CHIMANDAS Vs. EHANWARLAL

JUDGEMENT

(1.) THIS is a Civil Revision directed against the judgment of the learned District Judge, Ajmer, dated 11th of March, 1976 by which she dismissed the appeal of the respondent and affirmed the judgment of the learned Additional Civil Judge, Ajmer, in Civil Miscellaneous' Application No. 1 of 1976.

(2.) THE facts out of which this revision arises may be stated in brief as follows : The respondent Bhanwarlal filed a suit for arrears of rent and ejectment in respect of a house against one Natharmal in the Court of Munsif, Ajmer City West amongst others on the ground of default in payment of rent. The tenant Natharmal contested the suit and denied that he had committed any default so as to warrant a decree of ejectment against him. He also contested the other grounds of ejectment. The learned Additional Civil Judge in whose court the case came to be transferred, decreed the suit holding, that -'Natharmal tenant had committed default in payment of, rent. Being aggrieved by the decree of the trial court, Natharmal filed appeal in the court of District Judge, which ultimately came to be transferred in the court of Additional District Judge, Ajmer. In the memo of appeal, Natharmal took a ground that he had not committed default in the payment of rent. Natharmal, however, died during the pendency of the appeal, on 24th of January, 1974, and his heirs were brought as his legal representatives on the record. In the appellate court, the legal representatives did not contest on the ground of default and conceded that they could not claim protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter called the Act as the protection under the Act had come to an end with the death of the statutory tenant, namely, deceased Natharmal. In view of this concession made by the learned Counsel for the appellant, the appellate court did not decide the point of default and other grounds based on the statutory protection available to the tenant under Section 13 of the Act. Before the appellate court the legal representatives only contended that the notice determining the tenancy was invalid and, therefore, the suit was liable to be dismissed. That contention however, did not find favour with the appellate court which dismissed the appeal and upheld the decree of the trial court.

(3.) IN the mean time the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance No. XXVI of 1975 was promulgated on '29th of September, 1975 which was followed by an Act in similar terms. Under Clause (e) of Section 13A of the said Ordinance it was provided that no decree for eviction passed by any Court before the commencement of the Amendment Ordinance shall be executed against the surviving spouse, son, daughter and other heirs as were referred to in sub -Clause (b) of Clause (1) of Section 3 of the Act if such decree was solely passed on the ground referred to in Clause (d) of Section 13A. Relying upon the provisions of Clause (d) of Section 13A, the legal representatives of the deceased that is the petitioners before me moved an application in the court of Additional Civil Judge stating that decree passed against them was nullity in view of Clause (d) of Section 13A of the Act. It was inter alia stated in that application that decree in question was not passed oh any of the grounds contained in Section 13 of the Act and so it was a nullity. The learned Additional Civil Judge observed that the petitioners in the High Court undertook to vacate the premises provided they were given time to vacate the same. The plaintiff landlord therefore agreed to grant, time and undertook that he would not execute the decree till 19th of January, 1976. The High Court, therefore, in view of the arrangement entered into between the parties dismissed the appeal as having not pressed but, however directed that the landlord -respondent before me would not execute the decree for a period of about 10 months i.e. upto 19th of January, 1976. He, therefore, held that in that view of the matter it could not be said that decree was passed solely on the ground referred to in Clause (d) of Section 13A of the Act and consequently dismissed the appeal.