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Pooran Mal V/S Rahman

    S.B. Civil Second Appeal No. 40 of 1989

    Decided On, 14 February 1992

    At, High Court of Rajasthan

    By, THE HONORABLE JUSTICE: G.S. SINGHVI

    For Petitioner: A.K. Bajpai, Advocate And For Respondents: S.R. Bajwa, Advocate



Judgment Text


1. In this tenant's second appeal the question of law which arises for determination relates to interpretation of Section 13(1)(j) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. While the appellant's case is that the non-user of the premises for a continuous period of six months must be taken into consideration from the date of the suit, the respondent's case is that once the non-user is for six months, the tenant is liable to be evicted. The facts of this case require brief narration for the purpose of decision of the question of law involved in this appeal. The respondent-landlord leased out the disputed premises to the appellant-tenant on a monthly rent of Rs. 20/-. On 7.5.1981 he filed a suit for eviction and arrears of rent in the Court of Munsiff, Sikar. The main ground of eviction as set out by the landlord in his plaint related to default in payment of rent and non-user of disputed premises for a period of two years. The landlord pleaded that the tenant had not been using the shop in question and had closed it completely. He had not been living in Sikar for two years and was serving with M/s. Sugan Chand Shri Kishan at Calcutta. He remitted the rent of disputed shop from Calcutta. The rent was sent up to 7.12.1979 and, thereafter, rent for the period of 17 months had not been paid despite the demand and had not vacated the disputed shop. The tenant refuted

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the claim of the landlord and asserted that he has been doing business of manufacturing ornaments. The disputed shop had not been closed and he had not been in the service of any person at Calcutta. The landlord was interested in enhancing the rent, therefore, when he (tenant) had sent the amount of rent by M.O. the landlord had declined to accept the same. This the landlord did deliberately in order to project the tenant as a defaulter. On the basis of the pleadings of the parties the learned trial Court framed five issues. The first issue related to default in payment of rent, the second related to non-user of the premises for a period of more than two years. On the first issue learned trial Judge held that the tenant had deposited the rent in the Court as per the determination made by the Court under Section 13(3) of 1950 Act, therefore, no decree of eviction could be passed in the light of the provisions of Section 13(6) of the Act. On the second issue, learned trial Judge analysed the evidence of the parties and held that the plaintiff had not been able to establish that immediately before the filing of the suit the tenant had not been doing the business for which the shop was leased out to him. No cogent evidence has been placed on record to establish that the tenant had been serving in Calcutta with some one else and sufficient evidence 2as not available on record to hold that the tenant was doing service in Calcutta for three years and was not using the disputed shop without reasonable cause for a period of six months immediately preceding the date of the suit. On the basis of his findings the learned trial Court dismissed the suit of the respondent-landlord except to the extent of arrears of rent. In appeal of the landlord, learned Additional District Judge, Sikar, reversed the finding of the trial Court on issue No. 2. Learned lower appellate Court took note of the fact that a money-order dated 7.12.1979 (Ex. 1) was sent by the tenant from Calcutta and another money-order (Ex. 2) was also sent from Calcutta. The first money-order related to a period of 12 months and since the money-order for over 12 months had been sent from Calcutta, it was the duty of the tenant to have established that he had been using the shop in dispute. Learned lower appellate Court discarded the testimony of the witness of the tenant and held that during 1979, 1980 and 1981 the tenant had been in Calcutta, therefore, the disputed shop had not been used. This non-user of the shop was without any reason.

2. Shri A.K. Bajpai, learned counsel for the appellant, has strenuously argued that the learned lower appellate Court had no jurisdiction to disturb the finding of fact recorded by the trial Court. He urged that the learned lower appellate Court has not given any cogent reason for upsetting the finding recorded by the trial Court in the context of Section 13(1)(j). Mere fact that the learned lower appellate Court entertained a different view on the basis of the evidence produced by the parties, it did not entitle the learned lower appellate Court to reverse the judgment passed by the trial Court. Shri Bajpai referred to the documents, Ex. 3, Ex. 4 and Ex. 5 and asserted that the notice dated 19.4.1981 sent on behalf of the landlord was received by the tenant on 27.4.1981 at Sikar. The suit was filed in the trial Court on 7.5.1981. The very fact that the tenant had received the notice sent to him goes to show that he was at Sikar and not in Calcutta. Therefore, he cannot be said to have not been using the premises for a continuous period of six months immediately preceding the date of the suit.

3. Shri S.R. Bajwa, learned counsel for the respondent-landlord, on the other hand, argued that this Court cannot upset a finding of fact arrived at by the learned lower appellate Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure . Shri Bajwa urged that the learned lower appellate Court has minutely examined the evidence of both the parties and then came to the conclusion that the tenant was not using the premises in question for a period of three years.

4. Section 13(1)(j) of 1950 Act specifies one of the grounds on which the landlord can seek eviction of a tenant from the leased premises. This provision reads as under:-

"That the premises have not been used without reasonable cause for that purpose for which they were let for a continues period of six moths immediately preceding the date of the suit".

5. From the perusal of the language of Section 13(1)(j) it is clear that before a tenant can be evicted from the leased premises for the purpose for which they were let out for a continuous period of six months immediately preceding the date of the suit and that, such non-user is without reasonable cause. The phrase immediately preceding the date of suit is of crucial importance. This phrase has not been defined in the Act.

6. In Black's Law Dictionary (Revised Fourth Edition), the word 'immediate' has been defined to mean, present; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise signification, denotes that action is or must be taken either instantly or without any considerable loss of time."

7. In Bouvier's Law Dictionary (Third Revised Edition), the word 'immediately' has been defined as, the words "forthwith" and "immediately" have the same meaning. They are stronger than the expression "within a reasonable time" and imply prompt, vigorous action without any delay.

8. The word "preceding" has been defined in Shorter Oxford English Dictionary (Third Edn.), to mean, that precedes in order of time or moment."

9. In Eager v. Furnivall, 17 Ch..D. 120, it has been held that "where a consequence or conclusion of law is to follow "immediately after" an event, that means "the next moment after."

10. In the light of the dictionary meaning and also of the decision in Eager v. Furnivall, if the provisions of Section 13(1)(j) is examined keeping in mind the purpose of enacting that section it can be said that before a landlord can succeed in getting a decree for eviction on the ground of non-user of the premises by the tenant, he must establish such non-user is continuously for a period of six months counted from the date of the suit. The words "immediately preceding" have to be read in conjunction with the words "continuous period of six months" and the words "the date of the suit". If so read, it is clearly borne out that a tenant shall be liable to be evicted if the premises have not been used by him/her it for a continuous period of six months before the date of the suit. The object of enacting Section 13(1)(j) was to enable the landlord to seek eviction if the tenant fails to make use of the premises for the purpose for which the same were let out to him. The tenant cannot take the premises on rent and then keep it closed for indefinite time. This not only diminishes the value of the property but also prevents the landlord from making use of his own property according to his sweet will. The Legislature, therefore, thought it fit to provide that if for a period of six months the tenant fails to make use of the premises the landlord can file a suit for eviction and the Court will be entitled to pass a decree for eviction. At the same time, non-user of the premises for a period of six months by itself, has not been allowed to be made a ground for eviction unless such non-user is immediately before the filing of the suit. If the landlord does not take prompt action for filing a suit for eviction despite non-user of premises by the tenant for six months, he must be deemed to have condoned the non-user and he cannot, therefore, be allowed to file a suit on that ground.

11. While interpreting the provisions of 1950 Act, the Courts has always to bear in mind the object of enacting this piece of legislation, namely, to ameliorate the conditions of the tenants and to give them protecting against eviction by the landlord from the tenanted premises.

12. In the present case, the learned appellate Court has merely observed that the tenant was in Calcutta during 1979, 1980 and 1981 and therefore, the disputed premises were not used during this period. However, without there being any plea of the landlord and without there being any evidence on record to effect that non-user of the disputed premises continuously for a period of six months immediately preceding the date of the suit, the learned Additional District Judge straight away jumped to the conclusion that since the tenant had remained in Calcutta during 1979, 1980 and 1981, he had not been using the disputed premises for six months immediately preceding the date of the suit without any reasonable cause. This part of the finding recorded by the learned appellate Court is clearly perverse. The learned lower appellate Court has completely ignored the fact that the notice Ex. 3 was sent on behalf of the landlord to the tenant at his Sikar address in the month of April 1981 and the same was received by the tenant at Sikar on 27.8.1981. The summon of the suit which was sent to the tenant at his Calcutta address was returned with the remarks "left" and a copy of the summons which was sent to him at Sikar address was served upon him on 1.10.1981. The learned lower appellate Court has not given any cogent reason for interfering with the finding of facts arrived at by the trial Court. The jurisdiction of the lower appellate Court has failed to keep in mind the limitations of the exercise of jurisdiction by it under Section 96 of the Code of Civil Procedure .

13. In Saru Pershad Ramdeo v. Jwaleshwari Pratap Narain Singh and others, AIR 1951 Supreme Court 120, their Lordships of the Supreme Court have, while laying down the principles relating to scope of interference in First Appeal observed as under:

"Where the question for consideration of the appellate Court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it had not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rules is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact."

"The appellate Court is wrong in thinking that it would detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from the proved circumstances which, in the opinion of the Court, outweighs such finding."

14. In the present case, learned lower appellate Court has completely failed to keep in mind these principles while reversing the finding of fact recorded by the learned trial Court. Without applying its mind of the material which has come on record and without there being any evidence of non-user for six months immediately preceding the date of filing of the suit, the learned lower appellate Court has held that the tenant is liable to be evicted under Section 13(1)(j). In my opinion, the landlord-respondent has completely failed to prove that the tenant has not used the premises for a continuous period of six months immediately preceding the date of suit i.e. 7.9.1981. The result of the above discussion is that this second appeal succeeds and it is hereby allowed. The judgment and decree passed by the Additional District Judge, Sikar, in appeal No. 28/87(6/85) is set aside and the dismissal of the suit of the respondent by the trial Court is upheld.

15. Parties are left to bear their own costs
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