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Smt. Kesardevi Vs. Rameshwarlal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 29 of 1974
Judge
Reported in1977WLN(UC)150
AppellantSmt. Kesardevi
RespondentRameshwarlal
DispositionAppeal dismissed
Excerpt:
rajasthan premises (control of rent & eviction) act 1950 - section 13(1)(h). bona fide necessity--no proof of comparative hardship--held, order of remand passed by addl. d.j. needs no interference.;appeal & cross-objection dismissed - - dis-satisfied with the said decree both the parties went in appeal to the court of additional district judge, churu. 8. in the result the appeal and the cross-objection both fail and they are dismissed. since the defendant has already paid costs of the suit upto this court i pass no order as to costs in the appeal as well as in the cross objection......here that on the date, the suit was instituted by the plaintiff the rajasthan premises (control of rent & eviction) act 1950 was not made applicable to the town of rajgarh. but during the pendency of the suit on 30.3.1967 the said act was made applicable to rajgarh town. the defendant contested the suit on various grounds which would be clear from the following issues framed by the trial court:1 vk;k eqnbz;] nqdku tsj cgl dk ekfyd gs vksj og izfroknh dks csn[ky djkus dh eq'rgd gs 2 vk;k nqdku tsj cgl dh fdjk;snkjh egokjh gs vksj izr;sd fgunh ekl dh lqnh 5 ls 'kqq: gksdj lqnh 4 rd gksrh gs a3 vk;k okfnuh dk fdjk;k nqdku :i;s 600 izfroknh nh es ckdh ugh gs4 vk;k okfnuh 600 :ik;s crksj gtjtkuk o blrseky ik ldus dh vf/kdkj.kh gs5 vk;k uksfvl okfnuh rk0 29&9&66 dkuwuu nq:lr ugh gsa 6 vk;k.....
Judgment:

S.N. Modi, J.

1. This is an appeal by the landlord in a suit for eviction and recovery of arrears of rent.

2. The dispute relates to a shop situated in the town of Rajgarh, District Churu. The plaintiff let out this shop to the defendant on annual rent of Rs. 400/-. The defendant paid rent of the shop up to June 1961. No rent was paid thereafter by the defendant. The plaintiff, therefore, issued notice terminating the tenancy and brought the suit on 8.4.1966 for eviction and claim-ed arrears of rent for the past three years amounting to Rs. 1200/-. It may be mentioned here that on the date, the suit was instituted by the plaintiff the Rajasthan Premises (Control of Rent & Eviction) Act 1950 was not made applicable to the town of Rajgarh. But during the pendency of the suit on 30.3.1967 the said Act was made applicable to Rajgarh town. The defendant contested the suit on various grounds which would be clear from the following issues framed by the trial court:

1 vk;k eqnbZ;] nqdku tsj cgl dk ekfyd gS vkSj og izfroknh dks csn[ky djkus dh eq'rgd gS

2 vk;k nqdku tsj cgl dh fdjk;snkjh egokjh gS vkSj izR;sd fgUnh ekl dh lqnh 5 ls 'kqq: gksdj lqnh 4 rd gksrh gS A

3 vk;k okfnuh dk fdjk;k nqdku :i;s 600 izfroknh nh es ckdh ugh gS

4 vk;k okfnuh 600 :Ik;s crkSj gtjtkuk o bLrseky ik ldus dh vf/kdkj.kh gS

5 vk;k uksfVl okfnuh rk0 29&9&66 dkuwuu nq:Lr ugh gSA

6 vk;k izfroknh nqdku tsj cgl dk ijekusUV gS vkSj vxj ,slk gS rks blds nkos ij D;k vlj gS

7 nknjlh

3. The trial court on consideration of the evidence led by the parties held that the plaintiff was the owner of the shop and that the defendant was not able to prove that he was a permanent tenant of the suit shop. On the validity of the notice, the trial court held that the counsel who sent the notice had no authority to send such notice. The trial court on the findings arrived at by it passed a decree for Rs. 1200/- as arrears of rent and dismissed the suit for ejectment. Dis-satisfied with the said decree both the parties went in appeal to the court of Additional District Judge, Churu. The learned Additional District Judge after hearing the parties passed the following order:

Accordingly, I allow both the appeal and set aside the judgment and decree of the learned trial court and remand the case back with the directions that it shall frame the additional issues on the grounds of ejectment taken by the plaintiff in his plaint and it shall give an opportunity to the parties to lead their respective evidence on those additional issues. If the plaintiff wants to take the additional grounds for ejectment he may do so by moving an amendment application in the trial court, which shall dispose it of in accordance with law. The trial court shall decide the case afresh on all the issues. The evidence recorded till now shall be taken as evidence for this purpose. The parties shall bear their own costs of both the appeals. Parties are directed to appear before the lower court on 23-1-1974.

4. It is against this decree that the plaintiff has preferred this appeal and the respondent has filed cross-objection. The main ground at the time of filing the appeal was that the lower appellate court should have passed a decree for eviction on the basis of default committed by the defendant in payment of rent under Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, as it was proved that the defendant had neither paid nor tendered rent for a period more than six months. But fortunately for the defendant that ground is no longer available to the plaintiff. During the pendency of the appeal in this Court the Rajasthan Premises (Control of Rent and Eviction) Act was amended on 29-9-1975 by Ordinance No. 26/1975. This Ordinance was later on adopted by the Legislature in the form of Amendment Act No. 14 of 1976. In pursuance of the new amendment, the defendant moved an application under Section 13A(b) of the amended Act for determination of arrears of rent, interest thereon & costs of the suit. This Court vide its order dated 8-7-1976 determined the rent as provided under Section 13A(b) and directed the defendant to pay or deposit the determined amount within one month. The defendant deposited the amount in court within the pressed time.

5. Section 13A(b) provided that on payment of the amount determined by the court within the time fixed the proceedings shall be disposed of as if tenant had not committed any default. In the circumstances, the plaintiff is no longer entitled to a decree for eviction on the ground of default in pament of rent. Since the main ground taken up by the plaintiff in her appeal has become un-sustainable, the learned Counsel for the appellant rightly did not press for eviction of the defendnat on the ground of default of payment of rent.

6. The learned Counsel for the appellant has next contended tht the decree for eviction be passed on the ground of personal necessity but that ground too cannot be pressed in view of the Amending Act which requires proof of comaprative hardship before passing a decree on the basis of personal necessity. In the circumstances, the order of remand passed by the learned Additional District Judge needs no interference.

7. I now take up the cross objection filed on behalf of the defendant. The learned Counsel for the defendant-respondent submits that the order of the learned Additional District Judge directing the lower court to frame additional issues is wholly unwarranted in as much as there is no ground in the plaint on which eviction can be calied by the plaintiff. I find no substance in the above contention. The learned Additional District Judge has directed the trial court to frame issues on the pleadings of the parties as they exist or as they would exist is amendment of plaint is allowed. In case there are no pleadings on which eviction of the defendant can be claimed, no issue will be framed and if any such issue is framed it will be open for the defendant to make an application for striking out that issue. No other point has been pressed on behalf of the defendant.

8. In the result the appeal and the cross-objection both fail and they are dismissed. Since the defendant has already paid costs of the suit upto this Court I pass no order as to costs in the appeal as well as in the cross objection.


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