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S. Bahadur and anr. Vs. D.N. Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 5 of 1983
Judge
Reported inAIR1984Raj50
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13 and 22
AppellantS. Bahadur and anr.
RespondentD.N. Sharma
Advocates: M.M. Tiwari and; N.K. Mishra, Advs.
DispositionAppeal dismissed
Cases ReferredIn Kaushalya Devi v. K. L. Bansal
Excerpt:
.....of full arguments before the first appellate court having failed, adopted strategy of getting time for eviction up to june, 83' by withdrawal of the appeal. june, 1983 is drawing near, he wants to prolong bis stay in the premises by taking a somersault and challenging the judgment of the first appellate court as a very casual allegation, that his withdrawal was under terror created by his counsel, who advised him to take time permissible in view of well known proverb that discretion is better part of valour. 21. we are of the opinion that thewithdrawal of the appeal by the appellant was done voluntarily and consciously in a wilful, deliberate and strategic manner to get time for eviction after realising that there was no substance to the merits of the appeal and we cannot permit to..........to admit the case the counsel for the appellant advised his client in his own interest to obtain time for eviction. it is not a case where a counsel did not act fairly. we are, therefore, not inclined to enter into the merits of the case and the controversy about the finding of the bona fide reasonable necessity under section 14 (2) as correct or not. the above two decisions referred to by mr. tiwari are, therefore, not relevant for our purpose unless we first set aside the judgment of the learned single judge dismissing the appeal on the basis of the undertaking and the withdrawal and then direct him to reconsider the appeal on merits. the trial court had recorded a finding of fact that the personal necessity was proved. the appellants had filed an appeal to challenge this finding......
Judgment:

G.M. Lodha, J.

1. This special appeal has been filed by the defendants, who are tenants, against the judgment ofthe learned single Judge of this Court in civil first appeal No. 73/82.

2. Learned District Judge, Jaipur, City Jaipur passed a decree of eviction on the ground of bona fide and reasonable necessity under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The defendants contested the suit and six issues were framed. Evidence was recorded by the trial court and after recording of the evidence the trial court in a detailed judgment held that the plaintiffs have succeeded in proving that they required the premises for their reasonable and bona fide need.

3. Aggrieved by the judgment of the learned District Judge, first appeal was filed before this Court. According to the proceedings before the learned single Judge, the appeal was taken up for consideration on 2nd July, 82. On this date the court further directed that the execution would remain stayed. The appeal was then taken up on 7th July, 82 and 12th July, 82. It appears that on 12th July, 82 after hearing the parties, record of the lower court was summoned. The record was then received and the case was taken up on October 11, 1982 and the Hon'ble Judge observed that this case is likely to take same time and, therefore, it must be put up for admission on some other date. On 12th November, 82, counsel for the appellant prayed for time and the case was adjourned. Again it was adjourned on 28-11-1982. On 4-1-83 again the counsel for the appellant prayed for time. On 10-1-83 both the parties prayed for time. Ultimately, arguments were heard on 27th January, 83 and as the hearing could not be completed, it was kept part-heard. It was further taken up on 31-1-83. On 31-1-83 the appellant Shri S. Bahadur and respondent Shri D. N. Sharma both were present in person with their Counsel. Their statements were recorded and then the appeal was dismissed as withdrawn. However, an undertaking was given by the tenant-appellant to deliver vacant possession of the premises to the landlord on or before June, 30. 1983 and nay the arrears or damages for use and occupation on or before February 15, 83. The undertaking was accepted.

4. In this appeal, today Mr. Tiwari has submitted that the appeal was withdrawn by the appellant because he became nervous and as his counsel toldhim that the court is not convinced on merits and if he undertakes then time may be allowed, otherwise even time would not be allowed. Even in the grounds of appeal it has been mentioned in para No. 4 that after arguing the case for some time, the appellant's counsel told the appellant No. 1 that the appeal was not likely to be admitted and would be dismissed but if he would withdraw the appeal then time would be granted for vacating the premises. The above verbal and written contention of Mr. Tiwari viewed in the background of the history of the case that whereas the decree was granted by the trial court on 17-4-1982, the proceeding in the first appeal continued and various adjournments were taken and ultimately the arguments were heard on 27-1-1983 and then again on 31-1-83 goes to show that the appellants and their counsel tried their best to take time and further to get the case admitted on merits if it was possible. It was only when the learned counsel for the appellants sensed the views of the court after arguing the case he advised in the interest of the client to gain some more time and withdraw the appeal. It is not without significance that the appellant was well represented by a senior counsel and there was no chance of his being pressurised and terrorised by any agency. In fact except in the memorandum of appeal and except making above submission, the appellant has not dared to file an affidavit in support of the contention that the withdrawal of the appeal was not voluntary and it was on account of any duress. We are, therefore, not inclined to accept the contention of Mr. Tiwari that this court should not accept the withdrawal of the appeal and the order passed by the Court and should remand the case for rehearing on merits after holding that the withdrawal was made on account of the appellant having become nervous or terrorised.

5. Mr. Tiwari was conscious of the above difficulty and therefore, he argued that it was not permissible for the first appellate court to permit withdrawal of the appeal, without giving a finding that on the merits of the case as the finding recorded by the trial court, a decree for eviction was justified on the ground of bona fide and reasonable necessity and further after giving a finding that the comparative hardship would be to thelandlord and not the tenant if the decree for passing eviction is not given. The contention of Mr. Tiwari is that withdrawal of the appeal tantamounts to consent decree or compromise decree, which cannot be given under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 as a decree can be given only when it is established on record that one of the conditions mentioned in Section 13 of the Act is fulfilled.

6. In support of his above contention Mr. Tiwari relied upon Smt. Nai Bahu v. Lala Ram Narayan, AIR 1978 SC 22, in which the Hon'ble Supreme Court held that the general law of landlord and tenant will have to give way to the special Rent Control Act and only by consent or compromise a decree for eviction cannot be granted against the tenant. The grounds for eviction must be pleaded and proved. After laying down the above principle their Lordships of the Supreme Court have held that in that case the tenor of compromise showed no intention to create a lease between the parties. The compromise decree was a lawful decree of eviction as it was based on permissible statutory ground and there was sufficient material to show that the trial court applied its mind to the requirement of law. It was further held that in view of the above, the executing court cannot refuse to execute decree even though the decree for eviction was based on a compromise.

7. Mr. Tiwari further invited our attention to the decision of Rahman Jee Wangnee v. Ram Chand, AIR 1978 SC 413 in which it was held that under proviso to explanation to Section 11 (1) (a) of the Jammu and Kashmir Houses and Shops Rent Control Act, it was necessary to consider whether eviction of tenant from part of premises is to be ordered so as to substantially satisfy reasonable requirement of landlord.

8. In this connection a decision of this Court in Bhawani Singh v. Achal Singh, (1981) 2 Ren CR 575 was also referred to by Mr. Tiwari, in which it was held that the court should consider the requirement of the landlord under Section 14 (2) of the Rajasthan premises (Control of Rent and Eviction) Act with a view to find out whether partial eviction would be sufficient.

9. We have not been able to appreciate the relevancy of the above citations before us, because admittedly, the first appeal was dismissed as withdrawn and neither the counsel for the appellant appearing before the learned single Judge nor the appellant has given any affidavit that it was done under duress, coercion or mistake of fact or mistake of law or misrepresentation or undue influence. On a careful consideration of the various orders passed by the learned single Judge. We find that the case was heard on merits on the first day i. e., 27th January, 1983 and then it was adjourned to 31-1-1983 and both the parties appeared before the learned single Judge on 31-1-1983 and gave their statements. Learned counsel for the parties identified the parties at the time of giving of statements. It is obvious that after hearing the case on merits when the Court was not inclined to admit the case the counsel for the appellant advised his client in his own interest to obtain time for eviction. It is not a case where a counsel did not act fairly. We are, therefore, not inclined to enter into the merits of the case and the controversy about the finding of the bona fide reasonable necessity under Section 14 (2) as correct or not. The above two decisions referred to by Mr. Tiwari are, therefore, not relevant for our purpose unless we first set aside the judgment of the learned single Judge dismissing the appeal on the basis of the undertaking and the withdrawal and then direct him to reconsider the appeal on merits. The trial court had recorded a finding of fact that the personal necessity was proved. The appellants had filed an appeal to challenge this finding. Learned single Judge had heard the case on merits and was not convinced to set aside the finding of the trial court. It was for the appellants to press their appeal or not. The undertaking and the withdrawal given at that stage before the learned single Judge shows unmistakably that the appellants were satisfied that it would not be possible for them to assail the finding of fact recorded by the trial court and they sought time for vacation of the premises on or before June 30, 1983. Learned single Judge had thus applied his mind to the merits of the case. We find support in the above view in D. Balkrishnamurthy v. Manasani Veeranarssaiah, AIR 1971 Andh Pra 251.

10. Our attention was also drawn to the decision of Roshan Lal v. Madan Lal,AIR 1975 SC 2130, wherein it was held that if the parties enter into compromise under Rent Control Legislation for avoiding litigation, the court can allow compromise but while doing so the Court must ensure that the compromise is not in violation of the requirement of the law. According to their Lordships, the compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly in agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law. If it is in violation of law, the court should refuse to record the compromise. Their Lordships in the above case held that the compromise was valid. Their Lordships lamented that though on account of compromise, three years time to vacate the shop was granted, the tenant was ill-advised to fight the litigation further and thus caused delay in vacating of the shop by another five years.

11. We fail to appreciate how the above observations can help Mr. Tiwari. We further feel that the tenant having given an undertaking to vacate the premises by June 30, 1983, should not be allowed now to take a somersault and resile from an undertaking given in the High Court after due consultation with his counsel in the form of 'Statement on Oath'.

12. Mr. Tiwari also relied upon a decision of Hon'ble Supreme Court in Roshan Lal v. Madan Lal (Supra). In which a similar view was taken that in view of the Rent Control Regulation, the restriction on eviction should not be honoured and unless the requirement of the law is satisfied, a decree should not be passed. Similar is the view taken in Firozi Lal v. Manmal, AIR 1970 SC 794 and K. K. Chari v. R. M. Sheshadri, AIR 1973 SC 1311. In Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838 same view has been reiterated.

13. A re'sume' of the above decisions would show that since eviction of the premises in the area are governed by the Rent Control Legislation or Rent restrictions, evictions are not permissible on the whim, caprice or sweet will of the landlord and can be allowed only on fulfilment of the statutory requirement mentioned in those laws, the courts should not grant decrees of eviction unless they are satisfied either by way ofevidence or in eases of compromise or consent by way of material in the form of pleadings or admissions of the defendant that statutory ground for eviction, is made out. The second principle laid down in these decisions is that in cases of consent or compromise the Court should remain alive to the requirement of the law and then find out whether the compromise or consent was given by the defendant being fully alive to it.

14. We are firmly of the opinion thatall these decisions are important for the legal requirement of passing a decree by the trial court, where suit is filed and decided. True it ia that in case, the trial court has not taken notice of it and passed a decree on compromise or consent against the law, then in some circumstances even execution of the decree can be resisted under the provisions of the Rent Restriction Laws. However, in none of the above decisions, there is any direct or indirect mention that a tenant-appellant cannot be allowed to withdraw the appeal, which may be first appeal or second appeal or a revision application. Mr. Tiwari was repeatedly asked to find out for us and for our assistance any decision in which even indirectly it has been mentioned that the appellate court should not permit withdrawal of the appeal.

15. After a finding has been recorded by the trial court under Section 13 of the Rajasthan Premises (Control of Rent and Eviction; Act, holding that the landlord-plaintiff is in bona fide requirement of the premises for his own use and that greater hardship would be caused to him if the premises are not ordered to be vacated all that the appellate court was required to consider was whether the appellant has been able to make out a proper case for setting aside any of these findings of the lower court. If the appellant himself withdraws the appeal and that too after arguing the case for some time, finding that the appellate court is not inclined to accept his appeal, it only means that the first appellate court was not inclined to hold that the findings of the trial court are incorrect, unjust or improper.

16. We cannot hold that for the above purpose the appellate court was required to discharge same duties of the trial court oven before permitting the withdrawal of the appeal. Contrary toit, we are of the opinion that once a decree has been passed by a competent court under Section 13, the appellate court would listen and decide only those points, which are argued before it and while doing so there is no warrant in any law that the appellant in such a case cannot be allowed to withdraw the appeal.

17. We, therefore, how that the principle of law laid down in the above derisions would not apply in a case where in an appeal the tenant withdraws the appeal and there is an existing decree of the trial court passed on statu-tory ground of reasonable and bona fide necessity, on the basis of material available on record.

18. In the instant case, the case of the appellant is still worse because not only he has taken a chance of full arguments before the first appellate court having failed, adopted strategy of getting time for eviction up to June, 83' by withdrawal of the appeal. Now having done that arid after obtaining benefit, now when. June, 1983 is drawing near, he wants to prolong bis stay in the premises by taking a somersault and challenging the judgment of the first appellate court as a very casual allegation, that his withdrawal was under terror created by his counsel, who advised him to take time permissible in view of well known proverb that discretion is better part of valour.

19. We feel that such type of technique and tactics of any litigant should not be allowed to accused, otherwise no sanctity would be attached to the undertaking given in the court. It is unfortunate that after arguing the case and after making option of taking lime before the first appellate court, the ten-ants-defendants have filed this appeal and want to withdraw their undertaking in a very light-hearted casual manner.

20. In oar considered opinion making of bald vague allegations before the Division Bench of the High Court against the proceedings, which took place before a single Judge, is neither fear nor permissible in law. Such a practice would only in our accusation against the learned Judges and that too behind their back and without hearing them. This would be against all precedents, decency and decorum of the Court. We, therefore, cannot approve the conduct of the appellant in this case.

21. We are of the opinion that thewithdrawal of the appeal by the appellant was done voluntarily and consciously in a wilful, deliberate and strategic manner to get time for eviction after realising that there was no substance to the merits of the appeal and we cannot permit to resile from the withdrawal by accepting the appeal here and remanding the case again for having second innings and third innings without any reasonable good or just cause.

22. Since we are convinced that the appeal is devoid of any force and the submissions made by Mr. Tiwari are untenable, we have got no hesitation in dismissing this appeal, which is hereby dismissed in limine.


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