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Judgment
This S.B. Civil Regular First Appeal under Section 96 CPC has been filed against the judgment and decree dated 18.05.2016 passed by the Additional District Judge, Merta in Civil Original Suit No.114/2015 (28/2008) Prashant Soni Vs. Sanwar Mal.
Briefly stated, the respondent-plaintiff filed a suit for possession and recovery of rent/mesne profit against the appellant-defendant alleging therein that the respondent-plaintiff owned a property described in para No.2 of the plaint, which was purchased by him from the predecessor in title Shanti Lal - Hema Ram vide registered sale-deed dated 01.09.1993 and the information of such transaction was given to the respondent-defendant. The respondent-defendant is a tenant in one shop in-front-of M/s. Sona Cold Storage situated in the southern side and he was paying rent @ Rs.200/-. Since 1998, the tenant was paying rent @ Rs.800/- per month and since April 2000, the tenant was paying rent @ Rs.1,000/- per month, which was paid up to March, 2003. The rent payable was not paid since 01.03.2003 @ Rs.1,000/- per month, therefore, the payable rent is due after filing the suit, i.e. 31.05.2007. It was further alleged that the respondent-plaintiff has bonafide personal need of the shop in question. The tenancy was at wll, hence the respondent-plaintiff served a notice dated 10.05.2007 to the appellant-defendant and tenancy is terminated w.e.f. 31.05.2007. The said notice was received by the appellant-defendant, however, the appellant-defendant replied to the said notice alleging therein false and wrong facts, therefore, since 31.05.2007, the tenant is in possession of shop in question as trespasser. The respondent-plaintiff also claimed arrears of rent, mesne profit and prayed for eviction against the appellant-defendant.
The appellant-defendant filed written statement to the plaint and it was contended that Rent Control Act, 2001 has come into force in all the municipal areas of Rajasthan. The old tenancy of the tenant was admitted by him, however, it was submitted that the rate of rent alleged by the respondent-plaintiff is false and concocted, in fact the tenant has paid last rent to the previous landlord @ Rs.65/- per month on Beshakh Badi Navami Samwat
2049. The initial rent was Rs.38/- and Rs.2/- was house tax payable to the previous landlord Firm M/s. Banki Das Mool Raj, which was enhanced up to Rs.65/- per month. It was also contended that the appellant-defendant paid rent to the respondent-plaintiff upto March, 2004. It was submitted that the landlord has denied to issue rent receipt in pursuance of paid rent despite the tenant has tendered, therefore, the tenant has sent payable rent by money-order since April 1, 2004 to May 31, 2007 @ Rs.65/- per month but the respondent-plaintiff has refused to accept the same. Hence, it is evident that the appellant-defendant was throughout ready and willing to pay payable rent but the respondent-plaintiff did not accept with ulterior motive and, therefore, the appellant-defendant cannot be termed as defaulter in payment of rent. He has denied the bonafide need of the respondent-plaintiff. Under the special plea, it was submitted that the Rent Control Act, 2001 has come into operation in the municipal areaof Merta, therefore, suit is not maintainable. It was further submitted that the appellant-defendant is ready and willing to pay the payable rent and also sought detail of bank account of the respondent-plaintiff to deposit payable rent by serving reply cum notice to the respondent-plaintiff dated 10.05.2007, but deliberately, the respondent-plaintiff did not do so and filed the suit which is baseless.
On the basis of the pleadings of the parties, the trial court framed as many as seven issues and after trial of the suit, decreed the same vide judgment and decree dated 18.05.2016.
Being aggrieved of the same, the appellant-defendant has preferred this appeal.
It was contended that trial court has committed serious illegality while deciding issue No.5 relating to jurisdiction of the learned court below. It was submitted that looking to the nature of dispute and material evidence available on record, it is evident that issue No.5 ought to have been decided at the first instance. If the learned trial court has considered the material evidence, which is rightly considered during the course of adjudication of issue No.1, wherein the learned trial court found that payable rate of rent was Rs.65/- per month, then if entire material evidence is to be considered, the conclusion would have been that the suit is not triable by the learned trial court and ought to have been returned to file before the competent court If this issue was decided at the first instance, then there was no occasion to decide other issues on merit. It is evident from perusal of record that the suit itself was not maintainable.
It was further contended that a bare perusal of record makes it clear that notice Ex.3 is bad in law and invalid in view of adjudication of issue No.1, therefore, issue No.3 ought to have been decided against the respondent-plaintiff. The issue No.3 otherwise does not deserve to be decided in favour of the respondent-plaintiff because the payable rent as correctly found by the learned trial court, while deciding issue No.1, was tendered and sent by money-order to the respondent-plaintiff by the appellant-defendant before filing the suit and serving the notice, which is available on record as Ex.3A, Ex.4A and other money-order dated 18.12.2007 as Ex.5A, money-order dated 11.11.2008 Ex.6A, money order dated 11.06.2009 Ex.7A, notice cum reply Ex.9A, which show that the respondent-defendant, even before filing the suit and after filing the suit, tendered rent. A bare perusal of written statement, more particularly paras Nos.4 and 8 makes it clear that the appellant-defendant was throughout ready and willing to pay payable rent but the respondent-plaintiff, with an ulterior motive, did not accept the same prior to filing the suit and after filing the suit, then in view of the provisions of Section 114 of the Transfer of Property Act, the ground of eviction of the non-payment of rent is not sustainable. The tenancy in question could not presumed to be terminated in view of the alleged notice and the suit ought to have been dismissed while deciding the issue No.3. The trial court has completely failed to consider material evidence and law.
It was also contended that the trial court has wrongly decided issues Nos.4 and 6. The question for consideration was as to whether the tenancy in question is at will or not, but the learned trial court, while referring some piece of evidence of DW-1 perversely decided the issue against the appellant-defendant, whereas the burden of proving as to whether tenancy in question is at will or not, lies over the respondent-plaintiff but the respondent-plaintiff has failed to prove this material aspect.
In view of the contentions raised by the appellant-defendant in respect of issue No.5, perused the pleadings and evidence placed on record. This issue was framed as to whether the court has jurisdiction to decide the suit of the plaintiff? It was pleaded by the appellant-defendant that while deciding issue No.1, the trial court held that payable rent of the premises was Rs.65/- per month, whereas the respondent-plaintiff, in para No.4 of the plaint, pleaded that initial rent of the shop was Rs.200/- per month and in 1998 it was raised to Rs.800 per month up to March, 2000 and thereafter from 01.04.2000, the rent was raised to Rs.1,000/- per month. This fact has wrongly been pleaded that the rent was Rs.1,000/- per month and thereby wrongly filed the suit before the District Judge. The rate of rent alleged by the respondent-plaintiff was false and concocted. If the entire material evidence is considered, the trial court found that the payable rent was Rs.65/- per month. This means that the suit was not triable by the District Judge and the trial court should have returned the plaint for filing the suit before the court of competent jurisdiction on the basis of valuation and if this issue was decided at the first instance, then there was no occasion to decide to decide the other issues on merit. The respondent-plaintiff argued that a similar issue has already been decided by this court in the case of Nirmala Devi (Smt.) & Ors. Vs. Smt. Tulsi Devi[2013(1) RLW 803 (Raj.)], wherein this court observed as under:-
"14. Upon termination of the lease/tenancy by proper service of notice under Section 106 of the T.P. Act, status of the lessee/tenant converts into that of a trespasser and encroachee and occupation in the suit premises cannot be said to be valid under the lease agreement in question. Therefore, irrespective of deciding of Issues No.1, 2 and 3 in favour of defendants-appellants and against the plaintiff-landlady and that the plaintiff failed to establish that monthly rent was Rs.2300/- per month but it was only Rs.1800/- per month, does not invalidate the eviction decree (4 of 4) [CFA-464/2016] based on the Notice to Quit Ex.3 dated 01.08.2003. For the same reason, the other contention raised by the learned counsel for the appellants-defendants that annual rent being less than Rs.25,000/-, it would deprive the learned District Judge to try the said eviction suit, is liable to be rejected. The suit was filed as per the claim of the plaintiff above Rs.25,000/-, which in the absence of the same being proved, has been decided in favour
of defendants that the rent as per rent note would come to Rs.1800/- per month only but that does not take away the jurisdiction of the learned trial court of A.D.J. and this contention of the learned counsel for the appellants- defendants-tenants is also liable to be rejected and the same is accordingly rejected. The contentions that the plaintiff herself did not appear in the witness box and her only and power of attorney holder, namely, Vijay Kumar was examined and, therefore, eviction is not justified is also equally devoid of merits in view of validity of the Notice to terminate the lease/tenancy having been upheld, this contention is of no consequence. Hence, the same is also rejected."
In the present case, the suit was filed as per claim of the respondent-plaintiff with contention for rent of shop in question at the present rate of Rs.1,000/- per month, which in the absence of being proved, has been decided in favour of the appellant-defendant that the rent of the shop was Rs.65/- per
month. However, it does not take away the jurisdiction of the court of Additional District Judge, Merta. The same view was upheld by this Court in the case of Ramesh Kumar & Anr. Vs.
Chhagan Lal [S.B. Civil First Appeal No.464/2016, decided on 16.08.2017]. Hence, in view of this, the contention of the appellant-defendant is not sustainable.
So far as the contention raised in respect of issue No.3 is concerned, perused the pleadings and evidence placed on record. The respondent-plaintiff pleaded in the plaint that the tenancy of the appellant-defendant was terminated by way of registered notice and in his statement before the court, stated that he served a notice dated 10.05.2007 through registered post and terminated the tenancy from the mid-night of 31.05.2007.
The notice was placed on record as Ex.3 and postal receipt Ex.4, acknowledgment due Ex.5. The respondent-defendant admitted that he replied notice, which was Ex.9A and contended that in the municipal area of Merta, Rajasthan Control of Rent Act, 2005 is not effective and, therefore, the notice cannot be said to be defective. The trial court, after taking into consideration all the documentary and oral evidence placed on record, has rightly decided the issue No.3 in favour of the respondent-plaintiff and against the appellant-defendant.
So far as the contentions raised in respect of issues Nos.4 and 6 are concerned, perused the pleadings and evidence placed on record. The issue No.4 was that as to whether the tenancy of the defendant was perpetual tenancy and, therefore, by way of notice by the plaintiff, it cannot be terminated? The burden of proving this issue was on appellant-defendant. The trial court has rightly considered the evidence of DW-2 in this respect, in which he has admitted that on rent receipt Ex.11A it was written that, "VERNACULAR MATTER OMITTED" In view of this admission, the trial court has rightly observed that there cannot be presumption of perpetual tenancy and has rightly decided the issue against the appellant-defendant. So far as issue No.6 is concerned, the burden of proving this issue was also on the appellant-defendant and it was not pressed before the trial court.
In view of the above, I do not find any ground to interfere with the impugned judgment and decree. The appeal of the appellant deserves to be dismissed and the same is hereby dismissed with no costs.
The appellant-defendant shall hand over the peaceful and vacant possession of the suit premises to the respondent-plaintiff (landlord) within a period of two months from today and shall pay mesne profit @ Rs.65/- per month. The appellant-defendant shall also clear all the arrears of the rent or mesne profit within one month from today, otherwise, the amount shall bear interest @ 6% from the date of decree.