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Narasaram Vs. Smt. Babli Bai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 289 of 1982
Judge
Reported inAIR1983Raj208
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1)
AppellantNarasaram
RespondentSmt. Babli Bai
Appellant Advocate M.L. Shreemali, Adv.
Respondent Advocate H.M. Parekh, Adv.
DispositionRevision dismissed
Cases ReferredRajendra Kumar v. Jamna Das
Excerpt:
.....of section 13 (1) (a), must be clearlypleaded and ordinarily the plaint, in a suit based on the ground contained in section 13 (1) (a) of the act, should specifically contain averments not only in respect of non-payment of rent but also in respect of the failure on the part of the tenant to make a tender of rent for a period of over six months. however, in the present case, taking an overall view of the averments made in paras 4 and 7 of the plaint together, i am satisfied that the ground contained in section 13 (1) (a) was sought to be alleged by the plaintiff and further that the defendant also fully well understood the fact that the suit was based on the ground contained in section 13 (1) (a) of the act, as he himself came forward and applied for determination of the amount of..........court from passing a decree for eviction of a tenant, without satisfying itself that one of the ground contained therein exists. if the suit for eviction is not based on one of the grounds contained in section 13 (1) of the act or the court passing the decree does not apply its mind and satisfy itself about the existence of one of the permitted grounds for eviction, then the decree passed either on compromise or in default of payment of arrears of rent by the defendant, would be a nullity and could not be enforced by execution thus, a decree which is not based on one of the grounds contained in section 13 (1) of the act, in so far as it directs delivery of possession of the premises to the landlord, is a nullity and cannot be executed.3. the aforesaid principle is well settled and.....
Judgment:
ORDER

Dwarka Prasad, J.

1. The argument of the learned counsel for the petitioner is that the decree passed by Munsif, Baliin the present case was executable inasmuch as the court which passed the decree did not satisfy itself that one of the grounds mentioned in Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') existed. Learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Kaushalva Devi v. V.K.L. Bansal, AIR 1970 SC 838 in support of his contention. It was held in the aforesaid case that in case the decree is passed on the basis of a compromise and did not indicate that any one of the statutory grounds contained in Section 13 (1) of the Act existed, then the decree should be considered to be a nullity, as the court had passed the decree without satisfying itself that a ground for eviction authorised by law existed.

2. The provisions of Section 13 (1) of the Act constitute a restriction on the right of the landlord to obtain a decree for eviction of his tenant in respect of premises situated in towns or cities to which the provisions of the Act are made applicable. Section 13 (1) forbids the court from passing a decree for eviction of a tenant, without satisfying itself that one of the ground contained therein exists. If the suit for eviction is not based on one of the grounds contained in Section 13 (1) of the Act or the court passing the decree does not apply its mind and satisfy itself about the existence of one of the permitted grounds for eviction, then the decree passed either on compromise or in default of payment of arrears of rent by the defendant, would be a nullity and could not be enforced by execution Thus, a decree which is not based on one of the grounds contained in Section 13 (1) of the Act, in so far as it directs delivery of possession of the premises to the landlord, is a nullity and cannot be executed.

3. The aforesaid principle is well settled and there could be no quarrel with the proposition of law urged by the learned counsel for the petitioner. Then the question which arises is as to whether in the present case the decree Ex. 4 was passed by the learned Munsif against the petitioner without satisfying himself as to the existence of one of the grounds contained in Section 13 (1) of the Act. Learned counsel for the non-petitioner contends that after recording the statement of the plaintiff, the learned Munsif decreed the plaintiff's suit holding that the plaintiff has been able to prove the case set up by him in the plaint and as such it should be considered from the averments contained in the plaint as to whether the suit was based on any one of the grounds contained in Section 13 (1) of the Act. In para 4 of the plaint, it has been mentioned that the defendant has paid the rent of the premises in dispute up to Jeth Badi 30 Samwat 2030 and that rent from Jeth Sud 1, Samwat 2030 has not been paid and is in arrears. It has also been pleaded that in this manner the defendant had become a defaulter in payment of rent and the plaintiff was entitled to get the defendant evicted from the suit premises on this ground. Again in para 7 of the plaint it has been stated that the defendant had not paid arrears of rent and as such he has become a defaulter and that the cause of action for filing the suit arose on that ground as well as on the ground of bona fide and personal necessity of the plaintiff for the suit premises.

4. Learned counsel for the petitioner, on the strength of the decisionof this Court in Rajendra Kumar v. Jamna Das, 1975 Raj LW 64 argued that from the allegations made in the plaint, the requirement of Section 13 (1) of the Act was not satisfied and as such the suit could not have been decreed on the ground of making defaults in payment of rent. In Rajendra Kumar's case, a learned Judge of this Court held that merely from the pleadings it was difficult to hold that default was made one of the grounds for eviction as in that case the allegation made in the plaint was only with regard to non-payment of rent beyond a particular date and it had not been stated in the plaint that the tenant was defaulter in payment of rent, within the meaning of Section 13 (1) (a) of the Act nor a relief was sought in the plaint on the ground contained in 13 (1) (a) of the Act. In the present case the learned counsel for the non-petitioner read out before me the contents of the plaint and as I have observed above a consideration of paras 4 and 7 of the plaint makes it perfectly clear that the plaintiff not only pleaded non-payment of rent from Jeth Sud 1 Samwat 2030, but he also proceeded to say that the tenant was a defaulter in payment of rent and further that the plaintiff was entitled to get the defendant evicted on that ground. Moreover, the cause of action for filing the suit was also alleged to have arisen to the plaintiff on account of the defendant having become a defaulter in payment of rent for a period of more than six months. Thus, the averments made in the plaint, considered as a whole, undoubtedly lead to the conclusion that the plaintiff not only pleaded about the non-payment of rent beyond a specified date, but he also specifically alleged that the tenant was a defaulter in payment of rent within the meaning of Section 13 (1) (a) of the Act. Not only that a simple consideration of the averments made in the plaint leads to the conclusion, but it further appears from the proceedings taken in the suit that the defendant also fully well understood that the plaintiff's suit for eviction was based on the ground of default, contained in Section 13 (1) (a) of the Act. The defendant applied under Section 13 (3) for the determination of arrears of rent together with interest thereon, and the trial court duly determined the amount payable by thetenant under Section 13 (3) of the Act, but the defendant failed to make payment of the amount so determined by the trial court within time allowed by law for the purpose. Thereafter on an application moved by the plaintiff under Section 13 (5) of the Act, the tenant's defence against eviction was struck off. Thus, Rajendra Kumar's case (1975 Raj LW 64) is clearly distinguishable on a plain consideration of the averments of the plaint itself, apart from the conduct of the defendant which can also be taken into consideration.

5. Learned counsel for the petitioner further argued that in order to comply with the conditions specified in Section 13 (l) (a) of the Act, the plaintiff should have alleged that the defendant had neither paid nor tendered the amount of rent for a period of more than six months preceding the date of filing of the suit. Undoubtedly, it has not been pleaded in the plaint in so many words that the defendant had failed to tender rent for a period of more than six months, although it has been specifically pleaded that the defendant has failed to make payment of rent for a period of more than six months prior to the filing of the suit. However, the averments contained in para 4 of the plaint proceed to state that the defendant had become a defaulter and the plaintiff was entitled to obtain a decree for eviction on that basis. Further in para 7 of the plaint it was stated that the cause of action for filing the suit arose as the defendant had become a defaulter. These averments go to show that in substance the plaintiff has pleaded that the defendant had become a defaulter within the meaning of Section 13 (1) (a) of the Act, which he could become only if the defendant had neither paid nor tendered the amount of rent at least for a period of six months prior to the filing of the suit.

6. It must be emphasised that ordinarily the plaintiff should plead in clear and unambiguous terms, while raising a ground contained in Section 13 (1) (a) of the Act that the defendant-tenant had neither paid nor tendered (he amount of rent for the premises in disput at least for a period of six months prior to the institution of the suit. Thus, all the requirements of fact, in terms of Section 13 (1) (a), must be clearlypleaded and ordinarily the plaint, in a suit based on the ground contained in Section 13 (1) (a) of the Act, should specifically contain averments not only in respect of non-payment of rent but also in respect of the failure on the part of the tenant to make a tender of rent for a period of over six months.

7. Learned counsel for the petitioner is justified in making a criticism that the plaintiff has not in very clear terms pleaded the absence of tender of rent by the defendant for a period of six months. However, in the present case, taking an overall view of the averments made in paras 4 and 7 of the plaint together, I am satisfied that the ground contained in Section 13 (1) (a) was sought to be alleged by the plaintiff and further that the defendant also fully well understood the fact that the suit was based on the ground contained in Section 13 (1) (a) of the Act, as he himself came forward and applied for determination of the amount of arrears of rent and interest thereon, under Section 13 (3) of the Act. In the present case, as I have already observed above, the requirements of Section 13 (1) (a) appear to have been substantially complied with and the decree of eviction passed by the learned Munsif cannot held to be a nullity on the ground that a clear plea in that respect was not raised in the plaint.

8. Learned Munsif not only considered the allegation made in the plaint but he also proceeded to consider the evidence led by the plaintiff in respect of defaults made by the defendant in payment of rent. As the defendant failed to appear, after his defence against eviction was struck off, the trial court had no alternative but to proceed ex parte and the plaintiff led his evidence. Having held that the plaintiff was able to prove the allegations made by him in the plaint, it appears that the trial court was satisfied about the existence of the conditions contained in Section 13 (1) (a) of the Act.

9. In view of the aforesaid discussion, there is no substance in this revision petition and the same is dismissed.


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