RAJENDRA KUMAR Vs. KANHAIYA LAL

JUDGEMENT

(1.) PHOOL Chand deceased was admittedly tenant of the respondents in a shop premises facing north and forming part of a building known as Pratap Bhawan standing on Plot No. S 4 B on Kabir Marg, Bani Park, Jaipur. He had taken this shop premises on rent on March 14, 1963 from the respondents on a monthly rent of Rs. 30/-. Electric consumption charges calculated on the basis of readings in electric meter and water charges on proportionate basis were payable by him besides the monthly rent. According to the respondents-landlords, the tenant, PHOOL Chand, had deposited with them a sum of Rs. 60/- to be retained as advance till the tenant continued to occupy the shop. Initially, the tenant paid the rent for the period March 14, 1963 to March 31, 1963 on April 4, 1963 and thereafter he started paying it monthly according to Gragarian calender month. Although, the duration of tenancy Was fixed, as ten months, but it was also agreed that whenever the landlords wanted to get the premises vacated, they could determine the tenancy by serving notice of one month's duration. Irregular payments of rent were made upto the month of April 1966. Thereafter an amount of Rs. 59.60 was tendered by money order containing a remittance note that after appropriating the advance deposit of Rs. 60/- and deducting the money order commission of Rs. 0.90 paise, rent was being remitted in respect of the period from May 1, 1966 to August 31, 1966. This remittance was received by the plaintiffs on September 20, 1966 and the appropriation of the amount remitted was recorded towards the payment of rent for the months of May a.06.1966. Certain more remittances of rent were made as detailed in para 5 of the plaint which were appropriated towards payment of rent upto the end of the month of March 1967. Since the tenant had deducted money-order commissions from all these remittances made by money orders, they could not be termed as valid and proper tender of the monthly rent. Nothing was tendered or paid on account of rent in respect of the periods April 1967 and onwards. Upon these facts, the plaintiffs have pleaded that the non-tender and non-payment of rent by the deceased tenant, PHOOL Chand, for a period exceeding six months, as a ground for eviction of the appellants. Besides, Kailash Chandra, plaintiff No. 3, had passed the Diploma in Mechanical Engineering from Alwar Polytechnic in June 1967 and he was sitting idle and without employment. He reasonably and bona fide required the suit shop in order to start his workshop. It was alleged that since PHOOL Chand tenant used to carry on his business alone in the demised shop and since he has expired, his heirs are not legally entitled to retain the shop. Comparative hardship, in these circumstances, would not be greater to the appellants in case a decree for ejectment is passed against them and would be greater to the landlords-respondents in case such a decree is refused to them. This is the second ground upon which ejectment of the appellants from the suit premises is claimed. Although, the tenancy of PHOOL Chand deceased had determined by effluxion of time, yet, by way of abundant caution, the plaintiffs'-landlords', by serving upon PHOOL Chand, a notice dated November 16, 1967 on 18.11.1967, effectively determined his tenancy on and by December 18, 1967. It may be mentioned here that during the pendency of the suit instituted by the plaintiffs-respondents against PHOOL Chand-tenant, the latter expired on June 15, 1973 and since thereafter the appellants were in possession of the suit shop and the right to sue survived against them, they were impleaded as defendants to the suit. The plaintiffs thus, claimed a decree for Rs. 292.95 as arrears of rent and money-order commission wrongly deducted by PHOOL Chand from the rents remitted by money orders and Rs. 1/- as cost of notice and for ejectment of the appellants from the shop in dispute.

(2.) PHOOL Chand tenant contested the suit by filing a written statement on April 16, 1968. After his death when his widow Kapoori Devi, son Rajendra Kumar and daughters Santosh Devi and Premwati were substituted as his legal representatives, they also contested the suit and filed another written statement. According to them, the amount of Rs. 60/-, which was deposited by PHOOL Chand with the respondents, was advance rent for two months and not a deposit under stipulation for adjustment on vacation of the demised premises. When the respondents deliberately did not accept rent and did not give receipt by appropriating the amount of Rs. 60/- towards rent, PHOOL Chand had to remit the amount of Rs. 59.60 by money order after appropriating the above amount of rent towards rent and after deducting the money order commission for the period upto August 31, 1966. According to the appellants. PHOOL Chand, was always ready and willing to pay the monthly rent but since the respondents avoided to accept the same, the former had to make remittances of rent by money order after deducting the money order commission. Since the respondents refused to accept the rent of the month of June 1967 remitted by money order, PHOOL Chand had to stop further remittances. The requirement of the suit shop reasonably and bona fide for the purposes of Kailash Chandra was denied and it was pleaded that the real intention of the landlords was to enhance the rent. According to the appellants, Kailash Chandra was employed as permanent government servant in the Overhaul Centre of Post and Telegraph Department at Jaipur and was not sitting idle. The latter had no intention to start a workshop in the demised premises. The respondents' plea that the appellants have no right to continue to occupy the suit shop after the death of PHOOL Chand, is disputed and it is asserted that the heirs of a deceased statutory tenant have also been included in the definition of 'tenant' as given in Sec. 3 (vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, hereinafter, "the Act"). It was further stated that the plaintiffs had five more shops belonging to them and, out of them, they had lately let out four shops and one shop was still vacant with them. Had a shop been really required for Kailash Chandra, he would have occupied the same and started his workshop. As the agreed rent of the premises was excessive, PHOOL Chand had instituted a suit for determination of the standard rent of the demised premises under Sec. 6 of the Act, on February 23, 1968 and had also presented therein an application for fixation of provisional rent till the determination of the standard rent.

(3.) IT may be mentioned that in their grounds of appeal filed on November 14, 1983, the appellants attacked the decree of the first appellate Court mainly on the ground that the said court has not correctly interpreted the provisions regarding 'statutory tenant' as given in Section 3 (vii) of the Act and has erred in not holding the appellants to be statutory tenants despite the fact that Rajendra Kumar was sitting on the shop with his deceased father in the morning and evening and Vimal Kumar, grand-son of Phool Chand, deceased was also carrying on business along with Phool Chand in the shop upto his death and substantial questions of law were also framed in that light in para 7 (f) (i) to(iii) of the grounds of appeal. Mr. B.P. Agrawal, learned counsel for the appellants contended that the decision of their Lordships of the Supreme Court in Smt. Gian Devi Anand V. Jeevan Kumar and others (1) had not been delivered when this second appeal was filed and that in Smt. Giandevi Anand's case, five Judges Bench of the Supreme Court has now authoritatively laid down that the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and that the tenancy rights both in respect of residential premises and commercial premises are heritable. Accorrdingly, the learned counsel contended that on the death of the statutory tenant Phool Chand, the appellants stepped into the position of Phool Chand and all the rights and obligations of the deceased tenant Phool Chand including the protection afforded to the said deceased tenant under the Act devolved on the appellants as heir of deceased statutory tenant Phool Chand. IT was urged that the view expressed to the contrary by the Supreme Court in its decision in Ganpat Ladha Vs. Shashikant Vishnu Shinde (2) did not lay down the correct law and was expressly overruled in Smt. Gian Devi Anand's case (Supra). The learned counsel also relied and referred to the decision in Damadi Lal vs. Parashram (3) and in V. Dhanapal Chettiar vs. Vesodai Ammal (4) in support of his contention. In reply, learned counsel for the respondents-landlord urged that Phool Chand was a statutory tenant and he had died on 15.6.73 i.e. before the definition of "tenant" was enlarged by the Amending Act of 1975 in this State and that statutory tenancy was not heritable. IT was contended that it has been found as a fact that the appellants are not tenants within the extended definition given in the expression in Sec. 3 (vii) (b) even by the Amending Act of 1975.