J.K. and Company vs Oswal Singh Sabha

Sangeet Lodha, J.

This second appeal is directed against judgment and decree dated 11.2.10 passed by the Additional District Judge (Fast Track) No. 4, Jodhpur in Civil Appeal Decree No. 19/08, whereby the first appeal preferred by the respondent-plaintiff, against the judgment and decree dated 16.2.06, passed by the Additional Civil Judge (S.D.) No. 2, Jodhpur, in Civil Suit No. 323/2000, has been allowed and accordingly, while setting aside the judgment and decree passed by the trial court as aforesaid, the suit for eviction preferred by the respondent-plaintiff, has been decreed. The order dated 16.4.13 passed by the Additional District Judge No. 5, Jodhpur Metropolitan City, dismissing the application preferred by the appellant-defendant, seeking review of judgment and decree dated 11.2.10 passed as aforesaid, is also impugned in the present appeal.

The brief facts giving rise to the present appeal are summarised thus:

(i) The plaintiff, a society registered under the Rajasthan Societies Registration Act, 1958, filed a suit for eviction and recovery of rent, against the defendant on 15.9.97 before the Additional Civil Judge (S.D.) No. 2, Jodhpur, which was later transferred to the court of Additional Civil Judge (S.D.) No. 3, Jodhpur. The premises in question, a shop, was let out by the plaintiff to the defendant''s father-Hansraj. The premises was in possession of the Receiver and therefore, after the death of his father, the defendant continued to pay the rent to the Receiver. It was averred that vide order dated 31.10.96 passed by the court concerned, the services of the Receiver were brought to an end and the property was handed over to the plaintiff. According to the plaintiff, the defendant paid the rent upto the month of September, 1993 to the Receiver, but the rent due thereafter, was neither paid nor tendered to the Receiver or the plaintiff. That apart, the plaintiff averred that the premises is not being used by the defendant for a period of one and half years. Thus, the decree of eviction from the premises in question was sought against the defendant on the grounds; the default in payment of rent and non user of premises for a continuous period of more than six months immediately preceding the date of the suit, in terms of provisions of Section 13(1)(a) and 13(1) (j) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short "the Act of 1950").

(ii) The suit was contested by the defendant by filing a written statement thereto, taking the stand that the rent of the premises was being paid to the Tehsildar, the Receiver, who used to collect the rent and issue the receipts according to his convenience. According to the defendant, the rent of the premises was paid upto the month of March, 1996, however, the receipts were not issued by the Receiver. It was averred that the information regarding the services of the Receiver being brought to an end was never given to the defendant and therefore, he had no occasion to tender the rent to the defendant. Denying the allegation of non user of the premises, the defendant took the stand that the premises was being used as godown. That apart, an objection was taken by the defendant in terms that in absence of the legal heirs of late Shri Hansraj being impleaded as party defendants, the suit preferred is not maintainable.

On the basis of the pleadings of the parties, the trial court framed the issues and parties led their evidence. After due consideration of the evidence on record and the rival submissions, the trial court vide judgment dated 16.2.06 decided the issue No. 1 regarding default in payment of rent in favour of the plaintiff and against the defendant. The issue No. 2 regarding non user of the premises for a period of six months preceding the date of the suit was decided in favour of the defendant and against the plaintiff. All other issues framed were decided against the defendant and in favour of the plaintiff. However, notwithstanding the issue No. 1 being decided in favour of the plaintiff, the suit seeking decree of eviction was dismissed by the trial court extending the benefit of first default in terms of the provisions of Section 13(6) of the Act of 1950 to the defendant.

Aggrieved by the judgment and decree passed by the trial court as aforesaid, the plaintiff preferred an appeal before the District Judge, Jodhpur, which was later transferred to the court of Additional District Judge (Fast Track) No. 4, Jodhpur.

During the pendency of the appeal, the plaintiff preferred an application under Section 13(5) of the Act of 1950 stating that during the pendency of the appeal, the defendant has neither paid nor tendered the amount of rent due from him to the plaintiff and the same has not been deposited in the court either and therefore, he is not entitled to the benefits of Section 13(6) of the Act of 1950. The application was contested by the defendant by filing a reply thereto, taking the stand that the rent upto the month of September, 2009 has been regularly deposited. The plaintiff while filing the rejoinder to the reply, categorically stated that the rent due for the year 2006 has not been deposited.

After due consideration of the rival submissions, the appellate court observed that the proceedings in appeal is in continuity of the suit and therefore, the defendant was under an obligation to deposit the rent determined provisionally during the pendency of the appeal. The court held that the defendant is neither entitled for condonation of delay in depositing the rent nor for extension of time to deposit the rent due. Accordingly, the court arrived at a categorical finding that the defendant having failed to deposit the rent for the year 2006, his defence against the eviction deserves to be struck off by virtue of provisions of Section 13(4), (5) and (6) of the Act of 1950. The appellate court after due appreciation of evidence on record, decided the issue No. 2 regarding non user of the premises also in favour of the plaintiff and against the defendant. Accordingly, the suit for eviction preferred by the plaintiff stands decreed by the appellate court.

The appellant herein, filed an application under Section 114 read with Order XXXXVII Rule 1 CPC seeking review of the judgment and decree passed by the appellate court as aforesaid. The review application has been dismissed by the appellate court vide order dated 16.4.13. Hence, this second appeal.

The appellant has preferred an application under Order XXXXI Rule 27 CPC before this court, for taking the certified copy of the judgment dated 4.12.06 passed by this court in S.B.C. First Appeal No. 52/97 "Mahendra Singh and Ors. vs. Ghewar Chand and Ors." as also a copy of the Writ Petition No. 1980/13 preferred by one Shri Virendra Kawatra inter alia against the respondent herein, on record. According to the appellant in the year 1978, Ghewar Chand and 20 others filed a suit for declaration, possession and injunction in the representative capacity on behalf of Oswal Singh Sabha, the respondent herein, against the defendant Mahendra Singh and others bearing Civil Original Suit No. 135/95 (146/78) in the court of Additional District Judge No. 3, Jodhpur wherein, Ghewar Chand and others set out the case that the suit property was bequeathed by one Shri Girdhari Singh, original owner of the property to Oswal Singh Sabha and was in their use, occupation and possession and they have inducted various tenants in different apartments and raised construction but the defendants therein Mahendra Singh and others have started interfering with the suit property putting forward claim of one Kishan Singh, father in law of Gaj Singh, the defendant No. 1 in the said suit, as an adopted son of original owner of the property namely Girdhari Singh. The suit preferred as aforesaid was decreed by the trial court vide judgment and decree dated 30.10.96, however, a first appeal filed by Mahendra Singh and others against the said judgment and decree, being S.B.C. First Appeal No. 52/97 was allowed by this court vide judgment and decree dated 4.12.06 and the suit was dismissed as barred by limitation. Similarly, it is submitted that Oswal Singh Sabha, the plaintiff herein, had filed yet another suit against Mahendra Singh and three others, wherein the appeal is pending before the court of Additional District Judge No. 5, Jodhpur Metropolitan City. It is submitted that against the order passed by the appellate court staying the execution of the decree passed by the trial court on the condition of payment of Rs. 5,000/- per month as mesne profit by the appellant therein, a writ petition preferred by Virendra Kawatra is pending consideration before this court. According to the appellant, the said documents are necessary to be taken on record for just decision of this case.

Learned counsel appearing for the appellant while not pressing the grounds raised assailing the findings of the first appellate court on issue No. 1 and 2 framed by the trial court, contended that in view of the judgment of this court dated 4.12.06 passed in S.B.C. First Appeal No. 52/97, the respondent herein, cannot be considered to be owner of the premises in question and therefore, it is not entitled for decree of eviction against the appellant. Learned counsel submitted that the question with regard to the respondent''s ownership over the premises in question, goes to the root of the matter and therefore, the application preferred on behalf of the appellant under Order XXXXI Rule 27 CPC deserves to be allowed and while taking the documents annexed thereto on record, the appeal deserves to be admitted on the substantial question of law arising in the matter. Learned counsel submitted that the respondent being not the owner of the property, the suit for eviction preferred by it, must fail.

On the other hand, the counsel appearing for the respondent submitted that unless the appeal preferred is admitted by this court on the substantial question of law involved, the question of entertaining the application preferred by the appellant under Order XXXXI Rule 27 read with Section 151 CPC does not arise. Learned counsel submitted that since the grounds raised in the appeal questioning the findings on issue No. 1 and 2 are not pressed by the appellant, the appeal preferred deserves to be dismissed. Learned counsel submitted that even otherwise, the landlord and tenant relationship between the parties is not in dispute and therefore, the appellant which is admittedly the tenant of the respondent, cannot be permitted to contend that the respondent is not entitled for decree of eviction inasmuch as, the suit preferred by it for possession against Mahendra Singh and others, stands dismissed by this court. Learned counsel submitted that as a matter of fact, the special leave petition preferred by Ghewar Chand and others, before the Hon''ble Supreme Court against the judgment and decree dated 4.12.06 passed by this court is pending consideration and therefore, nothing turns on the question that the suit preferred by Ghewar Chand and others as representatives of Oswal Singh Sabha against Mahendra Singh and others for possession of the property, stands dismissed.

I have considered the rival submissions of the learned counsel for the parties and perused the material on record.

Indisputably, a contract of tenancy between the landlord and tenant must exists before the landlord can file a suit for eviction against the tenant under the provisions of the Act of 1950. The words "landlord" and "tenant" stand defined under Section 3(iii) and 3(vii) of the Act of 1950 respectively. In order to appreciate the question raised, it will be appropriate to reproduce the provisions of Section 3(iii) and 3(vii) of the Act of 1950, which read as under:

"(iii) "landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant.

(vii) "tenant" means-

(a) the person by whom or on whose account or behalf rent, is or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its posse after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and

(b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leaded out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death."

A bare perusal of the definition of "landlord" quoted hereinabove makes it abundantly clear that the ownership of the premises is not the essential characteristic of a landlord, rather, it is the receipt of the rent or the entitlement to receive the rent. The definition of "landlord" as set out u/s 3(iii) is very wide and it includes in itself even the persons who are not actual landlords in common parlance. Thus, for the determination of the question of landlord and tenant relationship in a suit for eviction under the provisions of the Act of 1950, the question of title or ownership of the premises is not required to be gone into, but, the questions with regard to the landlord and tenant relationship, their rights and liabilities arising in the matter have to be determined.

In the instant case, the relationship of the landlord and tenant between the parties is not in dispute. As a matter of fact, the appellant, who is occupying the premises as tenant of the respondent, has no right to question its title over the premises in question in a suit for eviction and the court is not required to determine the question of title or ownership over the disputed premises. Therefore, the documents sought to be produced by the appellant by way of application under Order XXXXI Rule 27 CPC so as to question the ownership of the landlord over the premises in question, are not germane to the dispute adjudicated by the courts below, in any manner whatsoever. Accordingly, the application preferred by the appellant under Order XXXXI Rule 27 CPC deserves to be dismissed.

No other point has been pressed by the counsel for the appellant.

In view of the discussion above, no substantial question of law arises for consideration of this court in this second appeal.

In the result, the second appeal fails, it is hereby dismissed. No order as to costs.