Rajasthan High Court
Bharat Bhushan Sharma vs Vidhya Sagar on 24 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 351/2011
Bharat Bhushan Sharma S/o Shri Yograj Sharma, House No.
4/532 Jawahar Nagar Jaipur Through Power Of Attorney Holder
Chet Ram S/o Shri Mukhram R/o Isarda House, Civil Line, Jaipur
At Present R/o A-39 Vidhyut Nagar, Ajmer Road Jaipur Raj.
----Appellant
Versus
Vidhya Sagar S/o Shri Bhagwan Das Ji, 25 New Colony Arjun
Marg, Jaipur Raj.
----Respondent
For Appellant(s) : Mr. M.C. Jain
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
24/03/2022
The appellant-tenant has filed this second appeal assailing the
decree for eviction and arrears of rent dated 20/11/2004 passed in Civil
Suit No. 24/2004 (127/95), (84/90) by the Court of Additional Chief
Judicial Magistrate No.6, Jaipur City, which has been affirmed in first
appeal No. 02/2005 by the Court of Additional District Judge No. 5,
Jaipur City vide judgment dated 10/8/2010.
It appears from the record that the appellant is tenant in the shop
in question, situated in house no. 25 New Colony, Arjun Marg, Jaipur
since 1985 at the rate of 500/- per month.
The respondent-landlord instituted civil suit for eviction on
27/7/1994 under the provisions of The Rajsthan Premises (Control of
Rent & Eviction) Act, 1950 on the ground of default subletting, non-user
and shop in question. The landlord claimed that the tenant has not paid
the rent for the period of August, 1991 to December, 1993 of 29 months
and as such has committed default in payment of rent for more than six
months. The pleadings in relation to subletting and non user were also
(2 of 4) [CSA-351/2011]
made. However, the eviction decree has been passed on the ground of
default, which has been affirmed by the first appellate court, therefore,
this court is examining the present appeal in relation to the eviction
decree passed on the ground of default.
By the judgment of trial court, it reveals that since the present
eviction suit was filed including the ground of default, under the
provisions of Act of 1950, therefore, the trial court determined the
provisional rent under Section (3) of the Act vide order dated
19/2/1998. It appears that tenant remained fail to make regular
payment of rent in compliance of the provisional determination,
accordingly, the defense of tenant was struck out under Section 13 (5)
of Act vide order dated 27/2/2002. The tenant assailed the order of
strucking out of his defense in appeal but his appeal was dismissed on
11/3/2003 and as such the order of strucking out defense of the
defendant-tenant attained finality. The trial court placed reliance on the
oral evidence of the plaintiff-landlord that the tenant has not paid rent
for the period of August, 1991 to December, 1993. Firstly, no rent
receipts or other substantive evidence was produced by the defendant
to show the payment of rent for the alleged period of default. Secondly,
since the defense of the tenant had been struck off, there was no
evidence from his side to rebut the plaintiff's evidence on the issue of
default. The trial court, on appreciation of the plaintiff's evidence,
decide the issue of default in favour of landlord and declared the
defendant-tenant as defaulter. It may also be relevant to observe that
due to strucking out the defense of defendant under Section 13(5) of
the Act, the defendant-tenant was not entitled to get the benefit of first
default under Section 13 (6) of the Act of 1950. In such factual and
legal aspect, the decree for eviction was passed on the ground of
default.
(3 of 4) [CSA-351/2011]
Simultaneously, a decree for due arrears of rent for the period of
default to the tune of 14,500/- was also passed. The defendant-tenant
assailed the decree for eviction, arrears of rent by way of first appeal.
The first appellate court considered all pleadings, evidence and material
available on record in relation to issue of default. Although the
defendant-tenant sought to produce certain additional documents with
application under Order 41 of Rule 27 CPC before the first appellate
court but since his defense has already been struck out, therefore, his
endeavour to produce additional evidence was remain fruitless.
The first appellate court, on appreciation of the plaintiff's
evidence, affirming the finding of default and eviction decree as well as
the decree of arrears of rent passed by the trial court vide its judgment
dated 10/8/2010 and dismissed the first appeal.
Against the concurrent findings of fact in relation to the issue of
default, the appellant-tenant has preferred this second appeal. The
second appeal is pending at admission stage since 3/11/2010 and there
is no interim stay order on the execution of the decree for eviction and
arrears of rent so far. No one appeared on behalf of respondent-
landlord. The actual portion of the possession and about the execution
of impugned decree is not clear before this court. However, the second
appeal has been considered on merits at admission stage.
Having heard counsel for the appellant-tenant and after perusal of
the impugned judgment, it stands clear that the two courts below have
recorded a finding of fact that the appellant-tenant has not paid rent for
the period of August, 1991 to December, 1993. In the eviction suit, the
ground of default added by way of amendment plaint was filed on
27/7/1994. It is clear that on the date of filing of amended eviction suit
on the ground of default, the appellant-tenant was in arrears of rent for
29 months and had committed default in payment of rent for more than
(4 of 4) [CSA-351/2011]
six months. Thus, the requirement of Section 13(1) of the Act of 1950
stands established in the present case. The default in payment of rent
committed by the defendant stands proved by the plaintiff's evidence
and there is no rebuttal to the plaintiff's evidence.
That apart, the defense of appellant-tenant had already been
struck out. In such facts and circumstance, under the concurrent
findings of fact based on due appreciation of evidence, this court, finds
involvement of no substantial question of law in the present second
appeal. Counsel for the appellant also could not pointed out any
infirmity, illegality, perversity or jurisdictional error in findings recorded
by two courts below.
It is trite law that for exercising the jurisdiction under Section 100
CPC, the involvement/formulation of the substantial question of law is
sine qua none. Since, no substantial question of law is involved in the
present appeal, the same cannot be entertained for admission, the
same is hereby dismissed.
However, since the appellant-tenant is said to be tenant in the
rented shop since 1985, this Court deems just and proper to grant three
months time to the appellant-tenant to vacate the rented premises, if
not already vacated, subject to payment of due arrears of rent.
The stay application and any other pending application(s), if any,
stand(s)s disposed of.
(SUDESH BANSAL),J
ANIL SHARMA /1
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