VASUDEV MANGHANI & SONS Vs. SMT. SANTOSH ARORA

JUDGEMENT

(1.) Suit for eviction was filed by the landlord against the defendant-appellant on the ground of default and non-user. Subsequently, with the change of ownership of the premises in dispute, the purchaser was substituted as plaintiffs in the suit who are present plaintiff-respondents. The suit was allowed on the ground of default by the trial court vide judgment and decree dated 12.1.2007. The above judgment and decree passed by the trial court has further been affirmed by the lower appellate court vide judgment and decree dated 27.8.2008. Hence, the present appeal by the defendant-appellant.

(2.) Mr. Mehta, learned Senior Advocate appearing on behalf of the appellant, submitted that admittedly an advance security deposit of Rs. 1 Lac had been received by the original landlord at the time of executing the rent deed. Since advance paid by the defendant-appellant against security for rent was already deposited with the landlord, the arrears of rent could have been adjusted by the landlord and question of default would never arise in such case. While relying on the judgment of the Supreme Court in the case of Modern Hotel,Gudur vs. K. Radhakrishnaiah & Ors. 1989 AIR(SC) 1510, Shri Mehta submitted that the defendant-appellant had already made a prayer before the trial court at the time of determination of provisional rent that the advance I paid to the landlord could be adjusted against the arrears of rent. However, question of adjustment of amount was not decided by the trial court and provisional rent was determined accordingly. Even otherwise, after determination of provisional rent, the same was deposited within the stipulated extended time as fixed by the trial court. Under the circumstances, the decree of eviction could not have been granted on the ground of default. Mr. Mehta further submitted that original landlord having withdrawn or accepted the provisional rent so determined, the subsequent landlord was estopped from raising the plea of default.

(3.) Mr. Kuhad, learned counsel appearing on behalf of plaintiff-respondents on the other hand while supporting the judgments of both the courts below, submitted that in view of clear provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the rule of peri delicto would clearly apply in the present case. He has relied on the judgment of the Supreme Court in the case of Budhwanti & Ors. vs. Gulab Chand Prasad, 1987 2 SCC 153.