Mool Chand vs Gandhi Aashram

Dr. Vineet Kothari, J.—This second appeal filed by the plaintiff-landlord is arising out of the judgment and decree dated 13.08.2008 by the learned Additional District Judge, Sujangarh, District Churu in Civil Appeal Decree No. 22/2007 "Mool Chand Vs. Gandhi Aashram, Sujangarh" who dismissed the appeal filed by the appellant-plaintiff and affirmed the judgment and decree dated 25.01.1994 passed by the learned Civil Judge (Junior Division), Sujangarh in Civil Original Suit No. 19/1989 "Mool Chand Vs. Gandhi Aashram, Sujangarh" by which, the learned Civil Judge (Junior Division) had dismissed the suit filed by the plaintiff-Mool Chand seeking eviction of the defendant and for recovery of the due rent for the period from 01.01.1987 to 31.01.1989 amounting to Rs. 3125/- in relation to the suit shop situated at Station Road, Sujangarh.

The present second appeal has been filed by the appellant, who was the plaintiff before the learned Courts below, against the concurrent rejection of his claim, as aforesaid.

After framing of the relevant issues arising out of the plaint and written statement and after recording of the evidence, the learned Trial Court had dismissed the suit of the plaintiff-Mool Chand on 25.01.1994 on the ground of plaintiff having failed to prove the default in payment of rent. The relevant portions of the discussion and the final order made by the learned Trial Court are quoted herein below for ready reference:-

Being aggrieved by the judgment and decree aforesaid dated 25.01.1994, the plaintiff-Mool Chand filed the first appeal before the First Appellate Court of learned Additional District Judge, Sujangarh, District Churu namely, Appeal Decree No. 22/2007 (28/1994) "Mool Chand Vs. Gandhi Aashram, Sujangarh" which was also dismissed on 13.08.2008, while affirming the impugned judgment and decree dated 25.01.1994 of the learned Trial Court. The relevant portion of the discussion and the final order made by the learned First Appellate Court for affirming the judgment and decree of the learned Trial Court is quoted herein below for ready reference:-

Being aggrieved, the appellant-plaintiff-Mool Chand, now represented by his legal representatives namely Tansukh Rai Rampuria and others, has filed the present second appeal in this Court on 19.11.2008 and the following substantial questions of law were framed by this Court for consideration on 01.04.2015:-

"(1) Whether the Courts below were justified in refusing the eviction decree in view of the purported compliance of Section-19A of the Rent Control Act, 1950 by the tenant by payment of rent?

(2) Whether the Courts below were justified in refusing the eviction decree in view of the judgment of this Court in the case of Bulaki Dass Vs. Ram Swaroop, (2009) 2 RLW 1175 : (2009) 1 WLN 64 following the Hon''ble Supreme Court judgment in the case of Shiv Dutt Jadiya Vs. Ganga Devi, AIR 2002 SC 1163 : (2002) 2 JT 311 : (2002) 2 SCALE 297 : (2002) 3 SCC 189 : (2002) 1 SCR 1167 : (2002) AIRSCW 930 : (2002) 2 Supreme 102 ?"

The learned counsel Mr. N.L. Joshi appearing for the appellant-plaintiff Mool Chand submitted that the learned Courts below have erred in treating the deposit made by the respondent-defendant during the pendency of the appeal against the judgment dated 11.09.1986 as a valid deposit. It is further submitted that the learned Courts have erred in dismissing the suit of the plaintiff despite having noticed the fact that the defendant having failed to produce the money order receipt pertaining to the year 1987-1988. It is also submitted that both the Courts below have erred in exempting the defendant-tenant-Gandhi Aashram from the requirement of Section 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The learned counsel Mr. N.L. Joshi also submitted that the defendant-tenant has not paid any rent to the appellant-plaintiff and by way of application dated 21.10.2003 before the learned Trial Court, it was brought to the notice that the defendant has not paying any rent under Section 19(A) of the Rajasthan Rent Control Act, 2001 but the learned Trial Court has not passed any order upon the application. The learned counsel also submitted that the defendant-tenant has failed to follow the procedure after he was declared first defaulter in the earlier suit filed for eviction, of course, appeal of which was pending when the second suit for eviction was filed, in view of the ''remark of caution'' made by the Hon''ble Supreme Court in the case of Shiv Dutt Jadiya Vs. Ganga Devi, AIR 2002 SC 1163 : (2002) 2 JT 311 : (2002) 2 SCALE 297 : (2002) 3 SCC 189 : (2002) 1 SCR 1167 : (2002) AIRSCW 930 : (2002) 2 Supreme 102 . In the last, it is prayed that in view of the aforesaid submissions, substantial questions of law framed in the present second appeal filed by the appellant-plaintiff deserves to be answered in favour of the plaintiff and a decree of eviction deserves to be granted against the defendant-tenant.

Per contra, the learned counsel Mr. V.K. Bhadu appearing for the defendant-tenant supported the impugned judgments and decree passed by the two Courts below. The learned counsel also submitted that the defendant-tenant has regularly paid or deposited the rent of the suit shop in question and has not committed any default in payment of rent. The learned counsel submitted that no substantial question of law arises for consideration and this appeal of the appellant-appellant deserves to be dismissed. However, he failed to satisfy this Court about any payment of rent paid by the defendant after the year 2003.

Having heard the learned counsels for the parties and upon perusal of the impugned judgments and decrees of the both Courts below, this Court is satisfied that the substantial question of law as framed on 01.04.2015 deserves to be answered in favour of the appellant-plaintiff and this appeal deserves acceptance. In view of Hon''ble Supreme Court decision in the case of Shiv Dutt Jadiya (supra), this Court asked the learned counsel Mr. V.K. Bhadu appearing for the defendant to show any proof that the defendant has tendered the rent or sent the notice asking the bank account number of the plaintiff after he was declared first defaulter in the earlier suit or having deposited the same in the Court during this appeal, as the defendant was required to deposit the rent under Section 19A of the Act, the learned counsel was not in a position to produce any proof to satisfy the Court about such payment of rent.

In the case of Bulaki Dass S/o Asha Ram Purohit (supra), this Court granted eviction decree upon the second default committed by the tenant in payment of monthly rent during the pendency of the appeal. This Court in the aforesaid case of Bulaki Dass Purohit has held as under:-

"18. Having heard the learned counsel at length and having gone through the record of the case and the judgments of two Courts below and the judgments cited at Bar, this Court is of the opinion that the Courts below cannot be said to have erred in any manner in passing the eviction decree against the appellant-tenant on the ground of second default. The deposit in the Court of learned Munsif Magistrate without any procedure known to law at all under Section 19A of the Act or otherwise is of no consequence and cannot enure to the benefit of the defendant-tenant. The said deposit, if any, is no deposit and has been rightly treated as not a valid tender of rent by the defendant-tenant by the Courts below. Admittedly, the first deposit itself for the month of June, 1980 was made by the tenant on 17.7.1980 after the suit proceedings terminated on 11.7.1980 with dismissal of the appeal by the first appellate court. Therefore, on 14.7.1980, no proceedings were pending in the Court and, therefore, deposit of rent for the month of June, 1980 in the learned trial Court was not at all a valid tender. Similarly deposits for the month of July, 1980 and August, 1980 were also without any consequence. The present and second suit came to be filed by the plaintiff on 4.2.1981. Though it was required of the learned trial Court to determine the arrears of rent under Section 13(3) of the Act, since it was a suit on the ground of second default, merely because that is not done, the defendant-tenant cannot take any advantage of that situation. After institution of the suit on 4.2.1981, any deposit under Section 19A of the Act was also not permissible as held by this Court in Swaran Devi V/s Kailash Chandra (supra). The provisions of Section 19A of the act are meant to be resorted to if the landlord illegally refused to accept the rent from the tenant after following the procedure under Clause (a) and (b) both, as has been laid in the case of Bajrang Lal V/s Ramdeo (supra). Nothing of this sort under Clause (b) was followed by the appellant for any of the default months upto January, 1981.

The tenant in order to maintain his tenancy right is allowed to deposit the rent in the Court instead of payment of the same to the landlord only after following the mandatory procedure under Clause (a) and (b) both. In the present case, there is nothing on record to show that the rent at least for the month of June, 1980 to August, 1980 was tendered to the landlord at any point of time, therefore, deposit for these three months cannot be said to be a valid deposit as per provisions of Section 19A of the Act. Similarly, for the month of September, 1980 to November, 1980, the money orders sent by the defendant which were of course refused by the plaintiff landlord for these three months also, there was no deposit of the same by the tenant in the Court under Section 19A of the Act. Thus, for six months from June, 1980 to November, 1980, the second default stood committed by the tenant. The deposit under Section 19A of the Act which came to be made by the defendant - tenant on 10.2.181 for 5 months (September, 1980 to January, 198) was not in accordance with law, after institution of present suit on 4.2.1981 and as procedure both under Clause (a) and (b) was not followed by the tenant and, therefore, the said deposit also does not wash away the second default which already stood committed by the defendant - tenant. Admittedly, the law does not permit any leniency and waiver in the case of second default and eviction decree under Section 13(1)(a) of the Act is bound to be passed on commitment of second default in payment of rent. As already discussed above, the second default for the period of six months from June, 1980 to November, 1980 stood committed by the defendant-tenant on 15th December, 1980 and the eviction decree was bound to be passed and was, therefore, rightly passed by the Courts below.

The judgments cited by the learned counsel for the appellant-defendant do not help the case of the appellant in any manner, and they are distinguishable from the facts of the present case, whereas the judgments relied upon by the learned counsel for the plaintiff-respondent fully support the case of the plaintiff-respondent, particularly decision of the Hon''ble Supreme Court in the case of Kuldeep Singh (supra), decision of this Court in the case of Bajrang Lal (supra) and the decision of this Court in the case of Swaran Devi (supra) also support the case of the plaintiff-respondent.

Consequently, this Court is of the opinion that there is no force in the present second appeal filed by the appellant-defendant and the same deserves to be dismissed and the substantial question of law quoted above deserves to be answered against the defendant-tenant and the decree of eviction deserves to be upheld by this Court. Accordingly, this second appeal is dismissed with costs throughout."

Accordingly, the present second appeal filed by the appellant-plaintiff-Mool Chand now represented by his Legal Representatives is allowed, while giving answers of the aforesaid substantial questions of law in favour of the plaintiff-appellant. The costs of Rs. 5,000/- (Rupees Five Thousand only) is imposed on the defendant-tenant to be paid to the appellant-landlord. A copy of this order be sent to both the Courts below and the parties concerned forthwith.

The respondent-defendant-tenant shall hand over the peaceful and vacant possession of the suit premises to the appellant-plaintiff (landlord) within a period of six months from today, i.e., on or before 31.10.2015 and shall pay mesne profit @ Rs. 3,000/- per month commencing from the month of May, 2015 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondents-plaintiffs till the vacant possession is handed over to the plaintiff-appellant and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-tenant shall also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% per annum. The defendant-tenant shall also 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 bound by this decree. The respondent-defendant 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 shop is not handed over or rent or mesne profits are not paid to the appellant-plaintiff-landlord within a period of six months from today, besides execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court.