Om Parkash vs Sharma Electric Company

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for eviction and arrears of rent was decreed by the trial Court, but dismissed in appeal.

The Plaintiff filed the suit on the plea that he was the owner of the house wherein the Defendant was a tenant of one room at a monthly rent of Rs. 40/. It was pleaded that the Defendant had not paid the rent from September 1. 1970 to June 30. 1972 ; hence the claim far his eviction from the room and the arrears of rent amounting to Rs. 880/-. The suit was filed on July 29, 1972 and was contested by the Defendant inter alia on the ground that the Plaintiff had entered Into an agreement to sell the house on September 9, 1970 for Rs. 9,250/- and that Rs. 1,230/- were taken by him as carnets money. The said agreement to sell is Exhibit D 1 According to the Defendant, after the execution of the said agreement, there was no relationship of landlord and tenant between the parties and as such, the Plaintiff was not entitled to recover the arrears of rent or to claim possession of the premises, in question. In the replication filed on behalf of the Plaintiff it was pleaded that the Defendant had failed to comply with the terms of the agreement to get the sale deed executed. It was farther asserted that the suit for claiming the eviction and the arrears of rent was maintainable. The trial Court found that the Plaintiff was the owner of the house, in dispute, and that the Plaintiff was entitled to claim the arrears of rent at the rate of Rs. 40/- per month, amounting to Rs. 880/-. As regards the agreement to sell, Exhibit D-1, it was found that the same was entered into by the parties and that a sum of Rs. 1,250/- was given as earnest money. In view of these findings, the Plaintiff''s suit was decreed both for the eviction of the tenant as well as for the recovery of the arrears of rent amounting to Rs. 880/-. In appeal, the leaned Additional District Judge relying upon the provisions of Section 53-A of the Transfer of Property Act (hereinafter called the Act), came to the conclusion that on September 9, 1970, i.e., on the date of the execution of the agreement, Exhibit D-1, the relationship of landlord and tenant ceased to exist and, therefore, the Plaintiff was not entitled to claim the decree for eviction on the basis of the relationship of landlord and tenant between the parties, nor could he claim the rent for the period after September 9, 1970. According to the lower Appellate Court, the Plaintiff was entitled only to claim rent for eight days, i.e., from September 1, 1970 to September 8, 1970, which at the rate of Rs. 40/- per month would come to 10 66. In view of this finding, the decree of the trial Court was set aside and only a decree for Rs. 10 66 was passed in favour of the Plaintiff Dissatisfied with the same, the Plaintiff has filed this second appeal in this Court.

The Learned Counsel for the Appellant contended that in the written statement, the Defendant never pleaded that he had performed or was ready and willing to perform his part of the contract, which is a condition precedent for claiming the benefit of Section 53-A of the Act. Thus, argued the Learned Counsel, the finding of the lower appellate Court in this behalf was wrong and misconceived. Reliance in this behalf was placed on Bhagwandas Parsadilal Vs. Surajmal and Another, and Dhanna Singh and Another Vs. Malkiat Singh and Others,

After going through the pleadings of the parties and the evidence on the record, I am of the opinion that the whole approach of the lower appellate Court is wrong, illegal and misconceived. In the written statement, the Defendant never pleaded that he had performed or was willing to perform his part of the contract. Unless this case was pleaded the provisions of Section 53 A of the Act were not attracted. Admittedly, the Defendant never filed any suit for the specific performance of the agreement on the basis, of the agreement, Exhibit D-1. Under the circumstances, the amount of Rs. 1230/- paid as earnest money will stand forfeited. The other findings of the trial Court were affirmed by the lower appellate Court in appeal.

In this view of the matter this appeal succeeds. The judgment and decree of the lower appellate Court are set aside and that of the trial Court decreeing the Plaintiff''s suit are restored with costs.