Ratan Lal vs Satyanarayan ...
2023 Latest Caselaw 8376 Raj

[2023:RJ-JD:34388]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 395/2022

Ratan Lal S/o Paras Ram Samdani Maheshwari, Aged About 60 Years, R/o Purana Bus Stand, Ward No. 7, Kapasan, Tehsil Kapasan, District Chittorgarh.

----Appellant Versus Satyanarayan S/o Bhagat Ram Somani Maheshwari, R/o Kapasan, Tehsil Kapasan, District Chittorgarh.

                                                                      ----Respondent


For Appellant(s)              :    Dr. Sachin Acharya, Sr. Advocate with
                                   Mr. Jitendra Mohan Choudhary and
                                   Mr. Samyak Dalal
For Respondent(s)             :    Mr. Nitin Trivedi



              HON'BLE MS. JUSTICE REKHA BORANA

                                    Judgment

11/10/2023

1. The present first appeal has been filed against the impugned

judgment and decree dated 05.08.2022 passed by the Additional

District Judge, No.1, Chittorgarh, Camp Kapasan in Civil Original

Suit No.26/2014 (CIS No.815/2014) whereby the suit for eviction

and arrears of rent as filed by the plaintiff has been decreed.

2. The suit for eviction was preferred by the respondent -

plaintiff with an averment that the shop in question was rented

out to defendant Ratan Lal on rent @ Rs.6,000/- per month. As he

wanted to raise one more floor, he sought permission from the

municipality for the same and therefore, wanted the premise to be

vacated. Notice dated 04.10.2013 in terms of Section 106 of the

Transfer of Property Act, 1882 (for short 'the Act of 1882') for

termination of tenancy was served on the defendant which was

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received by him on 14.10.2013. Vide the said notice, the tenancy

was terminated w.e.f. 31.10.2013. But even after the said

termination, the tenant did not vacate the premise and hence the

suit for eviction was filed. It was also averred that the tenant had

last paid the rent for the period from 01.04.2010 to 31.07.2010

(Rs.24,000/- @ Rs.6,000/- per month) only and hence a prayer

for arrears of rent as well as mense profits was also made.

3. Written statement to the plaint was filed by the defendant

wherein he averred that he was a tenant from last 40 years and

the rent agreed upon between the parties was Rs.28,000/- per

annum and not Rs.6,000/- per month as alleged by the plaintiff. It

was further pleaded that an oral agreement was entered into

between the parties in the year 2014 whereby the term of tenancy

was further extended for a period of 5 years and hence he could

not be directed to be evicted prior to the year 2019. Regarding the

arrears of rent, it was submitted that he had deposited an amount

of Rs.28,000/- qua the annual rent for the period from April, 2013

to March, 2014 and information of the same was even given to the

plaintiff vide notice dated 07.05.2014. The defendant also pleaded

that the plaintiff had no bonafide need of the shop in question as

he was the owner of many other shops and residential premises.

4. On basis of the pleadings, the learned trial Court framed as

many as 5 issues, which read as under:

"1- vk;k oknh dh okn i= ds en ua- 1 esa of.kZr iMkSlksa dh nqdku izfroknh ds 6000@& :i;s izfrekg fdjk;s ij gS \

------- oknh 2- vk;k oknh }kjk izfroknh dks fnukad 04-10-2013 dks fn;s x;s uksfVl ls fnukad 31-10-2013 ls izfroknh dh fdjk;snkjh lekIr dj nh \

---- oknh

[2023:RJ-JD:34388] (3 of 10) [CFA-395/2022]

3- vk;k oknh dk izfroknh dh vksj fnukad 01-08-2010 ls fdjk;snkjh lekfIr dh fnukad 31-10-2013 rd rhu lky dk 2]16]000@& :i;s fdjk;k ,oa 01-11-2013 ls dCtk izkIr gksus rd mi;ksx gtkZuk jkf"k nl gtkj :i;s izfrekg dh nj ls cdk;k gS tks oknh izfroknh ls izkIr djus dk vf/kdkjh gS \

---- oknh 4- vk;k oknh izfroknh ls oknxzLr ifjlj dk fjDr dCtk izkIr djus dk vf/kdkjh gS \

------ oknh 4,- vk;k okn i= esa fdjk;k fpB~Bh dk mYys[k ugha gksus dk D;k izHkko gksxk \

------ izfroknh 5- vuqrks'k"

5. The plaintiff examined himself (PW1 Satya Narain) and one

other witness PW2 Ram Sahaya and got exhibited 5 documents

(Ex.1 to Ex.5) whereas the defendant examined himself (DW1

Ratan Lal) and one other witness DW2 Shankar Lal and got

exhibited 6 documents (Ex.A1 to Ex.A6).

6. After hearing the parties and considering the material

available on record, learned trial Court decided issue Nos.1, 2, 4 &

4A in favour of the plaintiff and issue No.3 partially in his favour.

As a consequence, the Court proceeded on to decree the suit of

the plaintiff for eviction directing the defendant to vacate the shop

in question within a period of 45 days. The suit was also decreed

for an amount of Rs.1,86,000/- qua the arrears of rent with

interest @ 6% per annum and further for Rs.7,500/- per month

qua the use and occupation till the date of handing over the

vacant possession of the shop.

7. Learned Senior counsel for the appellant submitted that the

Court below erred in deciding issue No.4A against the tenant

appellant despite the fact that no pleading qua the rent note

(Ex.5) was even made in the plaint. On a fact/document not

[2023:RJ-JD:34388] (4 of 10) [CFA-395/2022]

pleaded, no evidence can be permitted to be led and as a

consequence the document cannot be read in evidence. Learned

counsel submitted that this was a clear case of variance in

pleading and proof and therefore the finding of the Court below on

issue No.4A was totally in contravention to law. In support of his

contention, learned counsel relied upon the judgments rendered in

Biraji Alias Brijraji and Another Vs. Surya Pratap and

Others, (2020) 10 SCC 729; M. Chinnasamy Vs. K.C.

Palanisamy and Others, (2004) 6 SCC 341 and Shivanshu

Atre Vs. Smt. Reena Atre, 2018(2) RLW 1459 (Raj.).

8. Learned Senior counsel further submitted that it was clearly

proved on record that the tenancy was not per month basis but

was per year basis. The notice (Ex.A1) whereby the defendant

informed the plaintiff of depositing the rent @ Rs.28,000/- per

annum was not denied, controverted or rebutted by the plaintiff

hence the same having not been denied, would be deemed to

have been admitted. Once admitted, the Court could not have

concluded that the tenancy was on per month basis. As the

tenancy in the present matter was not per month, the notice

issued under Section 106 of the Act of 1882 was ipso facto not

valid in terms of law and the tenancy could not have been

concluded to have terminated vide the said notice.

9. The next ground raised by learned counsel for the appellant

is that no independent notice for determination of rent was served

by the plaintiff - landlord and hence the Court could not have

concluded the rent to be Rs.6,000/- per month. Further, the

plaintiff did not lead any evidence regarding prevailing market

price, rent of the shops in adjoining areas etc., meaning thereby

[2023:RJ-JD:34388] (5 of 10) [CFA-395/2022]

there was no evidence available on record to determine the mense

profits. However, learned trial Court ordered the same to be paid

@ Rs.7,500/- per month without any evidence or basis which also

deserves to be set aside.

10. Responding to the first ground as raised by learned counsel

for the appellant, learned counsel for the respondent submitted

that so far as the factum of rent note having not been pleaded in

the plaint is concerned, the reason for the same was very well

acknowledged by the Court below. It was clear on record that the

rent note was submitted by the plaintiff - landlord before the

office of the Registrar (Stamps) to get it officially stamped in

terms of law and when the same was obtained after being

sufficiently stamped, permission to place the same on record was

sought by the Court. Vide order/order-sheet dated 12.08.2016,

the permission was granted by the Court and rent note was

permitted to be taken on record. Because of the rent note being

permitted to be taken on record, the defendant was granted

liberty to file an amended written statement which was even filed

by him without raising any objection at that point of time. The

defendant cannot now therefore raise the said ground.

11. In reply to the ground raised by learned counsel for the

appellant that the tenancy was annual, learned counsel for the

respondent submitted that not a single document to prove the

said fact was placed on record by the defendant. So far as deposit

of an amount of Rs.28,000/- on 03.05.2014 is concerned, the

same was clearly after service of notice/summons of the present

suit. Hence, the same could be of no consequence and was rightly

not relied upon by the Court below.

[2023:RJ-JD:34388] (6 of 10) [CFA-395/2022]

12. So far as the determination of rent is concerned, no

independent notice for the same was required in terms of law and

once the notice in terms of Section 106 of the Act of 1882 was

proved to be served, the tenancy terminated w.e.f. 31.10.2013

and subsequent to that, the defendant was nothing more than a

trespasser. Being a trespasser, he was liable to pay mense profits

qua the use and occupation of the shop in question and the Court

below rightly fixed the same @ Rs.7,500/- per month which

cannot be termed to be exorbitant by any stretch of imagination.

13. Heard learned counsel for the parties and perused the

material available on record.

14. Admittedly, the factum of rent note dated 01.04.2010 was

not pleaded in the plaint. The said document was prayed to be

taken on record vide an application under Order VII Rule 14(3),

CPC by the plaintiff. The said application was allowed vide order

dated 12.08.2016 with a condition that to rebut the same, the

defendant would be entitled to file amended written statement

and documents in support thereof, if any. In pursuance to the

said order, the amended written statement was even filed by the

defendant on 09.09.2016. As a consequence of the amended

written statement been filed, even an additional issue, being Issue

No.4A, was framed and added by the Court vide order dated

15.10.2016. Meaning thereby, firstly, the document, that is, the

rent note was taken on record with the permission of the Court.

Secondly, the defendant was given complete opportunity to rebut

the same which he even availed. Thirdly, an issue qua the same

was also framed. Issue No.4A as framed by the Court reads as

under:

[2023:RJ-JD:34388] (7 of 10) [CFA-395/2022]

"4,- vk;k okn i= esa fdjk;k fpB~Bh dk mYys[k ugha gksus dk D;k izHkko gksxk\"

15. The evidence was led by both the parties on all the issues

and on basis of the same, the Court below decided issue No.4A

against the defendant as the burden to prove the same was on

him. The Court below, while deciding issue No.4A, held the

reason for non-filing of the rent note (Exh.5) at the time of filing

of the suit to be plausible as the same was filed before the

concerned officer to be officially stamped. The Court below

considered the document placed on record by the plaintiff to prove

the factum of the document having been filed before the

concerned officer and concluded that once an opportunity to rebut

the said document vide an amended written statement and a

permission to file any document to rebut the same was granted,

non-filing of the rent note earlier would not be fatal to the present

suit. In the opinion of this Court, the finding as reached by the

Court below on issue No.4A does not deserve any interference for

the reasons mentioned in the following paras.

16. Admittedly, in the present matter, the factum of tenancy has

not been denied by the defendant. The Court below reached to a

specific finding that the signatures on document Ex.5 were of the

defendant. It is nowhere the case of the defendant that the rent

note did not bear his signatures. Further, the finding of the Court

below regarding signatures on the rent note to be of the

defendant has not even been challenged in the present appeal.

Therefore, once execution of the rent note itself has been proved

and has not been denied by the defendant, the ground that no

[2023:RJ-JD:34388] (8 of 10) [CFA-395/2022]

pleading qua the same was made in the plaint would be of not

much consequence and cannot be held to be tenable moreso,

when complete opportunity to rebut the said fact/document was

given to the defendant.

17. The judgments as relied upon by learned counsel for the

appellant definitely do not apply to the present matter as in the

opinion of this Court, the present is not a case of variance of

pleading and proof. The factum of tenancy was very well pleaded

in the plaint and the same has not been denied rather been

admitted by the defendant. The rent note (Ex.5), to the best, can

be said to be a document to substantiate the said pleading. The

said document cannot be termed to have made out a complete

new case so as to hold that there was no pleading whatsoever,

qua the same in the plaint. As is the settled position of law, a fact

is to be pleaded and the evidence in support of the said fact is not

to be pleaded. The factum of tenancy has very well been pleaded

in the plaint which is an admitted fact and the rent note

substantiating the said fact can, to the best, be treated to be a

document to prove the said pleading. Further, the order dated

12.08.2016 was never assailed by the defendant and even the

cost as imposed on the plaintiff for allowing the application under

Order VII Rule 14(3), CPC was received by the defendant.

Meaning thereby, the order dated 12.08.2016 was accepted by the

defendant and no grievance qua the same remained once the cost

had been accepted by him.

18. In view of the above observations, this Court is of the clear

opinion that the finding of the Court below on issue No.4A does

not deserve any interference and the same is hereby affirmed.

[2023:RJ-JD:34388] (9 of 10) [CFA-395/2022]

19. So far as notice dated 17.05.2014 served by the defendant

on the plaintiff with an information of deposit of the annual rent

@Rs.28,000/- is concerned, admittedly, the same was served after

service of notice/summons of the present suit on the defendant.

As evident from the record, the date of filing of the suit in

question was 20.03.2014 and the notice Ex.D1 was dated

17.05.2014. Undisputedly, no reply to the said notice denying the

facts stated therein could have been given by the plaintiff prior to

filing of the suit. Any notice served after institution of the suit and

not replied to, cannot be considered to be an admission of the

plaintiff. Moreover, it has nowhere been pleaded by the defendant

that the tenancy was annual and not on monthly basis. The only

fact pleaded is that at present, the rent was agreed to be paid

@Rs.28,000/- per annum. Further, not a single document, except

notice dated 17.05.2014, has been placed on record by the

defendant to prove that the rent was ever paid on annual basis as

averred by him. As observed above, notice dated 17.05.2014 was

of no consequence and hence, the finding on issue No.1 that the

tenancy was per month basis @ Rs.6,000/- per month, as reached

by the Court below also does not deserve any interference.

20. The present is a matter governed by Section 106 of the Act

of 1882. No objection regarding validity of the notice under

Section 106 of the Act of 1882 has been raised by the appellant.

It is the settled position of law that if a notice in terms of Section

106 of the Act of 1882 is validly served on the tenant, the tenancy

terminates w.e.f the date mentioned in the said notice. The

requirement under Section 106 having been fulfilled and the

notice being valid in terms of law, the tenancy in the present

[2023:RJ-JD:34388] (10 of 10) [CFA-395/2022]

matter did terminate and hence, the plaintiff was entitled to a

decree for eviction in his favour. In the opinion of this Court, the

said decree having rightly been granted in favour of the plaintiff,

the impugned judgment and decree does not deserve any

interference by this Court. The findings on issue Nos.2 and 4 also

are therefore, affirmed.

21. So far as grant of mesne profits @ Rs.7,500/- per month is

concerned, no challenge to the same has been laid in the present

appeal and therefore, this Court does not require to go into the

said issue. Even otherwise, the last paid rent in the month of

March, 2014 was @Rs.6,000/- per month and the Court below has

directed the defendant to pay mesne profit @Rs.7,500/- per

month in the year 2020 which, in the opinion of this Court, cannot

be said to be exorbitant by any means. The finding on issue No.3

also therefore, does not deserve any interference and is hereby

affirmed.

22. The findings on all the issues having been affirmed by this

Court, no interference in the impugned judgment and decree is

called for and the present appeal is therefore, dismissed.

23. Stay petition and all pending applications, if any, stand

disposed of.

(REKHA BORANA),J 442-T.Singh/-

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