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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
S.B. CIVIL SECOND APPEAL NO.145/2006
Lekhraj Mehta
versus
Legal representatives of late Sh. Rikhab Chand
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.Arun Bhansali, for the appellant.
Mr.M.S.Rajpurohit, for respondents
DATE OF JUDGMENT : 18th July, 2008.
ORDER
1. Heard the learned counsels for the parties for final disposal as
agreed by them.
2. Following substantial question of law is framed for
consideration by this Court:
“Whether the learned first appellate Court’s reversal of
trial court’s eviction decree on the finding regarding
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second default on the part of the defendants – tenants is
perverse and erroneous where the rent for the period
from 1.10.1994 to 30.9.1995 was deposited by the
tenant under Section 19A of the Act and the second
default for the period from 1.10.1995 to 30.5.1996 when
the suit was filed by the plaintiff came into existence on
the part of the respondents – defendants?
2. This appeal arises out of first appellate Court’s judgment
dtd.15.2.2005, whereby the learned appellate Court allowed the
defendants’ appeal and set aside the eviction decree of the learned
trial Court dtd.5.11.2003 which was passed on the ground of default.
This court issued notices to the respondents on 20.9.2007, noticing
the contention of the appellant.
3. The learned counsel for the appellant – plaintiff submits that
the learned trial Court had clearly found that for a period of 1.10.1994
to 30.9.1995, the rent was remitted by money order to the plaintiff –
landlord, but the same was returned and therefore, the said rent was
deposited by the defendants – tenant in the Court under Section 19A
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of the Rajasthan Rent Control Act, 1950. The plaintiff had accepted in
his statement that on 10.10.1995, the said money was received by
him. However, the learned counsel for the appellant – plaintiff
submits that since the present suit for eviction was filed by the
plaintiff on 30.5.1996, even assuming that the rent for the period from
1.10.1994 to 30.9.1995 was tendered/deposited by the defendants –
tenants, there was no evidence on the record that the tenant had not
committed second default by not paying rent to the plaintiff –
landlord for the period from 1.10.1995 to 30.5.1996, the date of filing
of the suit.
4. The learned trial Court had given a categoric finding that the
rent after the period from 30.9.1995 was not paid by the defendants –
tenant. The learned lower Appellate Court while reversing the
decree of eviction at page 4 of the impugned judgment, has given the
finding that for the period after 1.10.1995, the defendants appear to
have paid advance rent of one year on 30.10.1995 and therefore, the
learned trial Court had committed an error in passing the eviction
decree.
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5. The learned counsel for the appellant – plaintiff submits that
there was no such evidence on the record either before the learned
trial Court or before the appellate Court on the basis of which the
appellate Court gave the aforesaid finding about the advance rent of
one year for the period commencing from 1.10.1995 and admittedly
for a period of six months, second default before the date of filing of
the suit had occurred on the part of the defendants – tenant and
therefore, the learned appellate Court’s finding is perverse.
6. The learned counsel for the respondents – defendants failed to
point out any evidence on record on the basis of which the said
finding of the appellate Court could be supported and sustained to the
effect that the advance rent of one year for a period commencing from
1.10.1995 was deposited in advance by the defendants tenant on
31.10.1995. This Court has also perused the record of the learned trial
Court as well as the appellate Court and there is no evidence on the
record to this effect. The finding of the learned lower Appellate Court
is not supported by any evidence on record. There is no denial or
dispute on the fact that even if the rent for a period upto 1.10.1994 to
30.9.1995 may be taken to have been deposited by the tenants under
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Section 19A of the Act, even then there was no further deposit of rent
for a period of six months before the date of filing of the suit and
thus, admittedly, the second default was committed by the defendants
– tenants. It is not understood how the learned first appellate Court
observed that the tenant appears to have paid advance rent of one
year.
7. In these circumstances, the present second appeal is allowed
and the impugned order of the first appellate Court dtd.15.2.2005 is
set aside and the judgment and decree of eviction of the learned trial
Court dtd.5.11.2003 is restored. The defendants – tenants shall hand
over the vacant and peaceful possession of the suit premises to the
appellant – plaintiff within a period of three months from today. No
order as to costs.
(Dr.VINEET KOTHARI)J.
Item No.109
Ss/-