Kishanlal Shankar Lal and Others vs Kushal Devi and Others

Dr. Vineet Kothari, J.—The present second appeal has been preferred by the appellants/defendants/tenants against the concurrent judgment and decree of eviction dated 17.09.2014 passed by learned Additional District Judge No. 1, Bhilwara, in Civil First Appeal No. 9/2014-M/s. Kishanlal Shankar Lal and Ors. Vs. Smt. Kushal Devi and Ors., whereby the appeal filed by the appellants/tenants was dismissed while affirming the judgment and eviction decree dated 23.04.2014 of the learned Civil Judge (Sr. Division) Gangapur, District: Bhilwara, decreeing plaintiffs'' suit for eviction being Suit No. 50/2007-Smt. Kushal Devi and Ors. Vs. M/s. Kishan Lal Shankar Lal and Ors. Both the two courts below have granted eviction decree in favour of plaintiffs as the tenancy was terminated by the plaintiffs/landlord by serving valid notice under Section 106 of the Transfer of Property Act, 1882.

The relevant findings of the learned trial court are as under:-

The first appeal filed by the appellants/defendants against the judgment and decree of the trial court was dismissed by the learned Additional District Judge No. 1, Bhilwara vide judgment dated 17.09.2014 in the following manner:-

Mr. S.D. Vyas, learned counsel for the appellants/defendants submitted that since the Issue No. 2 about there being no default on the part of the defendants in payment of arrears of rent was decided in favour of defendants, therefore, Section 114 of the Transfer of Property Act, 1882, was attracted and the eviction decree could not be given upon forfeiture of the alleged arrears in payment of rent as the lease subsisted. He relied upon the decision of Hon''ble the Supreme Court in the case of Praduman Kumar Vs. Virendra Goyal (Dead) by L. Rs., , in which the Hon''ble Apex Court in para 7 has held as under:-

"In terms, Section 114 makes payment of rent at the hearing of the suit in ejectment a condition of the exercise of the Court''s jurisdiction but an appeal being a rehearing of the suit, in appropriate cases it is open to the appellate court at the hearing of the appeal to relieve the tenant in default against forfeiture. Passing of a decree in ejectment against the tenant by the court of First Instance does not take away the jurisdiction of the appellate Court to grant equitable relief." 5. On the other hand, Mr. Darshan Jain, learned counsel for the respondents/plaintiffs relied upon the decision of this Court in the case of Nirmala Devi (Smt.) and Others Vs. Smt. Tulsi Devi, , in which this Court held that upon termination of lease/tenancy by proper service of notice under Section 106 of the Transfer of Property Act, the status of the defendant converts into that of a trespasser and encroachee and occupation in the suit premises cannot be said to be valid under the lease agreement in question and therefore, irrespective of deciding of Issues No. 1, 2 and 3 in favour of defendants-appellants, the decree of eviction was upheld by this Court. The relevant para 14 of the said judgment is quoted herein below:

"14. Upon termination of the lease/tenancy by proper service of notice under Section 106 of the T.P. Act, status of the lessee/tenant converts into that of a trespasser and encroachee and occupation in the suit premises cannot be said to be valid under the lease agreement in question. Therefore, irrespective of deciding of Issues No. 1, 2 and 3 in favour of defendants-appellants and against the plaintiff-landlady and that the plaintiff failed to establish that monthly rent was Rs. 2300/- per month but it was only Rs. 1800/- per month, does not invalidate the eviction decree based on the Notice to Quit Ex. 3 dated 01.08.2003. For the same reason, the other contention raised by the learned counsel for the appellants-defendants that annual rent being less than Rs. 25,000/-, it would deprive the learned District Judge to try the said eviction suit, is liable to be rejected. The suit was filed as per the claim of the plaintiff above Rs. 25,000/-, which in the absence of the same being proved, has been decided in favour of defendants that the rent as per rent-note would come to Rs. 1800/- per month only but that does not take away the jurisdiction of the learned trial court of A.D.J. and this contention of the learned counsel for the appellants-defendants-tenants is also liable to be rejected and the same is accordingly rejected. The contentions that the plaintiff herself did not appear in the witness box and her only and power of attorney holder, namely, Vijay Kular was examined and, therefore, eviction is not justified is also equally devoid of merits in view of validity of the Notice to terminate the lease/tenancy having been upheld, this contention is of no consequence. Hence, the same is also rejected." 6. Having heard the learned counsel for the parties and having perused the judgments and decree of both the courts below, this Court is of the opinion that no substantial questions of law arises in the present second appeal of the defendant/tenant. The reliance on the relevant provisions of Section 114 of the T.P. Act and the judgment cited at bar by the learned counsel for the appellants/defendants is misplaced because even if the issue of forfeiture of arrears of rent has been decided in favour of appellants/tenant, the trial court has granted the decree of eviction after expiry of period of tenancy, has been upheld upon service of notice under Section 106 of the T.P. Act as held in the case of Nirmala Devi (Smt.) (supra) and once the Issue No. 1 regarding valid service of notice is decided concurrently by the two courts below in favour of respondents/plaintiffs, Section 114 of the T.P. Act cannot be invoked to upset the eviction decree, which has been granted for all other issues decided in favour of respondents/plaintiffs.

Since, the question of validity of the notice terminating the lease has already been decided in favour of plaintiff-respondent by trial court and said findings have been upheld by first appellate as well as this Court for the aforesaid reasons, the eviction decree passed by the learned court below deserves to be upheld and the present first appeal filed by the defendants-appellants is liable to be dismissed. The same is accordingly dismissed. No costs.

The appellants/defendants/tenant shall hand over the peaceful and vacant possession of the suit premises to the respondents-plaintiffs within a period of three months from today i.e. on or before 30.04.2015 and shall pay mesne profit @ Rs. 2000/- per month commencing from March, 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 respondents/plaintiffs also and in case there is any default in payment of mesne profit, the period of three months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellants/defendants/tenants shall also clear all the arrears of rent and mesne profit and pay the same to the respondents/plaintiffs within three months from today, otherwise the same will bear interest @ 9% per annum. The appellants/tenants shall also not sub-let, assign or part with the possession of the suit shop 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 if it is so done, the same would be treated as void. The appellants-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-plaintiff within a period of three months from today i.e. on or before 30.04.2015 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs 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 both the parties forthwith.