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Nemchand Vs. Bhanwar Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 272 of 1973
Judge
Reported in1981WLN(UC)90
AppellantNemchand
RespondentBhanwar Lal
DispositionAppeal dismissed
Cases ReferredV. Dhampal Chettiar v. Yesoai Ammal
Excerpt:
.....& (4)--tenant neither moved an application under section 13(4) nor deposited arrears of rent--payment of rent not proved--held, he was a defaulter & 3 years rent was due against him.;it is surprising to notice that the defendant-appellant did not move any application in the trial court under section 13(4) of the rajasthan premises (control of rent and eviction) act, 1950, nor he cared to deposit the alleged arrears of rent, as claimed by the plaintiff, in the trial court on the first dare of hearing of the suit. the defendant, having failed to prove the alleged payment of rem for the period from june 16, 1966 to june 15, 1969, the obvious finding is that he was a defaulter in payment of rent and three years' rent was due against him when the suit was filed on july 14,..........defendant from the premises in dispute for all possible grounds, viz. the plaintiff required the suit premises reasonably andbonafide for his own use, the defendant had sublet the premises or had parted with possession thereof, the defendant had made material alterations in the premises and he had committed defaults in payment of rent. the plaintiff was unable to prove all 'other grounds for eviction alleged by him except that of defaults and the trial court decreed the suit for ejectment only on the ground of defaults in payment of rent. the first appellate court concurred with the finding recorded by the trial court on the question of defaults in payment of rent. now in this second appeal, again the same question has been raised.3. the finding of the two courts below is that the.....
Judgment:

D.P. Gupta, J.

1. In this defendants's appeal, arising out of a suit for ejectment and for recovery of arrears of rent, the only ground argued was that the tenant-appellant was not a defaulter in payment of rent and the decree for ejectment, passed solely on the ground of defaults in payment of rent, was erroneous and deserves to be set aside.

2. The plaintiff filed a suit for ejectment of the defendant from the premises in dispute for all possible grounds, viz. The plaintiff required the suit premises reasonably andbonafide for his own use, the defendant had sublet the premises or had parted with possession thereof, the defendant had made material alterations in the premises and he had committed defaults in payment of rent. The plaintiff was unable to prove all 'other grounds for eviction alleged by him except that of defaults and the trial court decreed the suit for ejectment only on the ground of defaults in payment of rent. The first appellate court concurred with the finding recorded by the trial court on the question of defaults in payment of rent. Now in this second appeal, again the same question has been raised.

3. The finding of the two courts below is that the defendant has failed to make payment of rent of the premises in dispute from June 16, 1966 to June 15, 1969. As a matter of fact, the defendant is alleged to have taken the premises in dispute on rent with effect from June 16, 1966 on the basis of an oral contract of tenancy and also executed a'kabuliyat' in favour of the plaintiff landlord, agreeing to pay rent at the rate of Rs. 15/- per month. Although the plaintiff alleged that the defendant did not make payment of rent even for a single month, since he took the premises in dispute on rent, the defendant pleaded that the rent for the entire period had been paid by him and that no amount of rent was in arrears. No receipt has been produced regarding payment of rent nor any other documentary proof of payment is forth coming on behalf of the defendant. The defendant has not produced any entries from the account books, if any, kept by him. The oral evidence led by the defendant regarding payment of rent has been disbelieved by both the courts below. The witnesses who have appeared on behalf of the defendant have vaguely alleged payments of rent, but the details of alleged payments are missing. The two courts below have held that the evidence of the defendant on the question of payment of rent is vague and indefinite and that is precisely the reason for which such evidence has been disbelieved. Now, whether any amount was paid by the defendant to the plaintiff towards rent of the premises is a pure question of fact and the decision of this question as to whether the defendant had committed defaults for a period of six months in payment of rent, solely depends upon appreciation of oral evidence, in the absence of any documentary evidence on the record of this case. Both the courts below have disbelieved the oral evidence about the alleged payments. This Court, in second appeal, cannot disturb the finding of fact recorded by the two courts below in this respect. It is suprising to notice that the defendant-appellant did not move any application in the trial court under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, nor he cared to deposit the alleged arrears of rent, as claimed by the plaintiff, in the trial court on the first date of hearing of the suit. The defendant, having failed to prove the alleged payment of rent for the period from June 16, 1966 to June 15, 1969, the obvious finding is that he was a defaulter in payment of rent and three years' rent was due against him when the suit was filed on July 14, 1969.

4. Learned Counsel further argued that a proper notice to quit was not served on the defendant. The decision of their Lordships of the Supreme Court in V. Dhampal Chettiar v. Yesoai Ammal : [1980]1SCR334 is a complete answer to this submission of the learned Counsel. It was held by their Lordships of the Supreme Court in that case that the determination of a lease, in accordance with the provisions of Transfer of the Property Act, is unnecessary and a mere surplusage, where a decree for eviction of a tenant is sought to be obtained under the Rent Control Act. Thus the absence of service of a valid notice terminating the tenancy is of no avail, when the decree for eviction is sought on one of the grounds specified in the Act.

5. Learned Counsel lastly urged that an application under Section 13-A of the Act, which was inserted by the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Ordinance, 1975, which was later replaced by the Amending Act of 1976, was moved by the defendant-appellant in the trial court. But no such application is on the record of this appeal or on the record of the trial court which is before me, nor there is any application before me giving any details or particulars as to when any such application under Section 13-A of the Act was moved by the defendant and in which Court such an application was moved by him and with what result. In the absence of any such particulars and in the absence of any application before me in that respect, no congizance can be taken by this Court of a mere oral allegation made in respect thereof.

6. I find no substance in this appeal and the same is dismissed. The parties are left to bear their own costs of this appeal.


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