Tulsiram vs Mohan Lal Dashora

Arun Bhansali, J.—This second appeal u/s 100 CPC is directed against the judgment and decree dated 28.8.2012 passed by Additional District Judge No. 1, Udaipur, whereby the judgment and decree dated 23.4.2007 passed by Civil Judge (Jr. Div.), City North, Udaipur has been upheld.

The facts, in brief, may be noticed thus: the respondent-plaintiff filed a suit for eviction inter-alia on the grounds of default in payment of rent, non-user of the premises, nuisance and reasonable and bonafide necessity of the suit premises.

The respondent filed written statement and denied the allegations made in the plaint.

The trial court framed eight issues and after evidence was led by the parties, it came to the conclusion that the appellant has committed default in payment of rent, after determination of rent by the trial court u/s 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (''the Act''), the rent was deposited with delay and therefore, the defence was liable to be struck off and the plaintiff was not entitled to benefit of first default u/s 13(6) of the Act; the suit premises was not being used by the defendant for more than six months; the suit property was required by the plaintiff reasonably and bonafidely; the plaintiff would suffer comparatively more hardship in the case the suit premises were not vacated; the defendant has committed nuisance; the defendant was not entitled to get the standard rent fixed at Rs. 60/- per month, partial eviction from the suit property was not possible and consequently, decreed the suit.

Feeling aggrieved the appellant filed first appeal u/s 96 CPC. The appellate court after hearing the parties upheld the findings regarding default in payment of rent, non-user, bonafide necessity, nuisance and standard rent and consequently, dismissed the appeal.

Learned counsel for the appellant submitted that the judgments and decrees passed by both the courts below are based on conjecture and surmises and the same are contrary to the material available on record. The plaintiff has utterly failed to prove any of the grounds seeking eviction of the appellant from the suit premises and therefore, the judgments and decrees passed by the courts below cannot be sustained.

I have considered the submissions made by learned counsel for the appellant and have perused the judgments passed by both the courts below alongwith the record of the courts below.

The very fact that the appellant had filed application u/s 5 of the Limitation Act before the trial court seeking condonation of delay in depositing the amount of rent determined by the trial court conclusively goes to show that the appellant had committed default in payment of rent and in view of the law laid down by the Hon''ble Supreme Court in the case of Nasiruddin and Others Vs. Sita Ram Agarwal, the delay in payment of rent was not liable to be condoned, the defence was liable to be struck of and the appellant having committed default in payment of rent was liable to be evicted from the suit premises. The findings regarding the bonafide necessity, non-user, nuisance are all essentially findings of fact which both the courts below have concurrently found in favour of the plaintiff-respondent and learned counsel for the appellant failed to point out any perversity in the said findings so as to give rise to any substantial question of law.

Consequently, there is no substance in the appeal and the same is, therefore, dismissed. However, in the facts and circumstances of the case, the appellant is granted time till 31st December, 2014 to vacate the suit premises subject to appellant paying the entire decreetal amount/arrears of mesne profit as directed by the trial court/appellate court within a period of four weeks and continue to pay the mesne profit month by month to the respondent till 31st December, 2014. Further the appellant would also file an undertaking within three weeks before the trial court that he would vacate the suit premises on or before by 31st December, 2014 and would not deal with the said property to the prejudice of the defendant landlord. In case of any default in compliance of any of the above directions, the decree passed by the trial court shall be executable forthwith.

The stay application also stands disposed of.