Rajasthan High Court
Habibuddin vs Hari Charan on 7 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 201/2005
Habibuddin S/o Shri Niyamat Khan r/o Phootakot Mohalla
Dholikhar, Karauli Raj.
----Appellant/Defendant
Versus
Haricharan S/o Srilal r/o Choudhary Pada, Karauli Raj. (died)
1/1 Mohan S/o Late Shri Haricharan
1/2 Poonam S/o Late Shri Haricharan
1/3 Narendra S/o Late Shri Haricharan
1/4 Susheela D/o Late Shri Haricharan
1/5 Anita D/o Late Shri Haricharan
1/6 Amita D/o Late Shri Haricharan
1/7 Bhavna D/o Rajesh (Predeceased son of Haricharan)
All permanent resident of Mohalla Chaudhary Pada, Karauli.
----Respondents/Plaintiff
For Appellant(s) : Mr. L.L. Gupta with
Mr. Vikram Jonwal
For Respondent(s) : Mr. Shiv Charan Gupta
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
07/04/2022
1. With the consent of learned counsel for both parties, the
second appeal itself has been heard on merits.
2. This second appeal has been filed by appellant-defendant-
tenant (hereafter referred 'tenant') against the judgment and
decree dated 15.02.2005 passed by District Judge, Karouli
whereby the appeal filed by the appellant was dismissed and
upheld the judgment dated 29.03.2001 in suit No.35/1998 passed
by Judicial Magistrate, Karauli whereby the suit of eviction was
decree against the tenant.
(2 of 6) [CSA-201/2005]
3. The rented premise is a shop measuring 5 X 7 sq. feet
situated at Phoota Kot, Mohalla Dholikhar, Karauli which is in
tenancy of the appellant since 1964 at the rate of Rs.10/- per
month. The dispute of eviction is pending since 1969. In the first
eviction suit No.68/1969, the appellant-tenant was declared
defaulter in payment of rent, however, he was granted benefit of
first default. Thereafter, it appears that tenant committed second
default for the period 1.02.1995 to 31.03.1998 and on such
default, the second civil suit for eviction No.35/1998 was filed,
which has been decreed by the trial court on the ground of second
default vide judgment dated 29.03.2001. The judgment of trial
court has been affirmed in first appeal vide judgment dated
15.02.2005.
4. While admitting the second appeal, this Court observed in
the order dated 25.04.2005 that the appellant shall continue to
pay the rent month by month and in case of default for three
consecutive months, the stay order shall automatically stand
vacated.
5. Respondents have filed an application dated 04.07.2011
alleging inter alia that the tenant has committed default in
payment of rent during the pendency of this appeal for more than
twelve months from January 2010 to January 2011, as the rent for
this period was deposited on 07.03.2021 in the bank account of
respondent-landlord.
6. No reply to this application has been filed by the appellant-
tenant till date.
7. The present eviction suit was led on 02.03.1998 under the
provisions of Section 13 of the Rajasthan Premise (Control of rent
and eviction) Act, 1950 (hereinafter "the Act of 1950"). The
(3 of 6) [CSA-201/2005]
eviction suit filed on the ground of default and bonafide necessity.
It was averred that defendant-tenant committed first default for
the period from November 1968 to June 1969 and the first civil
suit for eviction was decreed vide judgment dated 24.08.1974 on
the ground of default. However, in appeal, the benefit of the
Section 13-A of the Act of 1950 was accorded to the defendant-
tenant, declaring him the first defaulter. It was averred that after
09.11.1976, the defendant has again committed default in
payment of rent which is the second default. The arrears of rent
for period from 01.02.1995 to 31.01.1998 were also claimed.
8. Appellant-defendant submitted written statement on
16.07.1999 and contended that in 1976 he sent money order for
payment of rent to the plaintiff but plaintiff refused to accept the
money order. Thereafter, the defendant has deposited the rent
through tender in the court under Section 19-A of the Act of 1950.
9. The trial court, after settlement of issues, recording of
evidence of both parties, considered the issue of second default. It
was found that in the previous Civil Suit No.165/1969, at the
stage of first appeal, the defendant has been given benefit of first
default and the copy of previous judgments are available on
record.
10. As far as, issue No.2 pertaining to second default is
concerned, it was found that rent deposited by the tenant under
Section 19-A is not followed the ratio as propounded by Hon'ble
the Supreme Court in case of Kuldeep Singh Vs. Ganpat Lal
[(1996) 1 SCC 243] was relied upon. On overall appreciation of
evidence of parties including documents of tender through which
rent was deposited in the court, it was observed that the tenant
has committed second default in payment of rent before filing the
(4 of 6) [CSA-201/2005]
present eviction suit on 02.03.1998. The trial court also decided
the bonafide necessity in favour of the landlord. Finally, decree for
eviction was passed on the ground of default and bonafide
necessity vide judgment dated 19.03.2001.
11. The appellant-tenant preferred first appeal. During course of
first appeal, the landlord's son Rajesh, for whom the necessity of
rented shop was alleged, passed away, therefore the issue of
bonafide necessity was not pressed. The appellate court heard the
appeal on the issue of second default, the appellate court re-
considered the validity of deposition of rent under Section 19-A of
the Act of 1950, and found that the procedure as prescribed under
the statue was not followed, as such the deposition is not valid.
Findings of the trial court, declaring the tenant as second defaulter
in payment of rent for the period in between 1976 to 1995, were
affirmed. Accordingly, the first appeal was dismissed vide
judgment dated 15.02.2005.
Since on the issue of second default, there is concurrent
findings of fact by two courts below duly passed on appreciation of
evidence and consideration of the deposition of rent under Section
19-A of the Act of 1950. Both courts have found that the
procedure was not followed by the defendant-tenant and the rent
deposited before the court is invalid, accordingly, the defendant
has committed second default. Substantial questions of law as
formulated by this Court require re-appreciation of findings for
adjudication. It is a settled proposition of law that while exercising
the powers by the High Court under Section 100 of CPC, re-
appreciation of findings is not required unless and until the
findings of fact recorded by two courts below suffer from any
perversity. Counsel for appellant could not point out any infirmity,
(5 of 6) [CSA-201/2005]
illegality, perversity or jurisdictional error in the fact findings of
two courts below in relation to the issue of second default.
12. Further, it has also come on record that during course of
penedency of this second appeal, appellant-tenant has again
committed a default in payment of rent for the period January
2010 to January 2011. Considering the conduct of the appellant-
tenant and the old pendency, coupled with the concurrent findings
of fact, this Court is not inclined to interfere with the findings of
the impugned judgment and eviction decree.
13. Hon'ble The Supreme Court, in case of Kondiba Dagadu
Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] has
categorically held that the concurrent findings of fact recorded two
courts below need not to be disturbed under Section 100 CPC.
Further, Hon'ble the Supreme Court, in case of Umerkhan Vs.
Bismillabi [(2011)9 SCC 684] has propounded that if a second
appeal is admitted on substantial question of law, while hearing
second appeal finally, can re-frame substantial question of law or
can frame substantial question of law afresh or even can hold that
no substantial question of law involved, but the High Court cannot
exercise its jurisdiction of Section 100 CPC without formulating
substantial question of law.
14. In view of the aforesaid impugned judgments for eviction
passed on the ground of second default and the fact of further
default, during the pendency of this second appeal, this Court is
not inclined to interfere with the judgment and decree for eviction
against the appellant and the same are affirmed. However, since
the appellant is in possession since long, the appellant is allowed
to retain the possession of rented shop for a period of three
(6 of 6) [CSA-201/2005]
months, subject to payment of arrears of rent and the future rent
as mesne profits.
15. Accordingly, this second appeal stands disposed of.
16. Since the appeal itself is disposed of, the application
(No.01/2022) also stands disposed of.
(SUDESH BANSAL),J
SACHIN/103
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