JUDGMENT
Arun Madan, J.
1. This civil second appeal under Section 100, C.P.C., 1908 has been preferred to this court against the judgment and decree, dated 7th March, 1995 passed by Addl. District Judge No. 7, Jaipur City, Jaipur whereby the first appellate court partly allowed the appeal on the ground of default preferred by the defendant-appellant while maintaining the decree for eviction of the appellant from the suit premises on the grounds of nuisance and sub-letting.
2. The facts giving rise to the filing of this appeal briefly stated are that a civil suit for eviction of the defendant-appellant (hereinafter referred to as the ‘appellant’) from the suit shop situated in old sabji mandi behind Johari Bazar, Jaipur, was filed by the plaintiff-respondent (hereinafter, referred to as the ‘respondent’). It was alleged in the suit that the suit shop was rented out to the appellant at the rate of Rs. 45/- per month and that it was an old tenancy. The plaintiff filed the said suit for eviction of the appellant on three grounds under Section 13(1)(a), (d) and (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short as “the Act”), i.e., that the tenant had neither paid nor tendered the amount of rent due from him for six months, that the tenant had created nuisance or had done any act which is inconsistent with the properties for which he was admitted to the tenancy of the premises or which is likely to affect adversely the landlord’s interest therein and that the tenant had aissigned, sublet or otherwise parted with the possession of, whole or any part of the premises without the permission of the landlord. The trial Court framed four issues for the purpose of deciding the suit including the issue of relief and default committed in the payment of rent. The respondent examined four witnesses in his defence including himself while the appellant examined three witnesses including himself in support of their case. The trial Court on the pleadings of the parties framed the following issues:
1. Whether the defendant had not committed any default in payment of rent?
2. Whether the defendant had sub-let the shop in question?
3. Whether the defendant had created nuisance as mentioned in para 3 of the plaint?
4. Relief?
The trial court after recording the evidence of the parties adduced on the record and after hearing the learned counsel for both the parties decreed the suit of the plaintiff on all the four issues in favour of the plaintiff on 25th Oct. 1988. The appellant was directed to hand over the vacant possession of the suit shop to the respondent within two months from the date of the decree. Besides he was also directed to pay a sum of Rs. 1650/.-towards arrears of rent and water charges etc. at the rate of Rs. 45/- p.m. and Rs. 5/- p.m. respectively. It was further directed that if any payment has been made by the appellant during the pendency of the suit, the same shall be adjusted towards the decretal amount. Being aggrieved by the said judgment and decree of the trial court the appellant preferred first appeal before the District Judge, Jaipur City, Jaipur who transferred the same to the Court of Addl. District Judge No. 7, Jaipur City, Jaipur for disposal in accordance with law.
3. The first appellate court reversed the findings of the trial court on the issue of default in payment of rent, while maintained the decree of eviction on the ground of subletting and nuisance. On the question of default in payment of rent it was observed by the first appellate court that the interim rent of the suit shop was fixed at the rate, of Rs. 45/- p.m. Since there was a dispute regarding the rate of rent between the parties while the respondent alleged that the rate of rent was Rs. 100/- p.m., the appellant alleged that it was Rs. 45/- p.m. In order to settle the dispute between the parties the trial court fixed interim rent at the rate of Rs. 45/- p.m. and directed the appellant to deposit the interim rent at the rate of Rs. 45/-p.m. under Section 13(3) of the Act till the rent is finally determined by the court. The appellant continued to deposit the interim rent at the said rate and he could not be held liable to deposit the rent at the enhanced rate of Rs. 100/- p.m., particularly when the rate of rent had not finally been determined by the trial court. The first appellate court has further observed that unless the rent is finally determined at the rate of Rs. 100/- p.m. the appellant was justified in depositing the rent at the rate of Rs. 45/- p.m. which was interim rent as fixed by the court. The first appellate court has further observed that merely because there was delay of few days in depositing the interim rent, the appellant cannot be held liable and that his defence cannot be stuck off on the said ground, since the appellant had tendered the payment of rent which was accepted by the respondent as landlord and hence no decree for eviction on the ground specified in Clause (a) of Sub-section (1) of Section 13 of the Act could be passed against the appellant; It was further observed by the first appellate court that onus of proving the default in payment of rent was on the respondent and since he had failed to discharge the same by proving default by way of satisfactory evidence, the appellant could not be held liable for the same. The contention of the respondent before the first appellate court that earlier also the appellant had committed default in payment of rent, was not tenable, since the interim rent was fixed at the rate of Rs. 45/- p.m. and that the appellant had made the payment of rent continuously at the said rate and, therefore, when the rate of rent was not finally determined at the rate of Rs. 100/- p.m. as alleged by the respondent, the appellant could not be held liable for payment of deficit amount on the ground of default. The appellant in compliance with the subsequent order of the trial court had also deposited rent including the arrears of rent at the rate of Rs. 100/- p.m. and that there was no default and rather he was entitled for adjustment of the arrears of rent.
4. It was further observed by the first appellate court in its impugned judgment that on the question of subsequent default the appellant could not be held liable, since in order to attract the provisions of Section 13(1)(a) of the Act it is necessary that the tenant had neither paid nor tendered the amount of rent due from him for six months which evidently means the arrears of rent for a period of six months immediately preceding the date of institution of the suit in the court. It was observed in this regard that since the appellant had not committed any default in payment of rent for a period of six months to attract the provisions of Section 13(1)(a) of the Act he could not be held liable for eviction, since he had made the payment of rent as required by Sub-section (4) of Section 13 of the Act and, therefore, was entitled to protection against the decree for eviction under the provisions of Section 13(6) of the Act. This is not a case where the tenant having taken the benefit of first default was claiming the benefit of subsequent default under Section 13(6) of the Act. The first appellate Court further observed that it will not be relevant to go into the previous defaults and the only question relevant to be decided is as to whether the appellant was in arrears of rent for a period of six months immediately preceding the institution of the suit for eviction which the respondent had failed to prove on the record by leading any evidence to this effect against the appellant. With regard to the provisions of Section 7(1) of the Act it was observed by the first appellate court that since the fixation of interim rent was only provisional and was not finally determined by the concerned court and continued to be provisional till last, it could not be said that the appellant was defaulter since he had been complying with the direction of the court by making continuous payment of the provisional rent to the landlord and that the provisions of Section 7(4) of the Act are not attracted to this case because the rent had not been finally determined by the court concerned. It was further observed by the first appellate court that case before the said court was confined to the question of payment of arrears of rent and eviction under Section 13(1)(a) of the Act as well as other grounds taken therein and further that the case for determination before the said court was not regarding fixation of provisional rent under Section 7 of the Act and, therefore, the provisions of Section 7 of the Act are not attracted to this case. The court has only to see as to whether there has been continuous default in payment of rent for a period of six months immediately prior to the institution of the suit and if there is no such default, the tenant cannot be held liable for eviction. On this basis the first appellate court reversed the finding of the trial court as erroneous, since the appellant could only be held liable for eviction under Section 13(5) of the Act and only under the said provisions the Court was empowered to strike off the defence of the defendant against the eviction and since there was no such default and delay in payment of rent was only for a couple of days and for which also there was sufficient explanation on the record, the appellant could not be deemed to be a defaulter within the ambit of Section 113(1)(a) of the Act and held that no decree for eviction could be passed against the appellant.
5. Regarding issue No. 2 on the question of sub-letting it was contended by the learned counsel for the appellant that the plaintiff has not specifically stated in his plaint as to whom for what period and at what rate of rent the alleged sub-letting of the suit shop had been done and in abence of this specific averment the appellant could not be held liable for eviction. It was further contended that no independent witness was examined by the plaintiff to prove the alleged sub-letting. Further there was no documentary evidence on the record either by way of rent receipt or by way of any agreement of sub-tenancy and hence finding of the trial court that the appellant had sub-let the suit shop to some third person is erroneous and deserved to be reversed by the appellate court.
6. On the contrary learned counsel for the respondent contended before the first appellate court that it is not necessary to indicate the persons to whom the suit shop was sub-let nor it was necessary to give the specific details in the pleadings. In para 4 of the amended plaint the plaintiff-respondent has stated that the defendant on different occasions and at different times sub-let the suit shop to some different persons at unreasonable rate and, therefore, the plaintiff is entitled for a decree for eviction against the defendant. In reply to the amended plaint the said contention of the respondent has been specifically controverted by the appellant by contending that the suit premises were never sub-let to different persons at different rates of rent as alleged by the plaintiff and that the plea is totally vague and not tenable in law.
7. With regard to issue No. 2, i.e., the ground of sub-letting the plaintiff examined himself as P.W. 1 and also examined alleged sub-lettees, namely, Mohammad Ishaq P.W. 2 and Abdul Hameed P.W. 3. In his statement before the trial court the plaintiff Harisingh has specifically deposed to the effect that at the time of filing of the suit he was not aware of the names of the alleged sub-lettees and, therefore, he could not mention their names in the plaint. He has further deposed that during the mango season the appellant had temporarily allowed the alleged sub-lettees to keep their mangoes in the suit premises. He neither remembers the date nor the rate of rent at which the said premises were sub-let to.the said persons/nor he had seen the rent receipt or any agreement between the parties in this regard.
8. In the legal notice dated 15-2-1977 served on the appellant terminating his tenancy in the suit premises prior to the institution of the suit the plaintiff had taken only two grounds, i.e., (i) nuisance and (ii) default in payment of rent for a particular period. There is no mention of the ground of sub-letting of the suit premises by the appellant to above-named sub-lettees whose particulars have neither been mentioned in the pleadings nor any details have been mentioned in the statement of the plaintiff P.W. 1 who has specifically deposed to the effect that he was not aware of their identity or names at the time of institution of suit.
. 9. With regard to issue No. 3 on the question of alleged dausing of nuisance by the tenant in the suit premises the evidence which has come on the record is that there was temporary blockade at the entrance of the suit premises which is 11′ wide. The plaintiff has deposed in his evidence that the obstruction was caused temporarily by the appellant by keeping the bags containing vegetables and fruits from time to time but the obstruction was only up to the extent of 8′ leaving aside 3′ vacant passage for free ingress and outgress of other tenants in the suit premises and also for the plaintiff-landlord. It has further come in evidence that the obstruction was neither consistent nor continuous at any point of time from which it cannot be inferred that the tenant had Caused nuisance or had done any act deliberately which is inconsistent with the purposes for which he was admitted to tenancy of the suit premises or which is likely to affect adversely and substantially the interest of the landlord therein so as to come within mischief of Section 13(1)(d) of the Act.
10. Perusal of the judgments of the trial court as well as first appellate court reveals that both the courts below have not taken note of the above aspect of the case on the question of ‘nuisance’ and the findings are perverse and contrary to the evidence on the record. Further on question of sub-letting as well, as referred to above, first appellate court has recorded its finding to the effect that to prove sub-letting it is not necessary to give specific details in the pleadings and only on the basis that the plaintiff had not given the details nor indicated the names of the alleged sub-lettees, the plaintiff cannot be disbelieved for this reason. In my opinion this observation of the first appellate court is quite erroneous and contrary to law which is so well settled on the subject that pleadings have got to be specific incorporating necessary details which are to be substantiated by way of evidence and if the pleadings are silent on the specific grounds or issues, it would not be open to the aggrieved party to fill in the gaps by improving its case by adducing evidence contrary to the pleadings. Thus, I am of the considered opinion that the findings arrived at by the trial court as well as first appellate court on both the issues of sub-letting and of nuisance are based on conjectures and surmises which are not sustainable in law when the plaintiff himself is not aware of the persons, to whom the suit premises were sublet nor he had seen them, as a result of which he could not mention their names in the” pleadings, it was not open to the plaintiff to take benefit of his ignorance with a view to improve his case by introducing said witnesses at a subsequent stage in evidence to the detriment of the appellant. Thus, in my opinion both the courts below have failed to take note of this important factor into consideration.
11. During the course of hearing my attention was also invited by learned counsel for appellant to the site-plan on the record which also does not indicate any blockade of the passage with a view to cause obstruction in the user of the passage by other tenants as well as respondent in the suit premises, since admittedly it has come in the evidence that the width of the passage is 11′ against which there was temporary blockade of 8′ leaving balance of 3′ for user. This, in my opinion cannot be deemed to be a nuisance or an act which is inconsistent with the purpose for which the tenant was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the interest of the landlord therein. I am further of the opinion that the shop premises is admittedly in subji mandi area where there is bound to be some sort of frequent nuisance by trucks, carts and thelas etc. carrying vegetable loads and this fact was in full knowledge of the respondent landlord before letting out the premises in question to the appellant who was dealing with in the business of vegetables, fruits etc.
12. In support of his contentions advanced at the bar Shri P.C. Jain, learned counsel for the appellant has contended that the courts below have failed to take into consideration important issues which have not been framed and on which proper evidence has not been led. On the first issue regarding default in payment of rent the trial court has committed a grave illegality in not taking into consideration that the agreed rent between the parties in respect of the suit premises was Rs. 45/- p.m. which was being regularly paid ever since the occupation of the suit shop and as on the date of institution of the suit i.e., 12-1-1978 the defendant-appellant had agreed to make payment to the plaintiff-respondent at the rate of Rs. 100/-p.m. which rent was excessive to the tune of Rs. 50/- p.m. and thus right from January, 1978 to June, 1995 for 210 months excess payment has been made by the appellant to the respondent which the plaintiff is liable to refund to the defendant along with compound interest which comes to Rs. 10,500/- plus interest for 17.6 years thereby multiplying the same. It has been contended in this regard that if cumulative account is opened in any nationalized bank, then after 5 years the total amount would be to the tune of Rs. 4167/-which had accrued up to January, 1983. This amount would be doubled after 5 years plus further amount of Rs. 4167/- would be available making the same amount to 4167 x 2 + 4167 = 12501 as in the year 1988. This amount in January, 1993 would have multiplied by 12501 x 2 + 4167 = 29169/-. Thereafter for a period of 2 1/2 years it would have multiplied by 29169 + 4167/2 + 19169 = 16668 + 29169 = 45837.00 up to June, 1995. It has been contended by the learned counsel for the appellant that the said amount is liable to be refunded in favour of the defendant-appellant. Provisions of Section 13(7) of the Act cast a mandatory duty upon the trial court that if in any suit referred to in Sub-section (3) of Section 13 of the Act there is any dispute to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding cost or interest, as having regard to the circumstances of the case, it deems fit. In my considered opinion this contention of the learned counsel for the appellant, is well sounded, since the courts below have failed to take notice of this important aspect of the matter that fixation of provisional rent was not alone the criteria to resolve the dispute between the parties and a mandatory duty was cast upon the trial court to consider that once having fixed provisional rent at the rate of Rs. 45/- p.m. under Section 13(3) of the. Act, the rent had to be finally determined under Section 13(7) of the Act which in this case has admittedly not been done by the courts below, thus leaving serious lacuna in the impugned judgments. I am further of the opinion that the appellant is also entitled to refund of the amount as calculated above or adjustment thereof. I am further of the opinion that the first appellate court has equally fallen in error of law and jurisdiction in not taking into consideration and not deciding anything in this regard, since no finding has been recorded in its impugned judgment with regard to the excess payment made to the respondent nor any order has been passed under Section 13(7) of the Act since provisional rent fixed by the trial court under Section 13(4) of the Act had not been finally determined and hence a final order under Section 13(7) of the Act was very necessary and thus an important issue has been left undecided thereby committing error of law and of jurisdiction.
13. During the course of hearing Shri Mehta, learned counsel for the respondent has placed reliance upon the judgment and decree dated 29th Oct. 1992 in Civil Suit No. 42/86, passed by Addl. Civil Judge-cum-Chief Judicial Magistrate, Jaipur determining the standard rent of the suit premises at the rate of Rs. 110/- p.m. w.e.f. 19-1-1978. Copy of this judgment was not available on the record of the courts below and has now been placed belatedly during the course of hearing by way of an application under Order 41, Rule 27, C.P.C. by learned counsel for the respondent which, in my opinion, is not maintainable since no sufficient cause has been explained by the learned counsel for the respondent for not placing the same on the records of the courts below earlier.
14. It has been further contended by the learned counsel for the appellant that the said judgment is not relevant for deciding the controversy between the parties, since it is based on the law which has been declared unconstitutional by this court in the matter of Firm Khetsidas Sheojiram v. Mohnidevi, 1994 (2) WLC 551 in which it was held by this court that fixation of provisional standard rent under Section (2) of the Act is hit by Article 14 and while determining provisional rent payable under Section 5, such section cannot be invoked for reduction of agreed rent. It was further held that in absence of criteria under Section 7 of the Act, provisional rent has to be fixed on some criteria as applicable while fixing standard rent. Accordingly this court held that the provisions of Section 6(2) of the Act are hit by Article 14 of the Constitution of India and cannot be invoked for reduction of agreed rent payable under Section 5 of the Act. The basic rent therefore, would be the rent as agreed between the parties and this court held that there was no error on the part of the appellate court in fixing provisional rent at the agreed rate between the parties.
15. In para 5K of the amended plaint filed by the plaintiff-respondent in the trial Court it has ‘been contended that the provisional rent was determined at the rate of Rs. 100/- p.m. w.e.f. 12-1-1978 on the plaintiff’s application under Section 6 of the Act which was finally fixed at the rate of Rs. 110/- p.m. w.e.f. 29-10-1992 by Addl. Civil Judge-cum-Judicial Magistrate and that there was no appeal preferred by the appellant against this order which had achieved finality. I am of the opinion that in view of the above referred judgment of this Court by which provisions of Section 6(2) of the Act have been declared ultra vires of the Constitution, the judgment of Addl. Civil Judge-cum-Judicial Magistrate, Jaipur City, Jaipur, dated 29-10-1992 determining the standard rent as Rs. 110/-p.m. w.e.f. 19-1-1978 will be of no consequence and of no help to the respondent and which cannot be taken into consideration by this Court.
16. A perusal of the amended plaint shows that in the prayer Clause the plaintiff has made a specific prayer in Clause (b) to the effect that from the date of filing of the suit till eviction a decree be passed for a sum of Rs. 45/- p.m. being the rate of rent and Rs. 5/ – towards water charges per month, i.e., at the rate of Rs. 50/- p.m. I am of opinion that when relief sought for by the plaintiff towards the arrears of agreed rent does not exceed Rs. 50/- p.m., then the contention of the respondent that he is entitled to payment of rent at the rate of Rs. 110/-p.m. as fixed by the trial Court in a petition for fixation of the standard rent which was decreed on 29-10-1992, is wholly irrelevant and cannot be taken into consideration by this Court. Section 6(2) of the Act has already been declared unconstitutional by this Court, as referred to above. I am further of the opinion that in this case since provisional rent was determined by the trial Court at the rate of Rs. 100/- p.m. w.e.f. 12-1-1978 on plaintiff’s application under Section 6 of the Act which the appellant has admittedly paid and deposited to the respondent and since prevalent rents have also considerably gone up in the locality, it will be just and proper that the standard rent of the premises should be Rs. 100/- p.m. which I accordingly fix by having resort to Section 13(7) of the Act. I am further of the opinion that the respondent shall be entitled to interest at the rate of Rs. 6% per annum from the date when such amount was payable up to the date of determination by this Court.
17. While calculating the rent of the suit premises if any amount is found in excess after making necessary adjustment at the rate of Rs. 100/ – p.m. in favour of the respondent w.e.f. the due date, the appellant shall be entitled to refund and adjust the same in accordance with law towards future rent. Consequently the application filed by the respondent under Order 41, Rule 27, C.P.C. stands dismissed.
18. With regard to the question of nuisance and subletting as envisaged under Section 13(1)(d) & (e) of the Act, it was contended by the learned counsel for the appellant that perusal of the language used by the legislature would go to show that for the purpose of creating nuisance and sub-letting it is essential to prove and plead the ingredients of both, the nuisance as well as subletting both with regard to the time factor and the person who has created, alleged nuisance and the person to whom the premises were sub-let for a particular period and at the particular rate of rent which necessary ingredients are not only to be pleaded as grounds in the eviction suit but should also be substantiated by necessary evidence in this regard. Perusal of the amended plaint as well as the evidence which has been adduced on the record shows that the respondent has failed to meet the requirements of law and hence I am of the considered opinion that grave illegality has been committed by the Courts below in passing the eviction decree against the appellant on the said grounds. Perusal of the evidence of the witnesses also shows that no time period and the type of inconvenience caused to the respondent by the appellant has been disclosed by the witnesses. In support of his contentions reliance has been placed by the learned counsel for the appellant on the following judgments:–
Gaurishankar v. Bhikhalal Chhaganlal, AIR 1978 Gujarat 72, Gappulal v. Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291, Sh. Muni Lal v. Shri Dulara, 1976 RCJ 249, Chander Kisore Sharma v. Smt. Kampa Wati, AIR 1984 Delhi 14, Kalyan Sahai v. Smt. Narangi Bai, 1987 (II) RLR 499, Amolak Singh v. Madanlal, AIR 1978 P. & H. 211, Naresh Gera v. Dwarka Dass, 1995 (3) VVLC (Raj) 651 and Bhanwar Lal v. Dhanraj, AIR 1973 Raj 212.
In Gaurishankar v. Bhikhalal Chhaganlal (supra) the question which had arisen for consideration before Gujarat High Court was what amounts to nuisance or annoyance within the ambit of Section 13(1)(c) of Bombay Rents, Hotel & Lodging House Rates Control Act (57 of 1947). The following tests were laid down by the High Court in this regard which must invariably be satisfied (1) It must be of gross character, (2) It must be of an unsual character, (3) It must be frequent and persistent, (4) It must be such that one cannot ordinarily expect in a household, (5) It must be such that it would not be possible for the neighbours to lead a normal life which one can hope to live in a busy town or city. Quarrels, even frequent quarrels, in the domestic household of a citizen are a part of the social life. It cannot be made a ground for eviction. If eviction decree is to be passed merely because there are quarrels in the domestic households of a tenant no tenant would be safe and it would amount, to virtually repealing the Rent Act for all intents and purposes. Applying above principles to this case I am of the considered opinion that no nuisance is established within the ambit of Section 13(1)(d) of the Act, since the appellant has not done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the suit premises or which is likely to affect adversely or substantially the interest of the landlord.
In Kalyan Sahai v. Smt. Narangi Bai (supra) the question which had arisen for consideration of this Court was as to whether a quarrel or hurling of abusive words construe ‘nuisance’ so as to entitle the landlord to a decree for eviction against the tenant. It was held by this Court that it is only when some mala fide or wanton act is done by a party which is highhanded and the manner of doing it would be of the nature which causes pain to the owner of a property, may amount to ‘creating a nuisance’. It was further held that any conduct of the tenant which amounts to nuisance either of the landlord alone is not sufficient to justify eviction under the Act. It must be equally nuisance to those residents of the same vicinity to, they must come forward to prove the nuisance. Nuisance must be of gross and unusual character and must be frequent and persistent. It must be one which creates hindrance or it is not possible for the neighbours to lead normal life peacefully. Applying the ratio of Amolak Singh v. Madanlal (1978 (1) RCJ 386) and Durga Prasad v. State, AIR 1962 Raj 92 : (1962 (1) Cri LJ 465), it was held by this Court that in order to constitute nuisance there have to be series of acts and conduct on the part of the tenant and the landlord or occupiers of the buildings in the neighbourhood so that nuisance can be inferred against the tenant. A sort of continuous or frequent nuisance committed by the tenant is contemplated which has to be inferred from the convenience or comfort of other persons living in the neighbourhood. I am of the opinion that the ratio of the above-referred decisions are fully applicable to this case and the Courts below have committed the error of law in recording concurrent findings both on the grounds of nuisance as well as sub-letting.
In Bhanwarlal v. Dhanraj (supra) it was held by this Court that the main test to determine nuisance is reasonableness what is reasonable so as to constitute nuisance or not would be an inference of law to be drawn by the Court from the proven facts.
In Gappulal v. Thakurji Shriji (supra) the question which had arisen for consideration of the Apex Court in the context of ground of sub-letting which may be available to the landlord for eviction of the tenant under Section 13(1)(c) (17 of 1950) of the Act was regarding realisation of rent by the landlord after sub-letting of the premises. The Apex Court held that the question whether subletting before coming into force of the Act is within the purview of Clause (e) of Section 13(1) of the Act depends upon the construction of that clause. The relevant words are “as sub-let”. The present perfect tense contemplates a completed event connected in same way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the subletting was either before or after the Act came into force. It was held by the Apex Court that the date and the period of sub-letting is very essential to be mentioned in the plaint and that the sub-letting has to be continuous. In the absence of any pleading and any issue on this question the Court would be in error in recording the finding that the premises in question were sub-let to an alleged sub lettee. It was further held that the ingredients of Section 13(1)(e) of the Act which provide that the tenant had assigned, sub-let or otherwise parted with the possession of the whole or any part of the suit premises without the permission of the landlord have to be specifically pleaded and evidence has to be led in this regard. Applying the ratio of this decision to this case it cannot be inferred that the appellant had sub-let the suit premises to the persons whose evidence has been recorded, since neither any period has been indicated nor any evidence with regard to the subletting has been established nor this fact has been specifically pleaded in the plaint and in absence of this mere assertion by the landlord of sub-letting or leading any evidence in this regard will be of no avail or benefit to the owner of the tenanted premises in question.
In Sh. Muni Lal v. Shri Dulara (supra) similar question had arisen before Delhi High Court on the ground of sub-letting under Section 14(1)(b) of Delhi Rent Control Act, 1958 which is analogous provision to Section 13(1)(d) of the Act. It was held by the Court that the relevant date would be the date of notice. If it is proved that on that date there was unlawful sub-letting, the tenant is liable to be evicted. In this, case admittedly no ground of sub-letting has been mentioned or in the’legal notice terminating the tenancy of the appellant prior to the institution of the suit.
In Chander Kishore v. Smt. Kampa Wati (supra) it was held that what constitutes subletting is a substantial question of law to be determined by the Court and that on the said question second appeal is maintainable before High Court. The question of sub-letting by one to another is a substantial question of law. It was held in this context that onus to prove the sub-letting is heavily on the landlord and a tenant cannot be asked to prove negative and no presumption can be drawn from mere relationship of the parties. It was further held that if a party leads evidence beyond the pleadings, no amount of such evidence can be looked into and it is well settled law that ordinarily nothing which is not pleaded can be proved. Applying the ratio of this decision to this case I am of the opinion that since the pleadings itself are silent on the question of sub-letting, it was not open to the courts below to look into the evidence in absence of pleadings.
In Naresh Gera v. Dwarka Das (supra) the question which had arisen before this Court was regarding determination of provisional rent when final rent had not been fixed by the trial Court under Section 13(3)(7) of the Act. It was held by this Court that under the Scheme of Section 13 of the Act it is obligatory for the trial Court to finally determine the rate and amount of rent under Section 13(7) of the Act in a case where such rate and amount of the rent have been determined only provisionally and not finally. It was further held that an order under Section 13(7) of the Act particularly when such order is sought by the tenant may also result in passing of decree in favour of the absenting plaintiff on tenant’s admitting his liability to pay rent more than what was a provisionally determined under Section 13(3) of the Act. It was further held that an order under Section 13(1) of the Act may also find the tenant entitled to recover some amount of rent paid in excess of his liability and a right of a party for fixation of final rent under Section 13(7) of the Act has to be considered irrespective of the fact whether a party has absented himself from the proceedings before the Court. Applying the ratio of this judgment to this case, I am of the opinion that both the Courts below have failed to take notice of this important aspect and provisionally rent was fixed by the trial Court under Section 13(4) of the Act without determining final rent under Section 13(7) of the Act and the first appellate Court has partly reversed the findings of the trial Court only on the question of default without considering the above aspect which was very essential to just decision of this Case.
19. Shri S. M. Mehta learned counsel for the respondent while refuting the contentions advanced by the learned counsel for the appellant has contended that the respondent-plaintiff filed a suit for eviction and arrears of rent against the appellant from the suit shops on 12-1 -1978. The suit premises are two shops (1) Dodara (room) and (2) Chabutra (platform). These premises were let out to the appellant w.e.f. 27-11-1967 at the rate of Rs. 45/- p.m. With regard to first ground of default it was alleged that the appellant was in arrears of rent from Besakhbudi one Samvat 2032 (26th April, 1975) and thus has committed default in payment of rent for more than six months, as on the date of filing of the suit more than 30 months’ rent was due. With regard to the nuisance it was alleged that the defendant-appellant placed bags of Onion and other vegetables in the passage of the plaintiff in front of the door of the plaintiff’s haveli in spite of the repeated protests by the plaintiff. As a result of this encroachment the plaintiff suffered great inconvenience and difficulty in coming and going and in bringing the vehicles inside the house. With regard to sub-letting it was alleged that the defendant had sub-let the rented premises to different persons at different times and also collected rent from them. It was further contended by the learned counsel for the respondent that a suit for fixation of rent was also filed by the plaintiff against the defendant in which by an order dated 3-5-1978 provisionally standard rent at the rate of Rs. 100/- p.m. was fixed w.e.f. 12-1-1978. It is relevant to mention here that the evidence in this regard was neither adduced before the trial Court nor before the first appellate Court from which this civil second appeal has arisen and now at the belated stage during the course of hearing of the appeal an application has been moved under Order 41, Rule 27 , C.P.C. accompanied by the copy of the judgment dated 29-10-1992 of Additional Civil Judge, Jaipur City, Jaipur which, at this stage cannot be taken on record fixing the interim rent at the rate of Rs. 110/-p.m.
20. On the question of default in payment of provisional rent fixed under Section 7 of the Act it was contended by Shri Mehta that the plaintiff claimed arrears of rent w.e.f. 26-4-1975 to 15-12-1977. On this aspect I have already discussed above while dealing with the contentions advanced by the learned counsel for the appellant.
21. With regard to the ground of nuisance it was contended by Shri Mehta that the trial Court after appreciating the evidence adduced by the parties’, has recorded a definite finding that the defendant had created obstructions by placing the bags of vegetable etc. so as to obstruct from entry of the plaintiff and other tenants in the suit premises. I have already dealt with this aspect of the matter in the foregoing paras above. The contention of the learned counsel for the respondent on the aspect of the nuisance i.e., regarding alleged obstruction caused by the appellant in the passage leading to the suit premises is contrary to the evidence as well as the documents on the record with regard to which I have also expressed my opinion in the foregoing paras above. In my considered opinion neither the ground of sub-letting; nor the ground of nuisance is made out because the material ingredients to prove both the grounds as envisaged under Sections 13(1)(d) 2(e) of the Act are not attracted to this case in the light of the evidence adduced by the respondent on the record. Pleadings are silent on the issue. In the plaint there is no mention of the persons to whom premises were sub-let and for what period and at what rate of rent and in absence of this vital requirement of law which is lacking in the case, the evidence of the alleged witnesses who are apparently procured witnesses of the respondent with a view to improve his case, cannot be taken into consideration.
22. On the aspect of the nuisance as well the essential requirement to prove the nuisance as referred to in the foregoing paras above are also lacking in this case and in my considered opinion the Courts below have committed material irregularity by not taking this aspect in view and the impugned judgments of the Courts below suffer, from misappreciation of evidence. I am further of the opinion that it was not necessary for the appellant to have moved any application for better particulars under Order 6, Rule 5, C.P.C. on the question of sub-letting because the onus of proving the same was heavily on the plaintiff which he has failed to discharge.
23. With regard to the question of default I am of the opinion that once first appellate Court has taken the view that the benefit of second default should have been given to the appellant which was not extended by the trial Court and since the appellant complied with the requirement by making the deposit in excess of the rent due for the period of six months immediately preceding the institution of the suit, he cannot be held liable for the same and the finding of the first appellate Court is affirmed, since the default is neither wilful nor contemacious.
24. In support of his contentions learned counsel for the respondent has relied upon the following judgments:
Saremal v. Jubarmal, 1976 WLN 332 : (AIR 1977 Raj 85), Phoolchand and Girdhari v. Girraj Prasad, 1976 WLN 416 : (AIR 1977 Raj 38), Gangaram alias Ganga Prasad v. Gulabchand, 1983 (2) R.C.J. 7, M/s. Manju Choudhary v. Dulal Kumar Chandra, (1988) 1 SCC 363 : (AIR 1988 SC 602), Manohar Das v. Anandi Lal Sharma, 1974 WLN 119, The State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547, (1976 Lab 1C 1647), Dwarkadas Jivraj v. The State, AIR 1956 Bombay 163 : (1956 Cri LJ 380), Smt. Rajbir Kaur v. S Chokesiri and Co., (1989) 1 SCC 19 : (AIR 1988 SC 1845), Noratmal v. Smt. Sobhag Kanwar, 1990 (2) RLR 371, Kehar Singh v. Yash Pal, AIR 1990 SC 2212, Salamat v. Legal R, .esentatives of Babu Khan Marhum, 1989 (2) RLW 168, M. M. Quasimv. Manoharlal Sharma, AIR 1981 SC 1113, Smt. Pushpa Sharma v. Copal Lal Rawat, AIR 1986 Raj 187, V, Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745, Gajanan Dattatraya v. Sherbanu Hosang Patel, AIR 1975 SC 2156, Haji Abdulla Haji Adam Sait Dharmasthapanam v. T. V. Hameed, AIR 1985 Kerala 93, Nihal Chand Rameshwar Dass v. Vinod Rastogi, (1994) 4 SCC 325 : (1994 AIR SCW 2702), Roop Chand v. Gopi Chand Thelia, (1989) 2 SCC 383 : (AIR 1989 SC 1416), Ratan Lal v. Smt. Mishri Devi, 1991 (2) RCR 500, Gulam Husain Mirza v. Laxmidas Premji, 1984 (1) RCR 411, Bhagwat Prasad v. Shanti Devi, 1982 (1) RCR 632, Ramswaroop v. Smt. Leelawati, 1982 (1) RCR 687, A. Doss Arockianathan v. S. Rita, (1985 (2) RCR 250, Chandrakala v. Jeewani, 1988 (1) RCR 52, Harikishan Garg v. Daulatram, 1985 (2) RCR 253 (sic) Manoharlal v. Punjab State Cooperative Bank (P. & H.), 1984 (4) RCR 359 and Ary’a Samaj, Kishanegarh v. Natharmal, 1984(1) RCR 419.
In the matter of Saremal v. Jubarmal (supra) the question which had arisen for consideration of this Court was what con-titutes sub-letting in the context of Section 13(1)(e) of the Act. In this case the act of sub-letting on the basis of evidence on record was a volantary act of the defendant, as, admittedly, the subletting was not with the permission of the landlord. It was held by this Court that sub-letting need not subsist till the filing of the suit and a right accrued to the landlord cannot be divested unless he waives it.
In Phoolchand and Girdhar v. Girraj Prasad (supra) on the question of sub-letting it was held by this Court that the manner of proving a fact dependents upon the Evidence Act, or, at any rate on the principles embodied therein. Once the Court is satisfied that there has been transfer of possession, the onus would in my opinion shift on the tenant to prove the facts explaining the manner in which such possession was transferred.
In Gangaram v. Gulabchand (supra) the question which had arisen for consideration of the Madhya Pradesh High Court was regarding variance between pleading and proof and what approach should be adopted by the Court in such a situation. It was held by the Court that whe here is no specific plea in the pleading but the matter is covered by an issue by implication and the parties go to trial with full knowledge that the plea is involved and adduce evidence thereon, the absence of plea is a mere irregularity.
In Manju Choudhary v. Dulal Kumar (supra) the question which arose before the Apex Court in appeal preferred by the tenant on the question of striking out the defence of the tenant on account of his failure to deposit the rent in accordance with Bihar Building (Letting, Rent and Eviction) Control Ordinance, 1982 the High Court had noted the conduct of tenant in complying with the orders mentioned therein and that High Court was of the view that the trial Court had rightly struck out the defence. In appeal it was held by the Apex Court that tenant having defaulted in the payment of arrears of rent, no interference with High Court’s order was called for under Section 13 of the said Act.
In Roopchand v. Gopichand (supra) the question which had arisen before the Apex Court on the ground of sub-letting was that the appellant-tenant had parted with the possession of a portion of the premises during subsistence of his tenancy to the club and a petition for eviction was filed under. Section 13(1)(e) of the Act. It was held by the Apex Court that since the tenant-appellant had parted with the major portion of the leased premises in favour of a club, the provision of Section 13(1)(e) of the Act was attracted and the Apex Court accordingly dismissed the appeal.
In Ratanlal v. Mishri Devi (supra) subletting was done by the tenant during sub-sistance of the tenancy. Sub-letting was proved on the record. It was held by this Court that sub-letting need not subsist till the institution of the suit or decree and the second appeal was dismissed.
In Gajanan Dattatrayav. Sherbanu (supra) it was held by the Apex Court that in order to deprive tenant of the protection under the Act, sub-letting need not subsist at the date of institution of the suit.
In Smt. Rajbir Kaur v. S. Chokesiri & Co. (supra) the question which had arisen for consideration of the Apex Court was in the context of eviction petition filed under Section 13 of the Punjab Act, 1949 on the ground of sub-letting it was held that if possession is established and the version of the tenant is found unacceptable the Court can draw an inference that the transaction was entered into with monetary considerations in mind. However, the tenant is entitled to its rebuttal. This judgment also helps in advancing the case of the appellant which, in my opinion, he has successfully discharged that there was no sub-letting.
In Nihal Chand v. Vinod Rastogi (supra) the question which had arisen before the Apex Court was regarding the conductof the tenant who had parted with exclusive possession with right to include and exclude others in favour of a third party without the consent of the landlord. In my opinion, this judgment too is not applicable to this case, since in the present case there is no such plea regarding tenant having parted with exclusive possession of the suit premises in favour of alleged sub-lettees who have also not deposed to this effect in their evidence before the trial Court.
In Gularn Husain v. Laxmidas (supra) question which had arisen before the Bombay High Court in the context of what constitutes ‘nuisance’ and ‘annoyance’ under Section 13(1)(c) of the Bombay Rants, Hotel and Lodging House Rates Control Act, 1947 it was held by the High Court that the terms ‘nuisance and annoyance’ are of wide amplitude covering variety of circumstances and cannot be fenced by any definite meaning.
In Noratmal v. Sobhag Kanwar (supra) a suit was filed under the Act on the ground of sub-letting and substantial damage. During the pendency of the suit tenant filed a suit for fixation of standard rent. It was held by this Court that determination of provisional rent overrides the provisions of Section 13(3) and as such the Court should have determined the standard and provisional rent under Section 7(1) and not provisional rent under Section 13(3) of the Act. Rent determined under Section 7(1) of the Act shall be deemed to be rent determined under Section 13(3) of the Act. This judgment helps in advancing the case of the appellant-tenant rather than the respondent-plaintiff, since once having fixed the provisional rent, determination of standard rent was Very essential by the Courts below which has not been done in this case.
In Firm Khetse v. Mohni Devi the question which had arisen before this Court was regarding fixation of provisional rent and the basis of fixation thereof by the trial Court, it was held that basic rent should be the rent as agreed no error on the part of the appellate Court was found in fixing provisional rent at the agreed rate. This judgment also does not help in advancing the case of the respondent in any manner.
In Haji Abdulla Haji Adam v. T. V. Hameed (supra) the question which had arisen before the Kerala High Court was that in a case where there was absence of pleading on certain important aspect of the case and the parties deliberately and knowingly participated in the proceedings before the trial Court and kept silent on the issue notwithstanding the alleged defects in the pleadings and the opposite party knew what case he was to meet, it was held that it would not be improper for the Courts to grant relief. This judgment is equally distinguishable and not applicable to this case, since specific objection has been taken by the appellant before the Courts below as well as before this Court that the pleadings were absolutely silent so that to meet essential requirements of both the grounds of subletting as well as nuisance and the learned counsel for the appellant has contended that this material deficiency in the pleadings goes to the root of the matter and there has been misappreciation of evidence by the Courts below, as result thereof for which this Court should interfere in second appeal.
In Salamat v. L.Rs. of Babu Khan Marhum (supra) this Court while dealing with the question regarding obscurity of the pleading, held that when no objection was taken when evidence was tendered on any point not covered by the pleadings it cannot be said that the Courts below have erred. This judgment is also distinguishable since not only an objection was taken by the appellant but it was also the paramount duty of the Courts below to have taken judicial notice that in absence of any pleadings, no evidence should have been permitted to be recorded without amendment thereof.
25. After hearing learned counsel for the parties and after having examined their rival claims and contentions and also on perusal of the judgments of the Courts below as well as the documents and the evidence on record and the legal propositions referred to above, I am of the opinion that the findings of the Courts below, both on the question of subletting as well as nuisance in respect of grounds taken for eviction of the tenant-appellant by the plaintiff-respondent from the suit premises under Section 13(1)(d) & (e) of the Act which have been assailed in this second appeal are based on misappreciation of evidence on the record and after taking note of substantial question of law which have been raised in this appeal, I am of the opinion that the impugned judgments dated 25-10-1988 of Addl. Munsiff, Jaipur City, Jaipur in civil suit No. 189/88 and 7th March, 1995 passed by Addl. District Judge No. 7, Jaipur City, Jaipur deserve to be quashed and set aside. I am further of the opinion that this Court in second appeal is not precluded from interfering in concurrent findings of the Courts blow if the findings so recorded are either perverse and are based on mis-appreciation of evidence or contrary to the evidence on the record and this is certainly a case which calls for interference by this Court.
26. In the result, this civil second appeal is allowed. The judgment and decree passed by Addl. Munsiff Jaipur City, Jaipur on 25-10-1988 in civil suit No. 189/88 and dated 7th March, 1995 passed by Addl. District Judge No. 7, Jaipur City, Jaipur in Civil Appeal No. 36/89 are quashed and set aside. The respondent is directed to restore the possession of the suit premises to the appellant within eight weeks from today. With regard to the rent, it is directed that the appellant shall continue to pay/ deposit the rent at the rate of Rs. 100/- p.m. as fixed by the first appellate Court under Section 13(4) of the Act and that he shall continue to pay/deposit to the landlord the rent month by month and since the dispute has already been decided in view of the order passed by this Court under Section 13(7) of the Act, the appellant shall pay the monthly rent to the respondent at the above rate regularly besides water and electricity charges. The appellant shall also be entitled to adjustment in case of any excess payment having been made in the past to the respondent as against the future rent. Since rents have gone up in the locality considerably, the respondent will be at liberty to such reasonable increase in the rent at the prevailing market rates after giving due notice to the appellant. The findings of the first appellate Court on the question that there has been no default in payment of rent on the part of the appellant in respect of the suit premises for a period of six months immediately preceding the date of institution of the suit which was incumbent upon the trial Court to consider and which it has not considered, are also confirmed. Parties are left to bear their own cost.