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Kesardeo Vs. Smt. Bhooridevi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 440 of 1972
Judge
Reported in1980WLN(UC)171
AppellantKesardeo
RespondentSmt. Bhooridevi and ors.
DispositionAppeal allowed
Cases ReferredChandrasen and Anr. v. Murarilal
Excerpt:
.....13(1)(a)-default. transferee landlord can take advantage of default committed by tenant with previous landlord.;the transferee landlord can take advantage of default committed by the tenant in payment of rent due from him to the previous landlord for bringing his ease within the provisions of section 13(1)(a) of the act.;appeal allowed with costs - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile..........appellante court that the transferee landlord could not take advantage of default in payment of rent to previous landlord was erroneous, in as much as, such a right was available to the transferee landlord. the argument was substantiated by the observations made in the following authorities:-(1) naraindas v. rajendra singh (1972 rlw 100)a plain reading of section 13(1)(a) goes to show that no tenant is entitled to the protection unless he pays the rent due from him at the time prescribed in the act. it does not provide that the landlord for the time being alone is entitled to weaver possession if the rent is not paid. the definition of 'landlord' as extracted above makes the position abundantly clear. it lays down that 'landlord' means any person who for the time being is receiving or.....
Judgment:

S.N. Deedwania, J.

1. This is a second appeal by plaintiff appellant Kesardeo filed against the judgment and decree, dated April 24, 1972 of the learned Additional District Judge. Churu, in Civil First Appeal No. 7 of 1971 by which, the judgment and decree for ejectment passed by the learned Munsif Magistrate, Churu was reversed.

2. The facts relevant to the disposal of this appeal are these. The defendants respondents were the tenants of the suit-house situated in Churu under a rent-note dated March 28, 1945. The tenancy was monthly and rent was payable at Rs. 40/- per annum yearly. On 21-4-66, the plaintiff-appellant purchased the suit house from the original owner and land-lord for a sum of Rs. 5,700/ under a registered sale-deed. On 25-6-66, the plaintiff-appellant gave notice to the defendant for terminating their tenancy with effect from July 27, 1966 or in the alternative, with effect from any date between 20-7-66 to 17-8-66, on which date, the tenancy expired according to them. On 18-10-66, the plaintiff filed a suit for ejectment and far a sum of Rs. 120/- as a(sic)ncare of rent for the last 3 years i.e. from 28-8-63 to 27-8-66. The ejectment was sought on the ground of personal necessity and default in payment of rent by the defendants. The suit was resisted on various grounds and it was alleged that the plaintiff had no right to recover the arrears of rent before the date of sale of the suit premises in his favour and, therefore, the defendants were not defaulters in payment of rent. In the alternative, it was pleaded that rent upto 26-3-66 was paid to previous landlord Chiranjilal. The house was not required by the plaintiff for his reasonable and bonafide necessity. The legality of notice was also challenged and it was asserted that the tenancy was yearly. The learned Munsif held that the tenancy was monthly though the mode of payment of rent was yearly. It was further held by him that the plaintiff had no right to recover the arrears of rent from the defendants due in respect of the period before 21-4-66, the date on which, he purchased the suit premises from the previous landlord Chiranjilal. However, it was found that the defendants were defaulter in payment of rent for more than 3 years to Chiranjilal and, therefore, the plaintiff was entitled to get a decree for ejectment. In this view of the matter, the learned Munsif Magistrate granted a decree for ejectment in favour of the plaintiff. The learned appellate court, in appeal held that the tenancy was yearly because of the judgment of the Civil Judge, dated April 24, 1970, Ex. 2 between the previous landlord Chiranjilal and the defendants. This finding was res judicate between the present parties. Therefore, notice Ex. 9 was invalid. The learned appellate court also agreed with the findings of learned Munsif that the suit premises was not required by the plaintiff reasonable and bonafide for his personal use and occupation. It was further held that the plaintiff could not recover Rs. 120/- the arrears of rent due to Chiranjilal because this right was not given to him by the previous landlord though the finding of the learned Munsif was not disturbed on the fact that this rent was due from the defendants. It was further held that the plaintiff purchased this suit property on 21-4-66 and be filed a suit on 18-10-66. Since, the tenancy was yearly, the defendants were not defaulters in payment of rent to the plaintiff as he bad no right to recover the arrears of rent due to the previous landlord. As such, the plaintiff could not pet the decree for ejectment on the ground of default in payment of rent for 3 years to the previous landlord.

3. I have heard the learned Counsel for the appellant and none was present on behalf of the respondents defendants and perused the record of the case carefully.

4. It was argued by the learned Counsel for the appellant that the question of the validity of notice is of little importance in this appeal because as held by their Lordships of the Supreme Court, the notice under Section 106 of the Transfer of Property Act to the tenant was not necessary before filing of a suit for ejectment on any of the grounds available under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). I am inclined to agree with this contention that no notice is necessary under Section 106 of the Transfer of Property Act determining the tenancy before the filing a suit for eviction by the landlord against the tenant. It was thus observed in Dhanapal Chettiar v. Yesodal Ammal : [1980]1SCR334 .

In order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 T.P. Act. Determination of a lease in accordance with the Transfer of Property-Act is unnecessary and a mere surplusage became the landlord cannot get eviction of the tenant even after such determination The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the T.P. Act. On the question of requirement of such a notice under Section 106 T.P. Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that Section 106 of the TP Act merely providing for termination of a lease either by the leasor or the lessee by giving the requisite notice it an extra protection against eviction. The purpose of this provision is is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated.

5. It was next argued that the view taken by the first appellante court that the transferee landlord could not take advantage of default in payment of rent to previous landlord was erroneous, in as much as, such a right was available to the transferee landlord. The argument was substantiated by the observations made in the following authorities:-(1) Naraindas v. Rajendra Singh (1972 RLW 100)

A plain reading of Section 13(1)(a) goes to show that no tenant is entitled to the protection unless he pays the rent due from him at the time prescribed in the Act. It does not provide that the landlord for the time being alone is entitled to weaver possession if the rent is not paid. The definition of 'landlord' as extracted above makes the position abundantly clear. It lays down that 'landlord' means any person who for the time being is receiving or is entitled to receive the rent of any premises Reading both the provisions together it is manifest that in order to be able to grant protection to the tenant against ejectment, the Court must be satisfied that the tenant had paid the amount of rent which was due to him as contemplated by Section 13(1)(a). It is not a question of transfer of benefit of default by the previous landlord to his successor but of the tenant claiming protection under the Act. In this view of the matter if the court is satisfied that the tenant has neither paid nor tendered the amount of rent due from him to the previous landlord who was entitled to receive the rent, he will be deemed to have incurred the liability to be ejected and would not be entitled to protection under the Act, irrespective of the fact that the premises along with the arrears of rent have been transferred by the previous landlord. Of course, it is not the defendant's case that the previous landlord had waived such default.

As a result of the foregoing discussion, I am of the opinion that the defendant-tenant had committed default in payment of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. He could have saved himself from ejectment and avoided the consequences of the said default only by making an application and depositing the arrears of rent together with interest as provided in Section (sic)is (4) of the Act on the first late of hearing. As he did net do so, there was no other course open to the Court but to decree the suit for ejectment.

(2)Chandrasen and Anr. v. Murarilal (1976 WLN 65)

The learned Counsel for the appellants has urged that the case of Narain Dass (1) is not applicable to the facts of the present case because in that case, the plaintiff not only purchased the property, but also purchased the rights to recover the arrears of rent due from the tenant upto the date of the purchase. In my opinion, this distinction is of no assistance to the appellants. Lodha Judge has clearly laid down that in case the tenant has neither paid nor tendered the amount of rent due from him to the previous landlord, who was entitled to receive the same, he will be deemed to have incurred the liability to be ejected and would not be entitled to protection under the Act irrespective of the fact that the premises along with the arrears of rent have been transferred by the previous landlord. In the present case, it is not a question of transfer of benefit of default by the previous landlord to his transferee. The main question that arises is whether the tenant can claim protection under the provisions of the Act. The question, therefore, whether the arrears of rent have been transferred or not, is of no consequence unless of course the defendant's case was that the previous landlord had waived such default. In absence of such a defence, I am in respectful agreement with the view taken by my learned brother Lodha Judge in Narain Dass's case (1) and hold that the transferee landlord can take advantage of the default committed by the tenant in payment of rent due from him to the previ us landlord for bringing his case within the ambit of Section 13 (1) (a) of the Act.

6. I am in respectful agreement that the observations made in the aforesaid authorities. It was not the case of the defendants that the previous landlord had waived such default in payment of rent. I, therefore, bold that the transferee landlord can take advantage of default committed by the tenant in payment of rent due from him to the previous landlord for bringing hit case within the provisions of Section 13(1)(a) of the Act.

7. There is finding of fact in favour of the plaintiff appellant that the defendants have made default in payment of rent for atlast 3 years to the previous landlord. The plaintiff appellant is, therefore clearly entitled for a decree for eviction on the ground of default in payment of rent more than 6 months.

8. In the result, the appear is accepted and the judgment and decree of the first appellate court is set aside and the judgment and decree passed in favour of the plaintiff appellant by the trial court is restored. The plaintiff-appellant shall get the costs of this Court and the first appellate court from the defendants respondents, who are, however, allowed 2 month's time to vacate the premises.


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