GOPAL SARAN Vs. SATYANARAYANA

JUDGEMENT

(1.) This appeal by special leave is against the judgment and order of the Division Bench of the High Court of Rajasthan dated 23rd February, 1988. The appellant is the tenant in the suit premises. The premises in question is a shop situated outside Delhi Gate, Udaipur, in the State of Rajasthan. In the said shop the appellant carried on the business of opticals. This fact is undisputed. He asserted that he was also running the business of advertisement by way of display of various advertisement boards (hoardings) at various places in the city of Udaipur. The case of the appellant was that though the appellant had taken the premises on rent on the basis of oral tenancy on 1st August, 1971, the rent-note in fact was executed on 30th May, 1972. The respondent had filed the suit for eviction of the tenant-appellant on three grounds, namely, (i) that the tenant-appellant had parted with possession of the roof of the said shop-room by putting up an advertisement board, (ii) by putting up such advertisement board, fixing the same on the roof of the said shop-room with iron angles, the appellant had caused material alteration to the premises; and (iii) the appellant had defaulted in payment of rent. On or about 20th April, 1979, the trial court decreed the suit on the ground of default in payment of rent, material alteration and sub-letting. The appellant preferred an appeal before the learned District Judge, Udaipur. who remanded the case back to the trial court for trial on all the three issues, on the ground that the appellant had not been allowed to cross-examine the respondent or to adduce evidence in defence. On remand. the trial court held that the appellant had caused material alteration by fixing the board on the roof; had parted with possession of the roof by such fixing of the board; and had committed default in payment of rent. Accordingly, a decree was passed against the appellant for causing material alteration and for parting with the possession of the roof but no decree was passed by the trial court on ground of default because the said default was held by the learned Trial Judge to be the first default. The appellant thereafter filed first appeal against the said judgment and decree passed by the trial court on 9th November, 1984. By the judgment and decree dated 20th March, 1987 the learned District Judge allowed the said appeal holding, inter alia, that by displaying the advertisement board the appellant had not caused any material alteration of the premises and display of such advertisement hoardings did not amount to parting with possession of the roof of the premises. In respect of default, on an analysis of the dates of payment it was held that there was no default in payment of rent for six months. The learned Trial Judge had held that the default was the first default therefore, there could be no decree for eviction on this ground. So even if the learned District Judge would have affirmed the findings of the Trial Court on the issue of default, there could not have been a decree in the said suit on the ground of default. The plaintiff-respondent preferred in appeal before the High Court. The said appeal was allowed only on the issue of parting with possession holding that the display of the board amounted to parting with possession of the premises. Accordingly, the decree for eviction under section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter mentioned as the 'Act', was passed. Section 13 of the said Act deals with the grounds for eviction of tenants. By clause (a), sub-section (1) of the said section provides that notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable under the said Act unless it is satisfied, inter alia, that the tenant had neither paid nor tendered the amount of rent due from him for six months. Sub-clause (b) of sub-section (1) of the said section makes the tenant liable to eviction if he has willfully caused or permitted to be caused substantial damage to the premises. Clause (e) of sub-section (1) of section 13 under which the decree in question, in the instant case, was passed provides as follows :

(2.) The High Court found that the tenant-appellant had mentioned that they would not part with the possession, notwithstanding hat the tenant-appellant had parted with the possession which was apparent, according to the High Court, from Ex. 6 and the statement of D.W.1 that he had charged rent for installing this board. These two factors went to show, according to the High Court, that the defendant had parted with the possession of part of the terrace so as to enable the Paramount Services to install the board in the premises. The Court accepted the submission on behalf of the respondent-landlord that there was parting with possession and the landlord was entitled to a decree for eviction under section 13(1)(e) of the Act. It may be mentioned that two other submissions were urged before the High Court on behalf of the landlord-respondent, namely, that the rent was tendered and that when it was refused by the landlord, the tenant had deposited the rent in the Court under section 19-A of the Act had not been established. There was also the finding on the issue of material alteration and that was also not established by the respondent landlord. But the High Court, in view of this finding under section 13(1)(e) of the Act, as set out hereinbefore, found it unnecessary to go into those reasons and passed a decree for eviction. Aggrieved thereby, as mentioned hereinbefore, the tenant has come up in appeal to this Court.

(3.) We find a certain amount of confusion as to what was-the actual state of affairs. The pleadings of the plaintiff-respondent, the landlord in connection with the allegations of parting with possession are set out in paragraphs 5, 6 and 8 of the plaint and these have been answered by the appellant in paragraphs 5, 6, 8 and 9 of the written statement. It may be appropriate at this stage to set out the same both in Hindi as well as in English. Paragraph 5 is as follows :