Mateen Adil vs Anees Mian
2022 Latest Caselaw 3838 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

             S.B. Civil Second Appeal No.437/2005

Mateen Aadil, S/o Wahid Ali Muslim, R/o Mohalla, Pahadia
Gadda, Tonk Raj.
                                                            ----Appellant-Plaintiff
                                     Versus
Anees Mian, S/o Chuttu Khan Muslim, R/o Mohalla Pahadia, Tonk
Raj.
                                                    ----Respondent-Defendant

For Appellant(s)           :     Mr. Praveen Jain
For Respondent(s)          :     Mr. Bharat Yadav



             HON'BLE MR. JUSTICE SUDESH BANSAL

                                  Judgment

16/05/2022

1. This second appeal has been filed by appellant-plaintiff-

landlord under Section 100 CPC assailing the judgment and decree

dated 13.07.2005 passed in Civil Appeal No.70/2003 by the Court

of District Judge, Tonk affirming the judgment and decree dated

03.09.2003 passed in Civil Suit No.221/1992 by the Court of

Additional Civil Judge (Upper Division), Tonk whereby and

whereunder civil suit for rent and eviction, filed by appellant-

plaintiff, has been decided in the manner that defendant-tenant

has been declared to commit first default in payment of rent,

however, by extending benefit of first default, the decree for

eviciton has been declined.

2. Having heard learned counsel for both parties and on perusal

of impugned judgments and record, it is not in dispute that

defendant-tenant was found defaulter in payment of rent for the

(2 of 8) [CSA-437/2005]

period 01.01.1992 to 31.10.1992 and counsel for defendant-

tenant has not disputed findings of default for the alleged period.

Hence the court is not required to consider the issue of default in

this second appeal.

3. The issue which falls for consideration by this Court in the

present second appeal is limited as to whether the defendant-

tenant is entitled to get benefit of first default or not and as to

whether the two courts below have committed illegality and

jurisdictional error in extending the benefit of first default to

defendant-tenant?

4. This Court, vide order dated 28.07.2006, framed the

following substantial questions of law to be considered in the

present appeal:-

"1. Whether the impugned judgments are vitiated and are liable to be reversed on account of non- reading and for non-considering the material admissions of the defendant regarding defaults contained in his statements of payments dated 23.05.2003 filed in the trial court?

2. Whether the defendant has not paid the current rent from January 2005 to May 2005 and therefore he is liable to be evicted on the ground of default?

3. Whether the learned courts committed legal blunder in not passing the decree of undisputed rent amount in the facts and circumstances of the case?"

5. In order to consider the aforementioned substantial

questions of law and issues fall for consideration, it is relevant to

have a look on facts of the case.

The rented premise is a shop measuring 4 X 6 ft. situated in

district, Tonk which is in tenancy of defendant-tenant w.e.f.

01.12.1989 at the rate of Rs.125/- per month. Appellant-plaintiff

(3 of 8) [CSA-437/2005]

institued a suit for rent and eviction on 13.11.1992 alleging inter

alia that tenant has committed default for more than six months in

payment of rent for the period 01.01.1992 to 31.10.1992. The

eviction suit was filed invoking provisions of Section 13 (1) of the

Rajasthan Premises (Control of Rent and Eviction) Act, 1950

(hereinafter referred to as "the Act of 1950").

The defendant-tenant in his written statement denied the

default in payment of rent.

6. During course of eviciton suit based on the ground of default,

as per scheme of the Act of 1950, provisional determination of

rent was made by trial court vide order dated 21.02.1994 under

the provisions of Section 13(3) of the Act of 1950 and the due

rent from 01.01.1992 to January, 1994 was determined.

As per provisional determination, the defendant-tenant was

required to pay the determined rent as well as the rent of

subsequent months regularly.

It may be noticeed that in case, defendant-tenant commits

any default in deposition of determined rent or for the subsequent

months, his defence against the default is liable to be struck out

and tenant cannot claim benefit of first default. Such propositon of

law and procedure is prescribed under Section 13(5 & 6) of the

Act of 1950.

7. After provisional determination, vide order dated

21.02.1994, the appellant-plaintiff moved an application dated

06.07.1996 and 23.02.2001 alleging inter alia that defendant has

committed default in depositing the provisional rent.

8. Both applications were deferred to be considered by the trial

court, vide order dated 10.10.2002, at the time of deciding the

(4 of 8) [CSA-437/2005]

suit itself. The evidence of both parties were recorded and the trial

court decided the suit finally vide judgment dated 03.09.2003.

9. A perusal of judgment dated 03.09.2003, it appears that

issue No.1 relating to default by defendant for the period

01.01.1992 to 31.10.1992 was decided in favour of plaintiff and

while deciding the issue No.3, the trial court categorically

observed that there is nothing on record to infer and to observe

that defendant has committed any default in depositing the rent

during the course of trial, in compliance of order of provisional

determination dated 21.02.1994. Though, the trial court has not

mentioned about passing any specific order dealing with two

applications dated 06.07.1996 and 23.02.2001 in its final

judgment, however, a finding of fact has been recorded that

tenant has not committed any default in depositing the rent during

the course of trial.

10. With such findings, the benefit of first default according to

Section 13(6) of the Act of 1950 was accorded to defendant-

tenant and the decree for eviciton on the ground of default was

not passed.

11. Appellant-plaintiff preferred first appeal assailing the

judgment and decree dated 03.09.2003 to the extent of granting

benefit of first default to defendant-tenant. No appeal was filed by

defendant-tenant assailing the findings of first default recorded

against him, hence the finding of first default attained finality.

12. Before the first appellate court, appellant-plaintiff contended

that defendant-tenant has not only committed default in

depositing the rent pursuant to the provisional determination

during course of trial but has also not deposited the rent during

the course of pendency of first appeal. In the memo of first

(5 of 8) [CSA-437/2005]

appeal, the period of default was alleged for January & February,

1995 and January, February, March, April, 1998 and July, 2003.

13. It is worthy to note here that defendant-tenant submitted an

application under Order 41 Rule 27 CPC on 12.07.2005 before the

first appellate court along with documents of challan receipts

showing deposition of rent in the court, in compliance of order of

provisional determination dated 21.02.1994. A chart has been

indicated in the application, showing dates of deposition which is

supported with evidence of challan receipts depositing the rent in

the court.

No reply to this application, disputing the chart of deposition

or denying the genuineness/validity of challan papers was filed by

appellant-plaintiff.

14. First appellate court while deciding the first appeal itself on

merits vide judgment dated 13.07.2005 has considered the

challan receipts with finding that these are the documents of court

record and no permission to adduce additional documents within

the scope of Order 41 Rule 27 CPC is required.

15. Learned counsel for appellant, in his long drawn arguments,

has not disputed the jurisdiction of first appellate court to consider

the challan receipts produced before first appellate court along

with an application Order 41 Rule 27 CPC nor any substantial

question of law has been framed by this Court to this effect.

16. The chart of deposition of the rent in pursuance to the

provisional determination of rent and challan receipts are available

on record and are part of record. The first appellate court, on

consideration of such challan receipts recorded a finding that it

cannot be said that defendant has committed any default in non-

compliance of deposition of rent pursuant to the order of

(6 of 8) [CSA-437/2005]

provisonal determination dated 21.02.1994. Such findings

recorded by the first appellate court are based on appreciation of

details provided by defendant-tenant in his application under

Order 41 Rule 27 CPC, supported with challan receipts.

17. A perusal of chart and challan receipts, goes to show that

rent has been deposited in the court from January, 1992 to

December, 2005. The first appeal was decided vide judgment

dated 13.07.2005. It means the entire period, post provisional

determination of during course of trial and during course of first

appeal, have been taken into consideration and no default has

been noticed.

18. In view of such findings of first appellate court, all three

substantial questions of law stand decided and answered in

negative against appellant-plaintiff.

19. After going through the chart of deposition of rent supported

with challan receipts, learned counsel for appellant tried to make

out a case of default indicating that the rent of November, 1994

has been deposited on 16.01.1995 and the rent of March, 1995

has been deposited on 18.04.1995, therefore, even as per the

chart and details provided by defendant-tenant, there is delay in

depositing the rent of two months i.e. November, 1994 and March,

1995. This argument is not tenable for the reason that firstly in

the challan receipts, rent of November, 1994 has been deposited

on 15.10.1994. Mere indication in the chart that rent of November,

1994 was deposited on 16.01.1995 is an error either typographical

or accidental. As far as deposition of rent for March, 1995 is

concerned, even if the same may be treated as delay by three

days, the period falls within the grace period of fifteen days for

which the court can extend the limiation under Section 13(4) of

(7 of 8) [CSA-437/2005]

the Act of 1950. No such specific default in deposition of the

month of March, 1995 was taken either before the trial court or

before the first appellate court, hence at the stage of second

appeal, this ground cannot be entertained more particularly when

the period of delay falls within the period of extention of fifteen

days.

20. Learned counsel for appellant-plaintiff could not point out

any infirmity, illegality or perversity in such fact findings. In case

of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar

[(1999) 3 SCC 722] and catena of other judgments passed in

case of Pakeerappa Rai Vs. Seethamma Hengsu & Ors.,

[(2001) 9 SCC 521], Thulasidhara & Anr. Vs. Narayanappa

& Ors., [(2019) 6 SCC 409], Bholaram Vs. Ameerchand,

[(1981) 2 SCC 414], Ishwar Das Jain Vs. Sohan Lal,

[(2000) 1 SCC 434] and State of Madhya Pradesh Vs. Sabal

Singh & Ors., [(2019) 10 SCC 595], has categorically held that

at the stage of second appeal, fact findings recorded by two

Courts below, based on appreciation of evidence, should be

honoured and must not be interfered with unless and until there is

some perversity, illegality or jurisdictional error which leads

manifest injustice. Once findings of fact recorded by two Courts

below are justified and based on due appreciation of evidence, re-

appreciation of evidence at the stage of second appeal in order to

draw a different conclusion is not warranted. The scope of second

appeal is confined to examine substantial question of law, which

are sine qua non to exercise powers under Section 100 of CPC.

21. The issue of default and extension of benefit of default are

purely questions of findings of fact and once the first appellate

court, on appreciation of challan receipts and material available on

(8 of 8) [CSA-437/2005]

record have passed a finding that no default has been committed

by the defendant-tenant in depositing the rent pursuant to the

provisional determination, this Court is not inclined to take a

different view. Hon'ble Supreme Court in case of Umerkhan Vs.

Bismillabi [(2011)9 SCC 684] has propounded that if a second

appeal is admitted on substantial questions 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.

22. Sicne the substantial questions of law framed by appellant-

plaintiff have already been answered negative and no other

substantial question of law involved, hence the second apeal is not

liable to succeed and accordingly the same is hereby dismissed.

No order as to costs.

23. Record of both courts below be sent back.

(SUDESH BANSAL),J

SAURABH/89

Powered by TCPDF (www.tcpdf.org)