Rajeev vs Bhanwar Singh

Dr. Vineet Kothari, J.—This second appeal filed by the plaintiff-appellant/landlord is arising out of the judgment and decree dated 27.05.1992 passed by the first appellate court of learned Civil Judge, Banswara in Civil Appeal No. 07/1991 "Bhanwar Singh Vs. Rajeev" reversing the judgment and eviction decree dated 28.01.1991 passed by the Munsiff & Judicial Magistrate, First Class, Banswara in Civil Suit No. 83/1986-Shri Rajeev Vs. Shri Bhanwarsingh, decreeing the suit for eviction filed by the plaintiff-appellant/landlord in respect of the suit shop in question situated at Mahatma Gandhi Chikitsalaya, Bansawa City on the grounds of default in payment of rent and material alterations in the shop without the consent of the landlord.

The relevant findings of the learned courts below are quoted below for ready reference:-

"order dated 28.01.1991 of the learned trial court:-

order dated 27.05.1992 of the learned appellate court:-

The learned counsel for the plaintiff-appellant/landlord, Mr. Manish Shishodia submits that the learned appellate court has erred in law in holding that so far as alterations effected by the defendant by way of lowering the floor of the suit premises by about 2 & 1/2 feet, raising a platform outside and inside the premises to run Paan Shop therein and reducing the height of the door/shutter to five feet, which was earlier six feet are concerned they do constitute material alteration in the suit premises. All these alterations have been effected by the defendant-tenant in the suit premises without the permission of the plaintiff and they necessarily change the form of the accommodation and constitute material alterations as rightly held by the learned trial court. The finding of the learned trial court was wholly based on the relevant material available on record and the evidence of the parties. He therefore, submits that the learned appellate court has erred in law in reversing the finding of the learned trial court on the issue, as the said alterations in the suit shop in question have been admittedly effected by the defendant. They have substantially changed the form and are in the nature of permanent construction and as such the learned appellate court erred in law in holding that the alterations are not material alterations, but are of temporary nature. The construction has resulted in permanent changes in the suit premises in question affecting the form and structure of the building and the same cannot be easily removed. Therefore, under these circumstances, the construction and/or alteration came within the expressing ''material alteration'' as rightly held by the learned trial court. About default in payment of rent, Mr. Manish Shishodia submitted that no rent whatsoever has been paid by the tenant ever since the filing of suit and hence, multiple defaults have taken place. He relied upon the judgments of this Court in the cases of Ranchod Mal and Another Vs. Govind Prasad and Others, and Prakash Chand and Others Vs. Firm Pohap Singh Kishan Sahai and Others, .

On the other hand, the learned counsels Mr. Aript Bhoot and Ms. Arpita Bhoot appearing for the defendant-respondent/tenant have supported the impugned order passed by the learned appellate court, reversing the judgment and decree passed by the learned trial court decreeing the suit for eviction in favour of the plaintiff-appellant/landlord. In support of his submissions, Mr. Arpit Bhoot relied on the decision of this Court in the case of Shyamlal Vs. Ramdeo Kolyawat (S.B. Civil Second Appeal No. 102/1998-decided on 22.09.2015)

Having heard the learned counsels for the parties and having perused the judgments and decree of both the courts below, the present second appeal filed by the plaintiff-appellant/landlord deserves to be allowed.

This Court in the case of Prakash Chand and Others Vs. Firm Pohap Singh Kishan Sahai and Others, held as under:-

"Thus, it is clear that notwithstanding the failure on the part of landlord to apply to court for striking out the defence of tenant, the tenant is not absolved either from its obligation to regularly deposit and pay the rent under Sub-section (4) but also to establish before the court that he has done so, if he intends to take advantage of no decree of eviction on the ground of first default under Section 13(6) of the Act. The proviso to Sub-section (6) denies the benefit of no decree for eviction in the ground of default if such default is committed for the second time. In the present case, the tenant does not appear to have brought anything before the courts below nor even before this Court that he has regularly and punctually paid the rent in accordance with Sub-section (4) of Section 14 of the Act, he has chosen to merely harp upon the findings of the two courts below that there was no default on the part of the tenant which findings do not appear to be based on any material on record. Despite the contention of the learned Counsel for landlord raised in this Curt also that the tenant has defaulted in payment of rent as agreed and as determined by the court on 13.9.1976, learned Counsel for tenant instead of taking this opportunity to place on the record of this Court the evidence showing upto date and regular payment of rent by the tenant, chose to object to even raising of this contention by the learned Counsel of the landlord. This with respects, cannot be said to be enough and justified and therefore, the findings of the two courts below which are laconic and not based on material before it that there was no default on the part of the tenant cannot be sustained, more so, as the said findings have been given on the basis of landlord not filing application for striking out the defence of tenant rather than based on any proof of such regular payment/deposit of rent by the tenant. In the absence of tenant having shown in any manner before the two courts below and even before this Court that he has regularly and punctually complied with the mandatory provisions of Section 13(4) of the Act and made deposit of the rent in accordance with Section 13(4) of the Act, the decree of eviction on the ground of even default deserves to be given in favour of the landlord. The tenant cannot be allowed to take advantage of the inaction on the part of landlord of not filing any application for striking out the defence of the defendant which so happened in the present case and it would be putting premium on default of tenant by allowing him to take advantage of his own default. The said issue No. 4 is, therefore, accordingly decided in favour of the appellant-landlord and against the tenant."

Similarly, in the case of Ranchod Mal and Another Vs. Govind Prasad and Others, , this Court reiterated the said legal position in the following terms:-

"18. Thus, the conduct of the defendant-tenant is very clear and consistently defaults actually every month stood committed by him and he has put up a stubborn and brazen face before the Court every time that the Courts determine the rent and arrears and he deposits the arrears of rent, as if payment of monthly rent by him under the rent note agreement was not an obligation upon him. Actually, multiple defaults stood committed and not only second default and, therefore, there was no escape but to pass an eviction decree against the defendants-tenants in the present suit No. 44/95.

The protection and the benefit or the leniency granted to the tenant under Sec. 13(6) of the Act is only for the first and bona fide lapse on his part and that benefit is also given upon deposit or payment of arrears of rent by him, but here the defendant tenant seems to be in habit of nonpayment the rent to the landlord, though it was as minimal as Rs. 55/- per month and this case is a clearly bad example of undue advantage taken by the tenant of the protection of law given to tenant, subject to conditions which have to be strictly complied with and essentially fulfilled. Such protection is not available to such tenants, who are in the habits of committing defaults in payment of monthly rent to the landlord and then taking up the technical pleas like in the present case that the Court did not give any benefit of Sec. 13(6) at the time of deciding the previous suit No. 708/77 on 18.11.77 or 18.08.1990 while disposing of the suit and, therefore, the second default for the period 19.10.90 to 2.3.95 is not actually the "second default", but becomes the first default. Such a blatant and frivolous plea cannot be and should not have been entertained by the Courts below, but unfortunately it has not been entertained by the Courts below, but the long drawn legal battle up to High Court has just given the undue advantage to the defendant tenant in the present case."

On the other hand, the judgment in the case of Shyamlal (supra) relied upon by Mr. Arpit Bhoot, learned counsel appearing for the defendant-respondent/tenant is of little help to the defendant-respondent/tenant, as the facts of the present case are clearly distinguishable and the nature of material alterations here are different.

This Court is satisfied that the first appellate court has erred in reversing the well reasoned findings of the learned trial court on the issue of material alterations. The nature of alterations in the shop carried out by the defendant-tenant to carry on business of Paan Shop, namely, raising platform, digging the floor of the shop etc., are definitely material alterations, which have changed the structure of the shop itself and such shop cannot be used for any other purpose and since the same was admittedly done without the consent of the landlord, the mischief is clearly covered by Section 13(1)(c) of the Act. Moreover, the decree of eviction also deserves to be upheld on the ground of multiple defaults in payment of rent, since no rent was paid by the defendant-tenant to the landlord for such a long period ever since the filing of suit or at least after the decree of eviction was passed against the defendant-tenant, even by now, and therefore, in view of the aforesaid judgments of this Court, the eviction decree deserves to be upheld on default in payment of rent as well as material alterations without the consent of the landlord.

Accordingly, the present second appeal filed by the plaintiff-appellant/landlord is allowed and setting aside the judgment and decree passed by the learned appellate court dated 27.05.1992, reversing the judgment and decree passed by the learned trial court dated 28.01.1991, it is directed that the defendant-respondent/tenant shall hand over the peaceful and vacant possession of the suit shop to the plaintiff-appellant/landlord within a period of one year i.e. on or before 30.09.2016 and shall pay mesne profit @ Rs. 2,000/- per month (Rupees Two Thousand only) commencing from the month of November, 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 plaintiff-appellant/landlord also and in case there is any default in payment of mesne profit, the period of One Year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant-respondent/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the appellant/plaintiff-landlord within three months from today, otherwise the same will bear interest @ 9% per annum. The defendant/respondent-tenant 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 defendant-respondent/tenant 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 appellant-plaintiff/landlord within a period of One Year from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff/landlord shall also be entitled to invoke the contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.