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Mohammed Shafi Vs. Mst. Lajwanti Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 139 of 1985
Judge
Reported in1986(2)WLN339
AppellantMohammed Shafi
RespondentMst. Lajwanti Devi and ors.
DispositionAppeal allowed
Cases ReferredAct. In Ganpat Chand v. Jethmal
Excerpt:
.....of rent & eviction) act, 1950--section 13(1)--suit for eviction--tenant not filing written statement--trial court decreeing plaintiff's suit--held, trial court acted erroneously and contrary to provisions of section 13(1)--trial court could not pass decree for ejectment through it could pass order under order 8, rule 10.; the trial court did not record any evidence at all. even the plaintiff's statement was not recorded at all and immediately on failure of the defendant to file the written-statement, the trial court proceeded to pronounce the judgment and pass a decree of ejectment in favour of the plaintiffs landlord evicting the tenant from the premises in question. thus, the procedure adopted by the trial court was wholly erroneous and it was contrary to the express provisions..........affect the power and jurisdiction of the court to pass a decree or make any other evicting the tenant from a premises, unless it is satisfied that one of the conditions specified in any of the sub-clauses of section 13(1) is fulfilled. thus the decree for eviction passed by the trial court is erroneous on the face of it and deserves to be set aside.5. the learned counsel for the respondent-landlord also submits that the first appeal was barred by limitation. the first appellate court also decided the appeal and has upheld the decree for ejectment passed by the trial court. it would be proper to set aside the decree for ejectment in the present case which is contrary to the provisions of section 13 of the act. in ganpat chand v. jethmal 1983 rlr 143, it was held by this court that.....
Judgment:

Dwarka Prasad Gupta, J.

1. In this appeal the only point pressed by the learned Counsel for the appellant is that the trial court decreed the plaintiff's suit for ejectment and recovery of arrears of rent without satisfying itself as to whether the conditions specified in one of the clauses of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (here in after referred to as 'the Act') has been fulfilled.

2. The defendant tenant failed to file the written statement although several opportunities were given to him since July 7, 1982. On January 4, 1983, the counsel for the defendant appeared before the trial court and pleaded that the defendant was not present and no body was prepared to proceed with the case on behalf of defendant. The written-statement was not filed by the defendant on the date fixed and the trial court proceeded under Order 8, Rule 10,CPC and pronounced the judgment against the defendant and decreed the plaintiff's suit on that very day i.e. January 4, 1983. Order 8, Rule 10, CPC runs as under:

Where any party from whom a written-statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and upon such judgment, a decree shall be drawn up.

3. The aforesaid provision gives wide direction to the court either to pronounce the judgment or to make such order in relation to the suit as it thinks fit in case the defendant fails to file the written-statement within the time permitted or fixed by the Court. In the present case, there is no dispute that the defendant had failed to file written-statement within the time permitted or on the date fixed by the court and as such, the trial court was entitled to proceed with under Order 8, Rule 10, CPC. But the question which arises as to whether the discretion exercised by the trial court in proceeding with the pronouncement of judgment against the defendant could be justified, in a suit for ejectment which is governed by the provision of Sub-section (1) of Section 13 of the aforesaid Act. Sub-section (1) of Section 13 of the Act runs as under:

(1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by this Act, unless it is satisfied--

(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or

(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the premises; or

(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court has materially altered the premises or is likely to diminish the value thereof; or

(d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's interest therein; or

(e) that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole of any part of the premises without the permission of the landlord; or

(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condone the conduct of the tenants; or

(g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or

(h) that the premises are required reasonably and bonafide by the landlord--

(i) for the use or occupation of himself or his family; or

(ii) for the use or occupation of any person for whose benefit the premises are held; or

(iii) for a public purpose; or

(iv) for philanthropic use; or

(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or

(j) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or

(k) that the landlord requires the premises in order to carry out any building work.

(i) at the instance of the State Government, in persuance of an improvement scheme or development scheme; or

(ii) because the premises have become unsafe or unfit for human habitation; or

(iii) upon the requisition of a local authority; or

(l) that the landlord has been required by any authority under any law to abate the overcrowding of the premises.

4. It is clear that the aforesaid section begins with non-obstante clause and the provisions of Section 13 shall prevail inspite of any thing contained in any law or contract. The provision of Section 13 prohibits a court from passing any decree or making any order in favour of a landlord evicting the tenant unless one of the conditions as specified in one of the Clauses (a) to (1) is fulfilled and so long as the tenant is ready and willing to pay rent for the premises for the full extent allowable by the Act. In the present case, the provisions of Order 8, Rule 10 CPC, so far as they allow the court to pronounce judgment at once on the failure of the defendant to file a written-statement on the date fixed by the court could not prevail and cannot be given effect to on account of over riding provisions of Section 13(1) of the Act. A decree for ejectment of a tenant, in such areas to which the Act applies can only be passed by a court if one of the conditions as specified in Section 13(1) is satisfied and not otherwise. The trial court did not consider this aspect of the matter and although the suit was governed by the provisions of Section 13(1) of the Act as it was a suit for ejectment and recovery of arrears of rent from the tenant in respect of premises situated at Kota where the Act is applicable. As such the decree for ejectment could only be passed if the trial court could have been satisfied on evidence Jed before it in respect of one of the grounds contained in Section 13(1) of the Act. In the instance case, the trial court did not record any evidence at all. Even the plaintiff's statement was not recorded at all and immediately on failure of the defendant to file the written-statement, the trial court proceeded to pronounce the judgment and passed decree of ejectment in favour of the plaintiffs landlord evicting the tenant from the premises in question. Thus, the procedure, adopted by the trial court was wholly erroneous and it was contrary to the express provisions of Section 13(1) of the Act, which have overriding effect over the provisions of other laws including the Civil Procedure Code because of the non-obstante clause with which Section 13 begins. More over, the provisions of Section 13 are couched in a negative language and the provisions of this section affect the power and jurisdiction of the court to pass a decree or make any other evicting the tenant from a premises, unless it is satisfied that one of the conditions specified in any of the Sub-clauses of Section 13(1) is fulfilled. Thus the decree for eviction passed by the trial court is erroneous on the face of it and deserves to be set aside.

5. The learned Counsel for the respondent-landlord also submits that the first appeal was barred by limitation. The first appellate court also decided the appeal and has upheld the decree for ejectment passed by the trial court. It would be proper to set aside the decree for ejectment in the present case which is contrary to the provisions of Section 13 of the Act. In Ganpat Chand v. Jethmal 1983 RLR 143, it was held by this Court that Order 8, Rule 10, CPC gives a wide discretion to the court and the court may pass a reasonable order after consideration the circumstances of each case where the defendant has failed to file the written statement. In the present case, as I have already observed above, the court was not entitled to pronounce the judgment and pass a decree for ejectment because of the provisions of Section 13 of the Act but the trial court could make such other order in pursuance of the provision of Order 8, Rule 10, CPC in relation to the suit as it might have thought fit when the defendant failed to file the written-statement on the date fixed and within the time allowed to him by the trial court to do so. It would not be proper to send the case back now to the trial court to make such order in relation to the suit as it thinks fit under Order 8, Rule 10, CPC. Counsel has pointed out that the trial court is entitled to pronounce judgment immediately if there is material on record to satisfy the court regarding the facts and circumstances about the existence of one of the grounds contained in Section 13(1) of the Act. No doubt the proceedings have been delayed on account of the conduct of the defendant, yet I am of the view that the first appellate court was not justified in dismissing the appeal of the defendant tenant on the ground of limitation as sufficient cause or the delay in filing the appeal has been proved. The appeal deserves to be allowed. However, the defendant should be saddled with costs for the dilatory attitude adopted by him and Rs. 200/- should be awarded by way of costs to the plaintiff-respondent.

6. In the result, the appeal is allowed, the decrees passed by both the lower courts are set aside and the proceedings in the suit are restored and the same shall be proceeded with from the stage at which the proceedings stood on January 4,1983. The trial court is directed to proceed with the hearing of the suit expeditiously within a period of one year.

7. There will be no order as to costs.


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