlocutory orders of the learned trial court?

(ii) Whether the learned lower appellate court has gone wrong in deciding the appeal without deciding application under Order 41 Rule 27 CPC?

(iii) Whether in the totality of the circumstances, the appellants have been denied reasonable sufficient opportunity of leading evidence despite the defendant/witnesses being present in the court, on the basis of mis-conception?

(iv) Whether since Gopal Singh is not impleaded as defendant, and without any order having been obtained by the plaintiff seeking to implead defendant No. 4 Prahalad Singh by his alias name Gopal Singh, the decree is bad, inasmuch as, the summons are said to have been served by publication in local news paper and before such publication, neither such impleadment was got made nor any summons were sent with this alias description?

(v) Whether in view of the aforesaid illegalities of procedure, the impugned judgment and decrees are bad?

So far as the other substantial questions of law as also framed, arise or not, will be considered at the time of hearing of the appeal.

Admit. Issue notice.

Mr. Patel appears for the respondent No. 1. Issue notice to the other respondents.

Issue notice of the stay application to the other respondents.

Meanwhile, execution of the impugned decree shall remain stayed.

Sd/- (N.P. Gupta), J."

Mr. M.C. Bhoot, Sr. Advocate appearing for the defendant-tenants argued that the impugned eviction decree by the two courts below, though concurrent, deserves to be set aside and the present second appeal deserves to be allowed, since the defendant No. 1 - Durga Devi widow of original tenant - Kishan Singh, though produced before the trial court on 25/11/95, was not examined by the trial court and also the amendment sought in the written statement was rejected by the learned trial court on 6/1/1995, by which the defendant-tenants wanted to place on record the subsequent facts that a separate residential house constructed by one of the sons of the original-tenant-Kishan Singh was his own house and not a house for the family of Kishan Singh and, therefore, the defendant-tenants were not allowed to defend their case properly and there is also misreading of evidence by the courts below and, therefore, the aforesaid substantial questions of law deserve to be answered in favour of the defendant-tenants and the matter deserves to be sent back for trial afresh. He also submitted that the application under Order 41 Rule 27 CPC was also filed before the learned first appellate court but even that was not decided by the learned first appellate court and, thus, additional substantial questions of law are required to be framed and eviction decree deserves to be set aside on this ground.

Learned counsel Mr. M.C. Bhoot, Sr. Advocate also brought to the notice of this Court that the written statement was signed by Promod Kumar, though in the verification part name of Om Singh was written. Mr. M.C. Bhoot, Sr. Advocate also urged that sub-tenant-Narpat Singh was only served only through substituted service under Order 5 Rule 20 CPC, whereas, if according to the plaintiffs, sub-tenant-Narpat Singh was living in the demised premises only, there was no reason why he could not be served by the plaintiffs through ordinary process.

Mr. M.C. Bhoot, Sr. Advocate also submitted that the second written statement was filed by the legal representatives of Kishan Singh, namely; Smt. Durga Devi and her sons, Devi Singh and Narendra Singh etc. on 30/7/1990. The original tenant - Kishan Singh died in the year 1981 and the present suit was filed on 13/11/1987. Learned counsel for the appellants, Mr. M.C. Bhoot, therefore, submitted that the present second appeal of the defendants deserves to be allowed and the substantial questions of law framed above deserve to be answered in favour of the defendants.

Per contra, Mr. Ashok Patel, learned counsel appearing for the plaintiff-respondents urged that in fact no substantial questions of law arise in the present case and the second appeal of the defendant-tenants deserves to be dismissed. Mr. Ashok Patel submitted that the defendant-tenants have tried their best to delay the trial to the maximum possible and even though alternative accommodation known as ''Dabi Bhawan'' in Kamla Nehru Nagar, Jodhpur was constructed by them and service of summons on the legal representatives of Kishan Singh was affected by the process server at that address only and in the suit house the sub-tenant-Narpat Singh was only found to be in possession, as stated by various witnesses produced by the plaintiffs, therefore, there is no good reason to upset the findings of sub-letting and alternative accommodation acquired by the tenants and eviction decree deserves to be upheld by this Court.

He relied on the following judgments in support of his various contentions.

(i) Puskar Sharma and Others Vs. Smt. Sudha Mishra, . In this case, the learned Single Judge of Madhya Pradesh High Court held that once it is found that the tenant built, acquired vacant possession or has been allotted an accommodation suitable for his residence then the law mandates that he must vacate the premises belonging to the landlord. If the tenant leaves behind him number of successors then it is not for the landlord to prove before the Court that each of the successors has built, acquired or has been allotted some accommodation and it is sufficient to prove that the original tenant or the successors have acquired some premises.

(ii) Mr. Ashok Patel also relied on the judgment of this court in the case of Dr. Ram Chandra Saxena vs. Chail Behari Lala - 1976 WLN (UC) 620 in which the learned Single Judge of this Court held that where the concurrent finding of fact regarding acquiring of suitable accommodation is there, such findings cannot be challenged by the tenant in second appeal.

(iii) In Mrs. Radhabai Dolatrai Dave and others Vs. Mrs. Padma Kilawala and others, and Full Bench Rent Cases 237, the Hon''ble Supreme Court held that where one of the members of the family of tenant has acquired another house, the eviction of the tenant was rightly given by the courts below under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. (iv) Mr. Ashok Patel, learned counsel for the respondent-plaintiffs also relied upon a judgment of this Court in the case of Sushila Devi (Smt.) and Others Vs. Mahavir Kumar Sanghi, , wherein, this Court has held that against the concurrent finding of two courts below, the second appeal under Section 100 CPC cannot be allowed to become the third trial on facts and second appeal would lie only on the substantial questions of law.

Thus, Mr. Ashok Patel submitted that on the basis of aforesaid settled legal position, though no substantial question of law arises in the present case, if at all the aforesaid substantial questions of law do arise, the same are required to be answered in favour of the plaintiffs and the eviction decree deserves to be upheld.

I have heard the learned counsels and perused the record of the case and the judgments cited at the bar.

This Court finds no ground to upset the eviction decree, concurrently given by the two courts below on both the grounds, namely, sub-letting and parting with the possession by original tenant and his LRs in favour of defendant No. 10 - Narpat Singh and the alternative accommodation acquired by the family of the original tenant - Kishan Singh. Though re-appreciation of evidence is not permitted under Section 100 CPC in the limited scope of second appeal, still this Court perused the evidence brought on record by the parties and in the considered opinion of this Court, the courts below have rightly and justly held that the defendant-tenants have acquired the alternative accommodation in the form of residential house known as ''Dabi Bhawan'' situated at Kamla Nehru Nagar, Jodhpur and in fact the whole family shifted from the suit premises to that place and their summons even served at that address only and only the sub-tenant Narpat Singh was found to be living in the suit house. The proceedings of the case amply show that the defendant-tenants have delayed the trial by adopting all possible methods and the amendment was sought in the written statement and the additional documents were sought to be produced at a later stage, though having failed upto the High Court in that effort, it clearly show that the defendant-tenants somehow wanted to retain the possession of the suit house in question even through the sub-tenant - defendant No. 10, Narpat Singh and parting with the possession of the suit house without the consent of the landlord was thus, amply proved by the plaintiff and findings of fact in this regard are based on record and cogent evidence in the present case.

The lame defence raised on which the aforesaid questions of law were framed, which in the opinion of this court are not really the substantial questions of law to the effect that the defendants were not allowed to defend in the trial court properly is also found to be devoid of merit. The original tenant-defendants since were duly examined and cross examined before the trial court and it does not matter if the wife of the original tenant Smt. Durga Devi was not examined and cross examined by the plaintiffs. There was ample evidence on record even otherwise about the sub-letting and alternative accommodation becoming available to the defendants. The eviction decree granted by the two courts below after a prolonged litigation, after the suit filed in the year 1987, does not call for any tinkering at this stage, therefore, the substantial questions of law as framed above are required to be answered in favour of the plaintiffs and against the defendants and the present second appeal of the defendants deserves to be dismissed and same is accordingly dismissed with costs, which are quantified at Rs. 5000/- to be paid by the defendant-tenants to the plaintiff within three months from today.

The appellant-defendant-tenants including the sub-tenant shall hand over the peaceful and vacant possession of the suit premises to the respondent-plaintiffs within a period of nine months from today i.e. on or before 31st December, 2015 and shall pay mesne profit @ Rs. 1,000/- per month from May, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff and in case there is any default in payment of mesne profit, the period of nine months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-defendant-tenants shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant-tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void and such third party will also be bound by this decree. The appellant-defendant-tenants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of nine months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and all the parties concerned forthwith.