2000 Supreme(Raj) 1429
RAJASTHAN HIGH COURT
N.P.Gupta, J.
Babulal - Appellant
Versus
Rajendra Singh And Ors. - Respondent
S.B. Civil Second Appeal No. 163 of 2000.
Decided On : 25-09-2000
Advocates:
For the Appellant:Dinesh Maheshwari, Advocate.
For the Respondent No. 1:G.R. Singhvi, Advocate.
The principle of acquiescence and waiver is applicable in non-suiting the plaintiff seeking eviction on the ground of subletting without permission.
Headnote:
Acquiescence - Eviction Suit - Section 13(1)(e) - Summary of Acts and Sections: Section 13(1)(e) - The court discussed the issue of subletting and the principle of acquiescence and waiver in the context of eviction suits. It referred to Section 13(1)(e) of the Rent Control Law and analyzed relevant case law to establish the applicability of the principle of acquiescence and waiver in non-suiting the plaintiff seeking eviction on the ground of subletting without permission.
Fact of the Case:
The plaintiff filed a suit for eviction against the defendant tenant on the grounds of default in payment of rent and subletting of the premises. The defendant contended that the rent was paid by the same person for both the suit premises and another property, and that the plaintiff had received rent from the defendant knowing him to be the tenant. The trial court dismissed the suit, but the appellate court reversed the decision and decreed the suit for eviction.
Finding of the Court:
The court found that the principle of acquiescence and waiver is applicable in non-suiting the plaintiff seeking eviction on the ground of subletting without permission. It held that the plaintiff had acquiesced in the alleged subletting by continuing to receive rent from the sub-tenant with the knowledge of the sub-tenancy for a reasonable period of time.
Issues: The substantial questions of law involved in the appeal were: (1) Whether the defendant was rightly held to be a sub-tenant, (2) Whether the defendant's stand of living in the suit premises as a member of the Hindu Undivided Family was correctly rejected, (3) Whether the plaintiff could be non-suited if shown to have acquiesced in alleged subletting, and (4) Whether the appellate court was in error in declining to go into the question of acquiescence and waiver based on misreading of the written statement.
Ratio Decidendi: The court held that the principle of acquiescence and waiver is applicable in non-suiting the plaintiff seeking eviction on the ground of subletting without permission. It referred to relevant case law and statutory provisions to establish the applicability of this principle.
Final Decision: The appeal was allowed, and the impugned judgment and decree of the lower courts were set aside. The case was remanded back to the trial court for deciding afresh in view of the observations made while deciding the questions related to acquiescence and waiver.
JUDGMENT
1. - This appeal has been filed by the defendant tenant against the judgment and decree of learned lower Appellate Court whereby, by reversing the judgment and decree of the learned trial court the plaintiffs suit for eviction from the suit premises has been decreed. Obviously the learned trial court had dismissed the suit.
2. The suit was filed way back on 10.12.1987 against three defendants being Bhanwarlal, Balchand and Babulal. However pending litigation Bhanwarlal expired and his legal representatives have been taken on record. In the original plaint the case of the plaintiff was that the suit premises is on rent with the defendants No. 1 and 2. It was also alleged that the ground of eviction as originally pleaded was that the defendant No. 1 has constructed his house In the name of his wife while the defendant No.2 has constructed his house at New Pali Road and thus neither of the defendants No. 1 and 2 nor any of their family members live in the suit premises. In the suit eviction was claimed on the grounds detailed in para 8 of the plaint being (i) default In payment of rent and (ii) that the premises have been sublet by the defendants No. 1 and 2 to the defendant No.2 (appellant or in the alternative the defendants No. 1 and 2 have parted with possession in favour of the defendant No.3 without consent of the plaintiff.
3. The defendant No.3 appellant, filed the written statement on 19.12.1989 contending inter alia that the premises were taken on rent from the grand father of the plaintiff, that the three defendants being brothers so also their father Shri Nenu Ram had been living as Hindu Undivided Family in the suit premises and as such had been carrying on the timber business in adjacent premises of the landlord. It was also contended that the mother of the defendants, is still continuing to live in the suit premises along with the appellant. It was also contended that right since beginning the rent of the premises was paid either by the defendants father Nenu Ram or by the defendant No.3, and receipts were issued in different names as tenant, but the tenant in both the premises were the same and the rent was paid by the same person, and it is in this process that receipt of rent for the suit premises was started to be issued In the name of "Bhanwarlal Balchand". It was also contended that the rent for the period 1.8.1978 to 31.7.1985 has been received by the plaintiff from the defendant No.3 on 9.7.1986. While the rent for the period 1.8.1985 to 31.7.1986 was also received by the plaintiff from the defendant No.3 and that the defendants No. 1 and 2 had started living in their houses since long long ago (18- 20 years) as the suit premises was small enough to house all of them, and despite knowledge of this fact the plaintiff had received the rent from defendant No.3 knowing him to be the tenant, has brought a false suit at this belated hour. Practically identical plea was taken in reply to para 8(b) of the plaint also.
4. It is thereafter that on 21.7.1990 plaintiff filed an application for amendment of the plaint seeking to add two more sub-paras In para 8; first being acquisition of suitable alternative accommodation by the tenant (defendants No. 1 and 2) and second being that on account of defendants No. 1 and 2 having shifted to those accommodation, the suit premises is not being used by the tenant, for a period of six months since before filing of the suit for the purposes for which it was let. This amendment was allowed, amended plaint was submitted on 9.12.1990.
5. To this amended plaint an amended written statement was also filed by the appellant, contending that the defendants No. 1 and 2 are living in their houses since as early as 1969-1971, while parents of the defendants along with defendant No.3 are living in the suit premises and after death of father, the mother and the defendant No.3 along with his family are living. It was also contended that since the premises are being used by the tenant, it
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