Mahavir Jain vs Dargah Committee

Mohammad Rafiq, J.—This is defendant''s second appeal against judgment and decree dated 18.10.2006 passed by learned Additional District Judge No. 2, Ajmer, whereby the judgment and decree passed by learned Civil Judge (Junior Division) South, Ajmer, was upheld. The learned court below decreed the suit for eviction filed by the plaintiff-respondent against the defendant-appellant. Plaintiff-respondent filed a suit asserting that shop in question was let out to defendant on rent at the rate of Rs. 275/- per month. The rent was to be paid on 1st of every month. The tenancy commenced from 1st of every month. The rent-note dated 21.08.1992 was executed for eleven month. Even after expiry of that period, the defendant remained in possession of the suit premises as tenant, but he was habitual in making default in payment of rent. A total of Rs. 6600/- became due towards rent. The plaintiff served a notice u/s 106 of the Transfer of Properties Act, 1882, on the defendant on 17.09.2001 and determined the tenancy, therefore, it was prayed that the decree of eviction may be passed.

The defendant contested the suit and filed written statement. Though he admitted his status as that of a tenant of the plaintiff but denied execution of rent-note. It was averred that father of the defendant was in possession of one shop and on ''nohra'' even prior to 1980 as tenant. That shop was in tenancy of his brother. The defendant has asserted that he sent the rent by money order till January, 2002. He sent cheque of rent also but the plaintiff did not deliberately accept the payment by cheque. The plaintiff themselves were responsible for the delay. The learned trial court framed issues. Issue No. 1 was whether the plaintiff is a cooperative society, which has been constituted under the Dargah Khwaja Saheb Act, 1955 and the disputed property is exempt under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, ''the Act of 1950''). Issue No. 2 was whether the plaintiff has terminated the tenancy vide notice dated 17.09.2001 in accordance with the law. Issue No. 3 was whether the roof is included in the disputed premises. Issue No. 4 was whether the suit is liable to be dismissed as the plaintiff is not liable to any relief except the relief mentioned in para No. 8 of the written statement. Issue No. 5 was as to what is the effect of the rent-note executed between both the parties dated 21.08.1992, on the suit. Issue No. 6 is about the relief.

Learned trial court on the evidence of the parties decided all the aforesaid issues in favour of the plaintiff and against the defendant and therefore directed his eviction. During pendency of this appeal, an application was filed by the appellant under Order 41 Rule 27 of the CPC seeking to place on record photostat copies of the documents purported to be the application addressed to Nazim, Dargah Khwaja Saheb, Ajmer, and photo-stat copy of the Cheque dated 14.09.2001 in his name drawn on Punjab & Sind Bank, and receipt of the registered letter dated 14.09.2001 and the Acknowledgment Receipt dated 14.09.2001.

Learned counsel for appellant has argued that these documents are very important because the appellant has paid the rent of Rs. 6050/- by aforesaid Cheque, which was for the period from 01.12.1999 to 30.09.2001 and sent the same by registered post on 14.09.2001. The notice for determination of tenancy was therefore based on unfolded premises. Therefore, the documents be considered and the suit be dismissed. It was argued that both the courts below have erred in law in deciding the issue No. 1 against the defendant-appellant that the suit property was exempt from applicability of the Act of 1950. Service of notice could not be proved only by way of obtaining a letter from the post office. They failed to appreciate that defendant was in possession of the disputed premises and therefore the said clause would not apply for tenancy which started prior to Dargah Khwaja Saheb Act, 1955 was enforced. The plaintiff failed to produce AD receipt and therefore the finding recorded by the learned trial court that the notice u/s 106 of the Act was served upon the defendant, was wholly perverse. The rent was in fact paid to the plaintiff. If deliberately they did not get the Cheque encashed, it cannot be said that the defendant was at fault. The postman was not examined to prove the receipt and no permission was sought to lead secondary evidence.

Learned counsel, in support of his argument that the notice was not received, relied on the judgment of the Supreme Court in A. Rama Rao and Others Vs. Raghu Nath Patnaik and Others, It is argued that evidence of the plaintiff could not be accepted on the statement of his power of attorney holder. In support of this argument, learned counsel has relied on the judgment of the Supreme Court in The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, Learned counsel also cited the rent-note was required to be registered and if it was not registered it cannot be held in evidence. He has relied on the judgment of this court in Ganpat Mal Dhariwal Vs. Sukhraj and Another,

The findings on all these issues are perverse and therefore despite the concurrent judgments, this court in the scope of second appeal cannot be interfered with.

Per contra, Shri J.C. Jain, learned counsel for the plaintiff-respondent, opposed the appeal and submitted that the defendant has failed to produce in evidence any document at the first time produced and that too in photo-stat copies, cannot be accepted in evidence. Though the justification given by the appellant as to how despite exercise of due diligence, he could not produce those documents before the trial court. Order 41 Rule 27 CPC cannot be invoked particularly when alleged documents are sought to be produced with an application filed on 15.10.2010 whereas the suit in the present case was filed in 2002 and the suit was decreed on 22.11.2004. The learned counsel argued that even otherwise, the defendant has taken inconsistent pleas than what is pleaded in para 5 of the written statement that he offered and the defendant did not accept payment. Now by application under Order 41 Rule 27 CPC he is seeking to assert that the payment of the rent was made. In any case the protection available to the ordinary tenant is not available to the properties of Dargah Committee, which being governed by the Central enactment, is exempt from applicability of the Act of 1950. Learned counsel, in this respect, cited number of judgments passed by coordinate benches of this court with regard to properties of the Dargah Committee. The issue about exemption to the properties of Dargah Committee has been decided against the defendant. Such judgment in similar matter by this court has become final with the dismissal of SLP by the Supreme Court in Special Leave to Appeal (Civil) No. 1226/2007 - M/s. N. Ramchandra Th. Hotchand (D) Through LRs v. Durgah Committee, dismissed on 31.01.2007. Similar second appeals have been dismissed by this court being S.B. Civil Second Appeal No. 37/2007 - Nathu Mal @ Bhagwan v. Dargah Committee, Ajmer, decided on 09.04.2007, S.B. Civil Second Appeal No. 591/1998 - Sugan Chand v. Dargah Committee, Ajmer, decided on 06.02.2006, S.B. Civil Second Appeal No. 474/2006 - Kanhaiya Lal v. Dargah Committee Ajmer, decided on 05.10.2006, S.B. Civil Second Appeal No. 156/2007 - Harish Chandra v. Dargah Committee, Ajmer, decided on 14.02.2007, S.B. Civil Second Appeal No. 475/2006 - M/s. Nihalchand Ramchandra v. Dargah Committee, Ajmer, decided on 04.12.2006, S.B. Civil Second Appeal No. 476/2006 - M/s. Tillu Mal v. Dargah Committee, Ajmer, decided on 30.10.2006, and S.B. Civil Second Appeal No. 476/2006 - M/s. Tillu Mal v. Dargah Committee Ajmer, decided on 05.10.2006, however, in some of them, the court was persuaded to grant reasonable time to vacate the suit premises. The finding on the question of service of notice as also payment of rent, being finding of fact, are not permitted to be interfered by this court in the second appeal.

On hearing learned counsel for the parties and perusing the material on record, this court is not inclined to uphold the argument raised by the learned counsel for the appellant. The finding on the question of service of notice is essentially a finding of fact. The notice was sent to the defendants by registered post. He has admitted that the notice (Exhibit-2) was sent at the correct address. The defendant-appellant himself in his statement as DW-1 has admitted that this was is address and had the letter been sent to him on this address, he would have received the same. He stated that he had no dispute with the postman of the area. The Post master of the area concerned vide Exhibit-5 has certified that the notice was served upon the defendant. Thus, it was sent on the address, which was admitted by the defendant. As regards the payment of rent, and whether or not the plaintiff made payment of rent, it is again a question of fact. The defendant in para 5 of the written statement has pleaded that he sent the payment by Cheque but the plaintiff did not receive. Now by filing the document at this stage in second appeal before this court, he is seeking to prove that the payment was made and he was not at default. Such a plea cannot be accepted especially when raised on this belated stage. As regards the contention that power of attorney could not appear in place of plaintiff, it is to be noted that the suit has been filed by Dargah Committee, Ajmer, and it is a body corporate and therefore it is but natural that somebody will represent the Committee before the Court. Regarding the rent-note, the defendant has himself admitted before the trial court the execution of the rent-note, therefore, he now cannot dispute the existence of the same. The very fact that the plaintiff is now seeking to prove that he sent the rent for the period from 01.12.1999 to 30.09.2001, clearly goes to show that he remained in default for a very long time. All these are questions of fact. The defendant-appellant not being entitled to a protection under law, he has to vacate the premises, particularly when both the courts have concurrently decided against him. However, in the interest of justice, this court deems it appropriate to grant him time upto 14.07.2014 to vacate the suit premises subject to following terms and condition:--

the defendant-appellant shall within one month from today pay entire arrears of rent or deposit the same in their bank account and shall further continue to pay or deposit the monthly rent by 15th day of each succeeding month or in advance to the plaintiff-respondent.

the defendant-appellant shall handover the vacant possession of the rented premises to the plaintiff-respondent on or before 14.07.2014 without requiring them to file the execution petition.

the defendant-appellant shall not sub-let, assign or part with the possession of the rented premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period.

the defendant-appellant shall file a written undertaking incorporating the aforesaid three conditions, before the trial court within a period of one month from today.

It is made clear that in case the defendant-appellant does not comply with any of the aforesaid conditions, then it will be open for the plaintiff-respondent to get the decree passed in his favour executed even before the aforesaid date. With aforesaid terms, conditions and directions, the second appeal is accordingly dismissed.