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Hiranand Vs. Umaid Raj - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 268 of 1972
Judge
Reported inAIR1973Raj120; 1972()WLN926
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13, 13(1), 13(4), 13(6); Transfer of Property Act, 1882 - Sections 106
AppellantHiranand
RespondentUmaid Raj
Appellant Advocate B.K. Mohanani, Adv.
Respondent Advocate Gopalraj Singhvi and; P.C. Bhandari, Advs.
DispositionAppeal dismissed
Cases ReferredIn Moti Lal v. Pooranchand.
Excerpt:
.....failed to deposit the rent in full by the date fixed the court had no option but to strike out the tenant's defence against eviction.;(b) rajasthan premises (control of rent & eviction) act, 1950 - section 13(6)--defence struck out--tenant not entitled to protection under section 13 against eviction.;the natural consequence of the striking out of the defence of the tenant under sub-section (6) of section (13) is that he will not be entitled to claim the protection under section 13 of the act against the eviction. whatever defence the tenant may have under the transfer of property act will remain intact notwithstanding the striking out of the defence under sub-section (6) of section 13 of the act.;that when the defence of the defendant-tenant has been struck out, it means all the..........of default by the tenant and consequently the learned munsiff was in error in striking off the tenant's defence. 2. that in spite of striking off the defence the plaintiff could be cross-examined by the defendant-tenant and the trial court was consequently in error in refusing certain questions to be put in, corss-examination. 3. that the notice for determination of the tenancy under section 106, transfer of property act was not valid. 3. looking to the plaint i find that the suit is no doubt based on the bona fide personal necessity of the landlord but in spite of that for continuing to earn the protection under section 13 of the rajasthan premises (control of rent and eviction) act. 1950, (hereinafter called 'the act') the tenant has always to be ready and willing to pay rent for.....
Judgment:

Kan Singh, J.

1. This is a tenant's second appeal directed against the appellate judgment and decree of the learned Additional District Judge No. 2, Jodhpur, ordering the tenant's eviction from the suit premises.

2. The eviction from the suit Premises was sought on the ground of bona fide personal necessity of the landlord. The tenant resisted the suit. This gave rise to the following four issues:--

1. Whether the plaintiff has bona fide and reasonable necessity for the house and it is necessary for him to get the house evicted?

2. Whether the defendant is a habitual defaulter?

3. Whether the expenses for light and water were included in the rent?

4. Whether the notice is invalid?

An application was made by the tenant in the trial Court for the determination of the rent and by its order dated 17-2-1969 the learned Munsiff determined the rent at Rs. 1,090/-. The tenant was directed to pay this rent as also the future rent. However, as the tenant had only paid Rs. 1,000/- and not the full amount of Rs. 1.090/- the learned Munsiff struck off the defence of the tenant on the application made by the landlord. The plaintiff-landlord appeared in his evidence. The tenant wanted to cross-examine the landlord regarding his bona fide personal necessity for the suit premises but the cross-examination was disallowed. Eventually the learned Munsiff decreed the suit Aggrieved by the Judgment and decree of the learned Munsiff the tenant went up in appeal to the Court of the learned Additional District Judge No. 2 but was not successful. In the present second appeal a three-fold contention has been made:--

1. That the suit was not filed for eviction on the ground of default by the tenant and consequently the learned Munsiff was in error in striking off the tenant's defence.

2. That in spite of striking off the defence the plaintiff could be cross-examined by the defendant-tenant and the trial Court was consequently in error in refusing certain questions to be put in, corss-examination.

3. That the notice for determination of the tenancy under Section 106, Transfer of Property Act was not valid.

3. Looking to the plaint I find that the suit is no doubt based on the bona fide personal necessity of the landlord but in spite of that for continuing to earn the protection under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950, (hereinafter called 'the Act') the tenant has always to be ready and willing to pay rent for the premises to the full extent allowable by this Act Further the tenant has to abide by the provisions of Sub-section (4) of Section 13 of the Act Therefore, when the defence of the tenant was struck off the plaintiff landlord was entitled to claim his rights under the general law, namely, to make the tenant quit the premises when the tenancy is determined in accordance with Section 106 read with Section 111(e) of the Transfer of Property Act. The question here is whether the defence of the defendant was struck off in accordance With law. The learned Munsiff has passed a detailed order on 23-9-1969. Itgoes to show that on 17-2-1969 the learned Munsiff has determined the rent payable by the tenant under Section 13 (4) of the Act at Rs. 1,090/-. Towards this Rs. 1,000/- only were deposited by the tenant on 16-4-1969. It was urged that it was at the request of Shri Sumermal learned counsel for the plaintiff-landlord (since deceased) that only this much rent was deposited. The learned Munsiff considered the question whether Rs. 1,000/-was deposited in full and final satisfaction of the amount determined by the Court as rent. He also considered the question whether Shri Sumermal had any authority to waive the payment of Rs. 907-. Both the questions were decided against the defendant-tenant. Against this order an appeal was taken by the tenant to the Court of the learned Additional District Judge No. 1, Jodhpur. The learned Additional District Judge upheld the order of the learned Munsiff and dismissed the appeal. The tenant then came up in revision to this Court but was unsuccessful. In the circumstances there is no force in the contention that the learned Munsiff was in error in striking off the defence of the tenant. Sub-section (6) of Section 13 of the Act, inter alia, provides that if the tenant fails to deposit or pay any amount referred to in Sub-section (4) on the date or within the time specified In the order the Court shall order the defence against the eviction to be struck out and shall proceed with the hearing of the suit. As the tenant had failed to deposit the rent in full by the date fixed the Court had no option but to strike out the tenant's defence against eviction,

4. Now the second contention of the learned counsel involves the question as to what is the effect of an order striking out the defence of the tenant under Sub-section (6) of Section 13 of the Act. To my mind the natural consequence of the striking out of the defence of the tenant under Sub-section (6) of Section 13 is that he will not be entitled to claim the protection under Section 13 of the Act against the eviction. Whatever defence the tenant may have under the Transfer of Property Act will remain intact notwithstanding the striking out of the defence under Sub-section (6) of Section 13 of the Act For example, it will be still open to the tenant to raise the plea if his tenancy was validly terminated or whether he was or was not a tenant or whether any rent was due or not. The statutory protection under Section 13 will, however, cease in the event of the striking out of the defence. Learned counsel for the appellant argued that the word used in Sub-section (6) of Section 13 Is 'defence' and that should not be taken to be equivalent to the protection claimable under Section 13. I am afraidthat is a groundless quarrel about the words. Once the defence is struck out under Sub-section (6) of Section 13 of the Act the prohibition against the Court order-ins eviction of the tenant unless it is satisfied regarding the acts or omissions mentioned in Sub-clauses (a) to (k) of Sub-section (1), is removed. With the vanishing of the prohibition against the powers of the Court to order eviction the rights of the landlord under the general law will spring into action. Their Lordships of the Supreme Court in Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 observed thus:--

'Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against 'him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not, unless the statute provides otherwise, be conditioned'.

Lodha. J. has held in Bansilal v, Laxmi Chand. 1971 Ren CJ 836 that when the defence of the defendant-tenant has been struck out, it means all the defences available to him against ejectment under the Raiasthan Premises Control of Rent and Eviction) Act 1950, cannot come to his rescue, especially when there is a statement of the plaintiff that the defendant had committed default in payment of rent for more than six months and consequently incurred the liability to be elected. I find myself in thorough, agreement with the view taken by Lodha, J. in the above case.

5. Turning now to the next contention I may observe that the striking out of the defence of the defendant will not mean that he is debarred from cross-examining the plaintiff or any of his witnesses. Where the plaintiff is still required to establish certain issues and he adduces evidence for the same then in spite of the defence of the defendant-tenant having been struck out he will be entitled to cross-examine the plaintiff or his witnesses as the case may be. Right to cross-examine a witness arises under the provisions of the Evidence Act The range of cross-examination cannot be limited; nevertheless the cross-examination has to be in accordance with the provisions of the Evidence Act, that is just as the examination-in-chief will be for establishing such facts as are relevant to the issues, the cross-examination also will be regarding matters that arerelevant to the issue, besides such Questions that may have a bearing on the credibility of a witness. What is the effect of disallowing certain questions in cross-examination of a witness will by and large depend on the facts and circumstances of each case and on the nature of the issue that was under consideration,

Now in the present case it appears from the pleadings that the defendant admits that he was the tenant of the plaintiff. The receipt of the notice Ex. A/2, which was for determination of the tenancy, was also admitted. Once a tenancy has been determined in accordance with law the landlord will be entitled to have possession of the premises from the tenant. In other words the landlord will be entitled to have a decree for the eviction of the tenant Except about the validity of the notice the defendant has not taken any other defence under the general law. The plea about the validity of the notice will be examined hereinafter but once the defence has been struck off in the present case there was nothing which could be put in cross-examination to the plaintiff for demolishing Ms case. Validity of the notice raises only a legal issue. Therefore nothing turns on the question that the defendant was not allowed to cross-examine the plaintiff as the defence was struck out under Sub-section (6) of Section 13 of the Act.

6. Now I may proceed to deal with the notice Ex. A/2. It was given by late Shri Sumermal as Advocate for the plaintiff. It mentioned that the suit premises were let out to the tenant and that the plaintiff needed the premises as his old house situated near Navchowkia, Jodhpur was not a convenient place to live there on account of the ill-health of the landlord's -wife and also as the house was situated in a place which could be reached by a conveyance with difficulty. Then the notice stated the following:--

vc esjs eofdy dks jgokl ds fy,vkids ikl fdjk;s okys edku dh t:jr gS blfy;s vkidks gLc fgnk;r esjs eofdy lwfprdjrk gS fd vius fglls dk edku rk- 11&11 dh jkrdks ftl rkjh[k ls vkidhfdkjk;snkjh 'kq: gksrh gS [kkyh esjs eofdy dks dCtk edku rkjh[k 12&11 dhlqcg rd lqiqnZ dj nsa ;k cdk;k fdjk;k vnk dj jlhn gkfly djysa ojuk ml fnu ds cknvki trespasserdgyk;saxsa vkSj esjk eofdy use andoccupationds gtsZ ds :- 60 ekgokj ikus okeqLrSgd gksxk vkidh fdjk;snkjh rk- 11 ls 'kq:gksrh gS vkSj vxj vki nwljh rkjh[k le>rs gks rks ml rkjh[k dks [kkyh djlqiqnZ dj nsa vxj vki ugha djaxs rks esjs eofdydks vnkyrh dk;Zokgh djuh gksxh vkSj tks [kpkZ gtkZ esjs eofdy dks gksxk mlds vkiftEesokj gksaxs A rk- 23&10&67 A

Learned counsel for the appellant argues that though the possession of the premises has been demanded by the landlord, he has not thereby terminated or determined the tenancy with the result that the suit for eviction of the tenant was not maintainable. Learned counsel placed reliance on Ahmad Ali v. Mohd. Jamal Uddin, AIR 1963 All 581. In this case it was observed regarding the essentials of a notice under Section 106 of the Transfer of Property Act as follows:

'A notice terminating the tenancy may include a demand for possession but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy'.

Reliance was placed for these observations on an earlier Full Bench case of Bradley v. Atkinson, (1885) ILR 7 All 899 (FB). In that case the notice that was given by the landlord to the tenant was in the following terms:--

'If the rooms you occupy in the house No. 5. Thornhill Road, are not vacated within a month from this date, I will file a suit against you for ejectment, as well as for recovery of rent due at the enhanced rate'.

The Full Bench held that the letter was not such a notice to quit as the law required, inasmuch as it was not a notice of the lessor's intention to terminate the contract at the end of a month of the tenancy. It was further observed that a notice to quit must be certain, at all events in respect of the date of the determination of the tenancy. In other words. there must be a clear and explicit intimation to the tenant as to the date after which he will, if he remains in occupation of the premises, become a trespasser. I have read these cases carefully. The underlying principle is that by the notice the landlord must manifest his intention to the tenant that from a certain date the relationship of landlord and tenant shall come to an end. Whether this was the intention or not by the giving of a particular notice will, by and large, depend on the tenor of the notice. In Moti Lal v. Pooranchand. AIR 1962 Rai 100, Modi J. observed as follows:--

'Where a notice of ejectment can be read in more ways than one then theproper way to interpret it is to preserve its validity rather than to destroy it. The provision as to notice being of a highlytechnical character the dictates of substantial justice, for which purpose, after all. the Courts exist, will hardly be served if notices of ejectment are to be readin a hyper-critical spirit and to find faults in them on every conceivable ground.'

7. Under our system of law, by words we are governed; we must be governed and ought to be governed by words but it has to be remembered that words divorced from the underlying idea which they are designed to convey will be empty vehicles and in order to gather the meaning of words we have to view them as a whole in a particular context. A word in one context may mean one thing and in another context it may mean a different thins. By and large they take their hue from the background. The purpose of interpreting a document is to read the underlying intent of the author. The notice Ex. A/2 is no doubt not artistically worded. For example in the earlier Allahabad case (1885) ILR 7 All 899 (FB) the notice was pronounced bad as it did not come up to the requisite standard. Here, to my mind, the intention is crystal clear that the landlord wanted to Put an end to the tenancy by a certain date. In the notice it has been clearly mentioned that if the premises are not vacated by a certain date then the tenant shall be treated as a trespasser. The tenant can be treated as a trespasser only when a tenancy is put an end to. Therefore, even though in so many words the notice does not say that the tenancy shall stand determined but this is the underlying intention of the notice Ex. A/2. Therefore to my mind, notice Ex. A/2 has the effect of determining the tenancy.

8. In the result I do not find any force in this appeal and accordingly I dismiss It with costs. Six months time is allowed to the tenant to give vacant possession of the premises to the landlord provided the tenant goes on paying compensation at the rate at which he was paying the rent month by month by the 15th of the following month.

9. Learned counsel for the appellant orally prayed for leave to appeal under Section 18 of the Rajasthan High Court Ordinance. In the circumstances I am not inclined to grant the leave.


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