1989 Supreme(Raj) 790

RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.C.Jain, I.S.Israni, JJ.
Lallu Narayan - Appellant
Versus
Ratan Chand Lunia - Respondent
D.B. Civil Second Appeal No. 142 of 1982.
Decided On : 21-08-1989

1. The ground set out in Section 13 (1) (f) of the Act does not stand on a different footing from the other grounds. However, looking to the nature of the ground. under Section 13 (1) (f), if the same is not pleaded and specific issue is not framed, still, if the parties went to trial in the suit and had led evidence and no real prejudice is shown to have been caused, then, the court is competent and is entitled to consider and decide as to whether the ground mentioned in Section 13 (1)(f) is proved or not and decree for eviction can be passed if the same is found in favour of the plaintiff-landlord. 2. Sub-sec. (1) of Section 19A as inserted by Act No. 12 of 1965, simply provides that the tenant is required to pay rent within time fixed by the contract and where there is no contract, by the fifteenth day of the month next following the month for which it is payable. It may be stated that where there is a contract fixing the time for payment of rent, the tenant is under an obligation to abide by contract in payment of rent but where there is no such contract fixing the time for payment of rent, sub-sec. (1) of Section 19A provides that the payment of rent is required to be made by the fifteenth day of the month next following the month for which it is payable. 3. The decision of this Court in Premlal's case (supra) does not hold good after the decision of the Supreme Court in V. Dhanpal's case (supra) to the extent indicated above.

Headnote:

EVICTION OF TENANT - GROUNDS - DENIAL OF TITLE - PLEADING, ISSUE AND EVIDENCE - NECESSITY - SECTION 13(1)(F) OF THE RAJASTHAN PREMISES (CONTROL OF RENT AND EVICTION) ACT, 1950 - DEFAULT IN PAYMENT OF RENT - MEANING - SECTION 19A(1) OF THE ACT - DECISION IN PREMLAL V. JADAV CHAND - WHETHER GOOD LAW AFTER THE DECISION OF THE SUPREME COURT IN V. DHANPAL CHETTIAR V. YESHODAI AMMAL - SECTION 106 OF THE TRANSFER OF PROPERTY ACT.

Fact of the Case:

The suit for eviction was filed on the grounds of default in payment of rent, sub-letting and reasonable bona fide and personal necessity. The Additional Civil Judge (Small Causes) Jaipur City, Jaipur decreed the suit on 27-11-79 on the ground of default in payment of rent for the period from June 1967 to December 1967 and also on the ground of denial of title by the defendant. The two grounds of sub-letting and personal necessity were found against the plaintiff. On appeal, the Additional District Judge No. 7, Jaipur City, Jaipur dismissed the suit on 25-2-1942. The findings on sub-letting and reasonable bona fide and personal necessity and comparative hardship were affirmed. As regards, the default in payment of rent, the Additional District Judge held that there was proper and valid tender of rent for a period upto May 1967 to Smt. Bhanwari Bai and in respect of the period subsequent to May 1967, it could not be said that there was default in payment of rent for the period of six months because the rent for the month of November, 1967 could be paid upto 15th December 1967, and the suit had been filed on 9-12-67 i.e. prior to 15th December, 1967 and, therefore, it could not be said that on the date of filing of the suit, the respondent had committed default in payment of rent for a period of six months. On the ground of denial of title, it was held that a decree could not be passed on that ground in favour of the plaintiff as no such plea was raised in the plaint.

Finding of the Court:

1. The landlord can seek eviction of the tenant on the ground mentioned in Section 13 (1) (f) of the Act, in the absence of specific pleading and issue, if the parties went to trial on that ground when no real prejudice is shown to have been caused to the tenant. Although, the ground set out in Section 13 (I) (f) does not stand on a different footing from the other grounds, still, the ground mentioned in Section 13 (I) (f) of the Act can be examined on merits in the aforesaid situation. 2. If the tenant has committed default in payment of rent on the first day after the expiry of the month for which rent is payable under the contract the payment of rent upto the fifteenth day of the month next following the month for which it is payable under sub-sec. (1) of Section 19A, would not save him for the purposes of Clause (a) of sub-sec. (1) of section 13 of the Act. 3. The decision of this Court in Premlal's case (supra) does not hold good after the decision of the Supreme Court in V. Dhanpal's case (supra) to the extent indicated above.

Issues: 1. WHETHER the landlord can seek eviction of the tenant on the ground mentioned in Section 13 (1) (f) of the Act in the absence of specific pleading, issue and evidence in that regard and for that purpose the ground set out in Section 13 (1) (f) of the Act stands on a different footing from the other grounds of eviction contained in Section 13 (1) of the Act? 2. CAN a tenant be said to have committed default in payment of rent on the first day after the expiry of the month even though in view of sub-sec. (1) of Section 19A of the Act, the rent can be paid upto 15th day of the month next following the month for which it is payable? 3. DOES the decision of this Court in Premlal v. Jadav Chand hold good after the decision of the Supreme Court in V. Dhanpal Chettiar v. Yeshodai Animal ?

Ratio Decidendi: 1. The ground set out in Section 13 (1) (f) of the Act does not stand on a different footing from the other grounds. However, looking to the nature of the ground. under Section 13 (1) (f), if the same is not pleaded and specific issue is not framed, still, if the parties went to trial in the suit and had led evidence and no real prejudice is shown to have been caused, then, the court is competent and is entitled to consider and decide as to whether the ground mentioned in Section 13 (1)(f) is proved or not and decree for eviction can be passed if the same is found in favour of the plaintiff-landlord. 2. Sub-sec. (1) of Section 19A as inserted by Act No. 12 of 1965, simply provides that the tenant is required to pay rent within time fixed by the contract and where there is no contract, by the fifteenth day of the month next following the month for which it is payable. It may be stated that where there is a contract fixing the time for payment of rent, the tenant is under an obligation to abide by contract in payment of rent but where there is no such contract fixing the time for payment of rent, sub-sec. (1) of Section 19A provides that the payment of rent is required to be made by the fifteenth day of the month next following the month for which it is payable. 3. The decision of this Court in Premlal's case (supra) does not hold good after the decision of the Supreme Court in V. Dhanpal's case (supra) to the extent indicated above.

Final Decision: Reference Answered.