Sushila Devi vs Kunni and Others

Dr. Vineet Kothari, J.—Both these second appeals of the appellant/defendant/tenant, Sushila Devi, are disposed of by this common judgment.

The appellant/defendant, Sushila Devi W/o Sh. Chand Ratan Joshi, has preferred this second appeal assailing the eviction decree granted in favour of respondents/plaintiffs, LR''s of Smt. Kunni W/o late Sh. Sanwar Ram Modi, by both the courts below under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act of 1950).

The learned trial court i.e. Additional Civil Judge (Jr. Division) No. 2, Bikaner, decreed the Civil Suit No. 16/2001 - Mst. Kunni and Ors. Vs. Sushila Devi and Ors. vide judgment and decree dated 24.12.2011, filed by the respondents/plaintiffs, Smt. Kunni and orders, for eviction of the defendant, Sushila Devi, on the ground of default in payment of rent and so also on the ground of non-user of the suit premises, a shop situated at Teliwada, Bikaner. The finding on Issue No. 2 regarding default was in favour of defendant and against the plaintiff but the finding on Issue No. 5 regarding non-user of the suit shop was given in favour of plaintiff by the learned trial court. The findings on Issue No. 2 regarding default in payment of rent and Issue No. 5 regarding non-user of suit shop are quoted herein below for ready reference:-

Finding on Issue No. 2: (Default in payment of rent)

Finding on Issue No. 5: - (Non-user of suit property)

The first appeal of the appellant/defendant and cross appeal of the plaintiff on the ground of default in payment of rent both came to be decided by the learned first appellate court of Additional District Judge No. 2, Bikaner, on 17.09.2014 and the findings given by learned trial court on Issue No. 2 were reversed and the findings arrived at by learned lower appellate court on the Issue No. 2 regarding default in payment of rent reads as under:-

The finding of learned lower appellate court on Issue No. 5 regarding non-user of suit premises is also quoted herein below for ready reference:-

Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel for the appellant/defendant submitted that the findings of the first appellate court in relation to Issue No. 2 viz. default in payment of rent, are perverse since the learned trial court rejected the application filed by the plaintiff under Section 13(5) of the Act of 1950 for striking-off the defence of the defendant/tenant are ex facie wrong because due rent was paid by the defendant from time to time in the Bank account of the plaintiff and that is why the application under Section 13(5) of the Act of 1950 was rejected by the learned trial court. The learned lower appellate, however, without giving any reasons reversed the findings in respect to default in payment of rent.

Mr. R.K. Thanvi also contended that as far as non-user of the suit shop is concerned, the findings of the learned courts below have gone beyond the pleadings of the plaintiff who merely stated in para 4 of the suit that defendant was not using the shop in question for more than six months period prior to the date of instituting the suit and, therefore, the respondent/plaintiff was not entitled to get the possession and the same is not sustainable. He further submitted that the findings of fact rendered by the appellate court on the ground of default in payment of rent are perverse and, therefore, the present second appeal deserves to be admitted and allowed and substantial questions of law, to be framed are suggested in the memo of appeal, may also be framed. He relied upon the judgment of this Court in the case of Gauri Lal Vs. Gujar Mal through his LR''s reported in 1992 (1) RLR 75.

On the other hand, Mr. Hemant Balani, appearing on behalf of Mr. Vikas Balia, learned counsel for the respondents/plaintiffs opposed the submissions made by the learned counsel for the appellant/defendant and submitted that both the findings are essentially findings of fact and the default in payment of rent was also there and non-user of the suit premises for a period of more than six months prior to filing of suit was also proved and established by the plaintiffs by way of oral as well as documentary evidence and, therefore, no substantial question of law arises in the present second appeal and the same deserves dismissal.

Having heard the learned counsel for the parties and upon perusal of the impugned judgments and decree of the courts below, this Court is satisfied that no substantial question of law arises in the present second appeal. Even though the findings on default of rent by the first appellate on Issue No. 2 is not detailed and the appellate court has also not taken note of the fact that the application of the respondent/plaintiff under Section 13(5) of the Act of 1950 for striking off the defence of the defendant was rejected by the learned trial court, still the learned appellate court has held in favour of plaintiff that there was default in payment of monthly rent. During the course of arguments, learned counsel for the appellant/defendant regular monthly was also asked to assist for showing the receipts for payment of rent for the entire period of default pointed out by the plaintiff in the application, but though no such tally could be exactly made by the documents placed on record, however, some Challan receipts of payment of rent were shown by the counsel for the appellant/defendant for re-appreciation of evidence, which is even though not permitted in the scope of second appeal, however, this Court looked in the evidence with the assistance of learned counsel for the appellant/defendant.

Therefore, even if assuming that the findings of the lower first appellate court below on Issue No. 2 on default of payment of rent were not sustainable, there is no reason to upset the findings of both the courts below on the ground of non-user of the suit premises, which is a purely finding of fact. The pleadings in para 4 of the plaint is enough to allow the party to lead evidence, on the ground of non-user of the suit property and in evidence it has clearly come on record that both the sons of the defendant were in services, the elder son was a Govt. School Teacher and the younger son was working in a private concern, and the appellant/defendant who herself was 62 years of age in 2006 did not carry out the routine business activities and she had no knowledge of active business of electrical goods said to have carried out in the suit shop.

Learned counsel for the respondents/plaintiffs has also pointed out that suit premises is in dilapidated condition and the municipal authorities have also issued notice in this regard to the respondent/plaintiff to remove the same at their cost, else the municipal authorities will demolished the same. He has also shown some photographs of the suit premises for perusal. Learned counsel for the appellant/defendant, however, disputed the same. Be that as it may, this Court is satisfied that the findings of fact of both the courts below on the issue of non-user of the suit premises are findings of facts, which do not give rise to any substantial question of law on the basis of material available on record. Even that one ground of eviction is sufficient to give decree of eviction. The judgment cited by the learned counsel for the appellant/defendant is not applicable to the facts of the present case, as there is no bald or vague assertion about the non-user of the suit premises in the present case and, therefore, in the opinion of this Court the said assertion is unambiguous.

Resultantly, both these second appeals of the appellant/defendant being bereft of any merits fail and the same are hereby dismissed. No costs. The appellant/defendant shall handover the peaceful and vacant possession of the suit premises to the respondents/plaintiffs within a period of two months from today, and if necessary, with police aid which may also be provided. The appellant/defendant shall also pay mesne profit @ Rs. 1,000/- per month from the date of filing of the suit till the date of actual handing over of the possession for the use and occupation of the suit premises. The respondents/plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court, in case the appellant/defendant fail to handover the peaceful and vacant possession of the suit premises within a period of two months from today. A copy of this judgment be sent to the concerned parties and trial court below forthwith.