Sanwar Mal son of Shri Ogad vs Prashant Soni son of Shri Jagdish Soni

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.