KANHAIYA LAL Vs. HARI SINGH

JUDGEMENT

(1.) This civil second appeal under Section 100, C. P.C., 1908 has been preferred to this court against the judgment and decree, dated 7th March, 1995 passed by Addl. District Judge No. 7, Jaipur City, Jaipur whereby the first appellate court partly allowed the appeal on the ground of default preferred by the defendant-appellant while maintaining the decree for eviction of the appellant from the suit premises on the grounds of nuisance and sub-letting.

(2.) The facts giving rise to the filing of this appeal briefly stated are that a civil suit for eviction of the defendant-appellant (hereinafter referred to as the 'appellant') from the suit shop situated in old sabji mandi behind Johari Bazar, Jaipur, was filed by the plaintiff-respondent (hereinafter referred to as the'respondent'): It was alleged in the suit that the suit shop was rented out to the appellant at the rate of Rs. 45/- per month and that it was an old tenancy. The plaintiff filed the said suit for eviction of the appellant on three grounds under Section 13(1)(a), (d) and (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short as "the Act"), i.e., that the tenant had neither paid nor tendered the amount of rent due from him for six months, that the tenant had created nuisance or had done any act which is inconsistent with the properties for which he was admitted to the tenancy of the premises or which is likely to affect adversely the landlord's interest therein and that the tenant had assigned, sublet or otherwise parted with the possession of, whole or any part of the premises without the permission of the landlord. The trial Court framed four issues for the purpose of deciding the suit including the issue of relief and default committed in the payment of rent. The respondent examined four witnesses in his defence including himself while the appellant examined three witnesses including himself in support of their case. The trial Court on the pleadings of the parties framed the following issues:

(3.) The first appellate court reversed the findings of the trial court on the issue of default in payment of rent, while maintained the decree of eviction on the ground of subletting and nuisance. On the question of default in payment of rent it was observed by the first appellate court that the interim rent of the suit shop was fixed at the rate of Rs.45/- p.m. Since there was a dispute regarding the rate of rent between the parties while the respondent alleged that the rate of rent was Rs. 100/- p.m., the appellant alleged that it was Rs. 45/- p.m. In order to settle the dispute between the parties the trial court fixed interim rent at the rate of Rs. 45/- p.m. and directed the appellant to deposit the interim rent at the rate of Rs. 45/- p.m. under Section 13(3) of the Act till the rent is finally determined by the court. The appellant continued to deposit the interim rent at the said rate and he could not be held liable to deposit the rent at the enhanced rate of Rs. 100/- p.m., particularly when the rate of rent had not finally been determined by the trial Court. The first appellate court has further observed that unless the rent is finally determined at the rate of Rs. 100/- p.m. the appellant was justified in depositing the rent at the rate of Rs. 45/- p.m. which was interim rent as fixed by the court. The first appellate court has further observed that merely because there was delay of few days in depositing the interim rent, the appellant cannot be held liable and that his defence cannot be stuck off on the said ground, since the appellant had tendered the payment of rent which was accepted by the respondent as landlord and hence no decree for eviction on the ground specified in clause (a) of subsection (1) of Section 13 of the Act could be passed against the appellant. It was further observed by the first appellate court that onus of proving the default in payment of rent was on the respondent and since he had failed to discharge the same by proving default by way of satisfactory evidence, the appellant could not be held liable for the same. The contention of the respondent before the first appellate court that earlier also the appellant had committed default in payment of rent, was not tenable, since the interim rent was fixed at the rate of Rs. 45/- p.m. and that the appellant had made the payment of rent continuously at the said rate and, therefore, when the rate of rent was not finally determined at the rate of Rs.100/-p.m. as alleged by the respondent, the appellant could not be held liable for payment of deficit amount on the ground of default. The appellant in compliance with the subsequent order of the trial Court had also deposited rent including the arrears of rent at the rate of Rs. 100/- p.m. and that there was no default and rather he was entitled for adjustment of the arrears of' rent.