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Heeralal Vs. Mahavir Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 85/79
Judge
Reported in1980WLN(UC)55
AppellantHeeralal
RespondentMahavir Prasad and ors.
DispositionAppeal dismissed
Cases ReferredFirm Sardari Lal Vishwa Nath and Ors. v. Pirtam Singh
Excerpt:
.....on depositing the rent regularly every month up to 3 11-75.;besides the appellant agreeing to pay monthly rent in the previous suit and continuing to do so, there is another provision which shows that the tenancy whatever it might have been in the past became monthly after the other of the court in the previous suit for depositing the amount monthly the reason is that after the term nation of the tenancy the contract even if any came to an end and the appellant was in possession of the suit premises as a statunory tenant. it is by virtue of the statute that the appellant has been protected from eviction.;(e) rajasthan premises (control of rent & eviction) act, 1950 - section 13(3) (4) & (5)--defence of tenant wrongly struck out-no. question of defence in view of peculiar..........suit between the parties i.e. suit no. 32/72 was decided on 10-12-75. during the pendency of the suit rent was paid every month as per provisions of the act and direction of the court. the defendant-appellant stopped paying the rent from 3-11-75. thereafter on 23-7-76 he deposited the rent for a year under section 19a in the court. the present suit was filed on 4-9-76. if the tenancy is monthly then clearly there is a default in payment for more than six months. if it is yearly then the rent has been paid in advance for a year.19. first point falling for consideration is whether the decision of issue no. 2 in the previous suit would operate as res judicata in the present case.20. in the case of mst. asa bai v. probhulal and ors. air (sic)00 rajasthan, 504. while discussing the.....
Judgment:

Kanta Bhatnagar, J.

1. Appellant Heeralal was the defendant in the suit filed against him by the respondent plaintiffs for ejectment of a shop on the ground of default in payment of rent. The defendant in his written statement defied the allegation of his being a defaulter in payment of rent on the ground that the tenancy was yearly and not monthly and he had deposited the amount of sent in the Court under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred as the Act). On the basis of the pleadings of the parties, learned Munsif framed five issues which translated into English read as under:

1. Whether the defendant had been held defaulter by the judgment dated 10-12-76 in Civil Suit No. 32/74 and had again committed default and therefore the plaintiff is entitled to obtain the decree for eviction against the defendant.

2. Whether the tenancy is yearly and not monthly and what is its effect on the suit.

3. What is the effect of decision of issue no 2 in suit no 32/74 and the suit being dismissed on the proceeding of the present case.

4. Whether the defendant has deposited the rent from Kartik Sudi 1 Samvat Year 2033 for one year in the Court under Section 19A and what Is its effect on the suit.

5. Relief.

2. The learned Munsif heard the arguments on issue no. 1 and by his judgment dated 26-11-77 struck out the defence of the defendant on the ground that he had committed the default in payment of rent for a period of more than sis months second time. The learned Munsif held that there is no other question of notice etc. involved in the cast, and therefore, decreed the suit of the plaintiff with an order that the defendant would give the vacant possession of the shop to the plaintiff's within a period of two months. Plaintiffs were held entitled to the amount oeposited in the court aid also to an interest @ 6% p.a. on the amount of rent remaining due from the date of the filing of the suit till realisation.

3. Being aggrieved by that judgment and decree, tie defendant preferred an appeal in the Court of the District Judge, Churu who transferred the case to the Court of Civil Judge, Churu. The learned Civil Judge by his judgment dated 17-5-79 dismissed the appeal. It is against tie judgment of the nut appellate court that the defendant has come in this Second Appeal.

4. Following two substantial questions of law are found to be involved an this appeal:

1. Whether the trial court acted according to law in striking out the defence of the defendant.

2. Whether the suit could be decreed without trial of issues, which arise from the pleadings of the parties?

5. I heard Mr. C.D. Mundhra, learned Counsel for the respondents and carefully examined the record of the case.

6. While advancing argument on the first point Mr. Mundhra has strenuously contended that the provisions for striking out the defence of defendant were not attracted in the case because he has not deposited the amount under Sub-section (3) and (4) of Section 13 of the Act.

7. Sub-Section (3) of Section 13 of the Act, as amended, by the Ordinance dated 29 10-75, subsequently replaced by the Rajasthan Amending Act No. 14 of 1976, deals with the previsions of depositing of rent on the court determining the amount to be deposited.

8. Sub-section (4) provides the way for depositing the amount due and depositing the rent in future, Sub-section (5) reads as under:

If a tenant fails to deposit or pay any amount referred to in Sub-section (4) on the date or within the time ipecified therein, the court shall order the defence against eviction to be struck out and shall proceed With the hearing of the suit.

9. Evidently the provision of striking out the defence is attracted only when the tenant fails to comply with the directions as in Sub-section (3) and (4) of Section 13. The case of the plaintiff is based on the ground of second default Prior to the recent amendment in the Act, the provisions for depositing the arrears of rent with interest and regular payment in future were embodied in sub Section (4) and (5) and provision for striking out the defence was embodied in Sub-section (6) of the Section 13. Sub-section (7) prior to the amendment prohibited the Court for passing the decree for eviction on the ground specified in Section 13(1) (a) in case the defendant deposited the amount as required by Section 13(4) and (5). Proviso to Section 13(7) of the Act prior to the amendment (analogous to the proviso of Sub-section (6) after the amendment) read as under:

Provided that a tenant shall not be entitled to any relief under this Sub-section it having obtained such benefit or benefit under Section 13A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months.

10. It clearly creates a hurdle for the defendant to have any advantage under Section 13(4) or (5) prior to the amendment Act and Section 13(3) and (4) subsequent to it in case of his committing default second time. The trial court has therefore, committed an error in striking oat the defence of the defendant, The reason is that power is to be exercised by the Court only when the defendant fails to comply with the directions for depositing the amount under the aforesaid Sub-sections. Mr. Pareekh also does not dispute this position of law.

11. In order to decide the second question involved in this second appeal, it will have to be seen whether there was sufficient material before the court to decree the suit and decide issue No. 1 in favour of the plaintiffs and to pass a decree in their favour. The important point for consideration in the case is whether the defendant could be held a defaulter second time. This is not in dispute that in Civil Suit No. 32/72, appellant had taken the benefit of the provisions of Sub-section (3) and (4) of Section 13 of the Act as its stood at the time and therefore, the suit of the plaintiff was dismissed. Issue No. 2 about the tenancy being yearly or monthly was there in the same form as issue no. 2 in the present suit. That issue was decided in favour of the plaintiff on the ground that the burden to prove the tenancy to be yearly was on the defendant who had not produced any evidence. It was also observed that the tenancy is oral and not in writing and merely by depositing the amount of one year at a time does not make it yearly tenancy.

12. The learned Munsif has not expressed any opinion on the matter in his judgment dated 26-11-77 but has only held that the defendant has committed default again.

13. Mr. Mundhra has emphatically argued that the previous suit was not decided on merits because of the benefit extended to the appellant under Section 13(3)8(4) and therefore, the question whether the tenancy was yearly or monthly remained to be decided in the present suit.

14. It has been contended that if the learned Munsif would not have struck out the defence of the defendant he would have led the evidence on issue No. 2 and if successful in proving the tenancy to be yearly, the question of committing default second time would not have arisen. It has also been argued that because the decision of the previous suit was in favour of the appellant, there was no opportunity to him to challenge the fingings on issue no. 2 and therefore, principle of res judicata is not attracted in the matter.

15. Mr. Pareekh controverting these arguments submitted that in the previous suit, issue no. 2 was decided against the appellant because he had not adduced any evidence to substantiate the contention that the tenancy was yearly and not monthly. It has also been contended by the learned Counsel that taking the tenancy to be monthly, appellant had taken the benefit under sub Section (3) and (4) of Section 13 of the Act at the time and subsequently also during the pendency of the suit was taking the tenancy to be monthly He referred to the receipt issued on behalf of the plaintiff on 6-4-79 in connection with the amount of Rs. 1089/- deposited by the appellant in which the calculation of amount is on the monthly basis.

16. Another argument advanced by Mr. Pareekh is that after the termination of the tenancy by the plaintiffs, contractual tenancy came to an end and the subsequent status of the defendant-appellant was that of a statutory tenant and statutory tenant, is to deposit the amount on the monthly basis and therefore the factum of committing default for a period of six months being there, the plaintiffs suit has beta rightly decreed and there was no necessity for deciding each and every issue in the case.

17. In the light of these arguments, I perused the various authorities cited from both the sides which will be discussed at appropriate place.

18. It would be profitable to mention certain dates and facts in order to decide this question. The previous suit between the parties i.e. suit No. 32/72 was decided on 10-12-75. During the pendency of the suit rent was paid every month as per provisions of the Act and direction of the Court. The defendant-appellant stopped paying the rent from 3-11-75. Thereafter on 23-7-76 he deposited the rent for a year under Section 19A in the Court. The present suit was filed on 4-9-76. If the tenancy is monthly then clearly there is a default in payment for more than six months. If it is yearly then the rent has been paid in advance for a year.

19. First point falling for consideration is whether the decision of Issue no. 2 in the previous suit would operate as res judicata in the present case.

20. In the case of Mst. Asa Bai v. Probhulal and Ors. AIR (sic)00 Rajasthan, 504. While discussing the applicability of Section 11 of the Code of Civil Procedure dealing with the principle of res judicata, it was observed that in a previous suit inter-parties dismissed adverse findings against the defendant can not operate as res judicata against that defendant in subsequent suit because he had no tight of appeal from that finding.

21. Placing reliance on this authority Mr. Mundhra submits that because the previous suit was not decided on merits rather on the ground that the defendant having deposited the amount as per directions of the Court, according to Section 13(3) and (4) of the Act there was no right of appeal to the defendant and so the principle of res judicata will not be applicable for the decision of issue No. 2.

22. When the ultimate judgment is in favour of a particular party, the right to appeal for the points going against him is not available to it. It is this principle which has been enunciated in the case of Corporation of Madras v. P.R Ramchandriah and Ors. : AIR1977Mad25 wherein it has been held that It is well settled that a party not aggrieved by a decree is not competent to appeal against the decree on the ground that an issue is found against him.

23. On the other hand Mr. Pareekh has relied on the principle enunciated in the case of Gangoppa Gurupad pps Gugwad v. Rachawan and Ors. : [1971]2SCR691 it was held in that case that it is open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If however, final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties.

24. From the perusal of the judgment of the previous suit, it is evident that though the court had applied its mind to issue no. 2 and decided the issue in favour of the plaintiffs because of the defendant failing to discharge the burden placed on him for proving that the tenancy was yearly and not monthly, the suit was dismissed only because of the defendant's depositing the amount and agreeing to deposit the same regularly subsequently. Hence merely became of the findings fat issue no. 2, the principle of res judicata will not be applicable in the case.

25. This being the position, the pertinent point for decision is whether there is material on record for the Court to arrive at a conclusion that the tenancy was monthly and for that reason there was no necessity for deciding each issue for decreeing the suit.

26. This is not in dispute that the appellant hid taken the benefit under Section 13(3) and AIR 1952 SC 23 in the previous suit and thereafter went on depositing the rent regularly every month up to 3-11-75 and this led to the argument by Mr. Pareekh that he has thus taken himself to be a monthly tenant. The argument of Mr. Mandara on the other hand is that it does not amount to any admission of the appellant on the point rather he had deposited the rent in view of the directions of the Curt and therefore there is no estoppel for contending that the tenancy is yearly and not monthly.

27. It is from the intention of the parties as inferable from the lease deed that it can be known whether the tenancy is yearly or monthly. In the present case, the tenancy is oral and therefore, the actual terms of the lease contract can not be known. The argument of Mr. Pareekh that in case it would have been yearly there would have been a registered document to that effect and merely by payment of the amount of rent yearly is can not be presumed that the tenancy was yearly is not devoid of force. He has substantiated his contention by placing reliance on the proposition propounded in the case of Ram KumarDas v. Jagdish Chandra Deo, Dhabal Deo and Anr. (4), wherein it has been observed that the stipulation as to payment of annual rent would no doubt raise a presumption that the tenancy was from year to year but being contained in an inoperative document could not come in the way of raising a presumption under Section 106 of the T.P. Act In view of the circumstances of that case it was further observed that a lease for one year certainly could not be inferred from the payment of annnal rent because to do so would be to substitute a new agreement for the parties which they never intended to do.

28. In the present case besides the contention of the appellant there s nothing on record to suggest that intention of the parties was to create also yearly tenancy, and by the fact of paving the rent every year even it can be only said to be for the convenience of the tenant.

29. Relevant it is to note that besides the appellant agreeing to pay monthly rent in the previous suit and coutinuing to do so, there is another provision which shows that the tenancy whatever it might have been in the past became monthly after the order of the Court in the previous suit for depositing the amount monthly. The reason is that after the termination of the tenancy the contract even if any came to an end and the appellant was in possession of the suit premises as a statutory tenant. It is by virtue of the statute that the appellant has been protected from eviction. There is nothing on record to show that subsequent to it there was any assent of Ac respondents for continuing the appellant as tenant, They had to accept the rent because of the hurdle in getting the shop vacated in the absence of any ground available to them under the Act.

30. In the case of Firm Sardari Lal Vishwa Nath and Ors. v. Pirtam Singh AIR 1978 SC 718, their Lordships while discussing the provisions of East Punjab Rent Restriction Act in connection with- (he necessity of notice to the tenant by the landlord after the tenancy, having been terminated and the tenant being clothed with the protection of that Act, have been pleased to observe that there was no necessity for any fresh notice, the reason given is that a statutory tenant is not entitled to notice as envisaged by Section 106 of the TP Act before an action in ejectment is commenced against him under any of the enabling provisions of the relevant Rent Restriction Act.

31. By virtue of the order under the Act in the previous suit the appellant was directed to pay rent every month and therefore there remained no question of payment of rent yearly. Hence the argument of the learned Counsel for the appellant that there was no default in payment of rent for six months when the appellant deposited the amount in advance a few months prior to its becoming dui for the year under Section 19A of the Act is of no help to the appellant. Similarly, the argument that the rent is to be deposited only when it becomes due and in the present case it was to become due after the expiry of full one year also goes away. The reason is that the rent after the termination of the tenancy and the tenant continuing in possession of the suit premises by virtue of protection under the Act became due every month.

32. In this view of the matter no clear decision was required for issue no. 2 regarding tenancy being yearly or monthly. Issues no. 3 and 4 are dependent on issue no. 2. When no further elucidation was required regarding these issues, the failure of the trial court to mention that in his judgment will not in any way make the judgment illegal. In my opinion it would hive been proper if the court would have given the findings on the various issues in this light bat its failure to do so, does not lead to the conclusion that the suit could not be decreed without trial of the issues from the pleadings of the parties. The ultimate judgment was not dependent on any evidence and therefore even in case the court would have decided these issues the result would have been the same.

33. Consequently, it is held that the trial court was wrong in striking out the defence of the defendant but in view of the peculiar circumstances of the case, there was no question of any defence being led, as the matter was quite clear from the facts and circumstances appearing on record and therefore, the suit could be decreed without trial of issues framed in she case.

34. As as a result of above discussion, I find no force in the appeal and it is therefore dismissed but without any order as to costs. Three months time is granted to the appellant to handover the vacant possession of the suit premises to the respondents.


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