HARI SINGH Vs. KANHAIYA LAL

JUDGEMENT

(1.) The issue raised in this appeal arises under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). The appellant is the landlord and respondent the tenant. The question raised by the appellant is, whether the High Court was right in setting aside the concurrent finding of facts in second appeal In other words, whether there existed any substantial question of law and the High Court without framing any substantial question of law was justified in interfering with the concurrent finding of both the Courts below The appellant also challenges that part of the order of the High Court confirming the first appellate Court's order which holds no default in payment of rent by the respondent. In short, the suit of the landlord was for the eviction of the respondent on grounds of default in payment of rent, sub-letting of the premises in question and creating nuisance which was decreed. The appellate Court confirmed the finding of sub-letting and nuisance but set aside the finding of default. In second appeal the High Court confirmed first appellate Court's finding that there is no default but set aside the concurrent findings that the respondent sub-letted the premises and created a nuisance.

(2.) In order to appreciate the controversy raised we deliver the following short facts: The respondent took two shops and one godown along with Chabutra being a portion of House No. 2131, Subji Mandi, Johri Bazar, Jaipur, at a monthly rent of Rs. 45 per month with Rs. 5 per month for water charges. The case of the appellant-landlord is that respondent sub-letted one of the shops to one Mohd. Ishaq and sub-letted the godown to one Hamid. This apart, he failed to pay the rent for a period of about 2 years and 11 months totalling Rs. 1750/-. He also blocked the 11 feet wide entrance which is the only passage for the appellant for going to his residence by placing the bags of onion and other vegetables on both the sides of the passage. In fact it blocks about 8 feet passage leaving hardly 3 feet which is causing serious nuisance to the appellant. On 15th February, 1977 a notice was served on the respondent followed by filing a suit on 12th January, 1978 for eviction from the said premises on the ground of default in payment of rent, sub-letting and nuisance. Within one week on 19th January, 1978 the appellant also filed another suit for fixation of standard rent under Section 6 of the aforesaid Act. On 3rd May, 1978 the trial Court in the later suit fixed provisional standard rent at Rs. 100 per month under Section 7 of the said Act w.e.f. 12th January, 1978. The respondent as a consequence of the same deposited rent at the said rate for the period 12th January, 1978 to 16th September, 1978. However, the respondent defaulted in paying the rent at this rate for a period subsequent to 17th September, 1978. This fact was incorporated in the plaint through an amendment to his plaint which was allowed and the same was incorporated as para 5(A) of the said plaint. This amendment pleads default of payment of rent for a period subsequent to the said provisional fixation of rent and consequential liability for eviction under Section 7(4) of the Act.

(3.) According to the respondent, the trial Court on 13th April, 1978 determined the provisional rent at Rs. 45 per month under Section 13(3) of the said Act hence determination of provisional standard rent under Section 7 on 3rd May, 1978 would only means fresh redetermination or modification of the amount payable under Section 13(3) has to be made before consequence of eviction is to be implemented. On the other hand counsel for the appellant stressed that the trial Court struck out the defence of the respondent under Section 13(5) on account of his failure to deposit provisional rent as fixed under Section 7. The appeal against this was also dismissed by the appellate authority on 5th August, 1983. Even revision petition was also dismissed by the High Court on 18th February, 1987. Thus this order became final as it was not challenged before this Court. Repelling this submission of finality, learned counsel for the respondent submits that the revisional order itself left the matter open to be raised later, hence there was no need to challenge the revisional order. Reliance is placed on the following observations in the said revisional order.