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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Arun Bhansali, J.
Chetan Kumar @ Chetan Prakash - Appellant
Versus
Akhilesh Chandra Chhabra (a C Chhabra) - Respondent
Civil First Appeal No. 450 of 2020
Decided on : 10-03-2021
Limitation - Eviction Suit - Transfer of Property Act, 1882 - Section 106 - Article 67 of the Limitation Act - [EVICITON] - [Transfer of Property Act, 1882, Section 106; Limitation Act, Article 67] - The court discussed the issue of limitation in an eviction suit filed by the plaintiff. The suit property was let out for a period of 5 years, and the tenancy was determined by a notice under Section 106 of the Transfer of Property Act. The court held that the suit was within the limitation period of 12 years from the date of determination of tenancy, as prescribed under Article 67 of the Limitation Act. The court rejected the defendant's contention that the suit was barred by limitation and dismissed the appeal.
Fact of the Case:
The plaintiff filed a suit for eviction and arrears of rent against the defendant, claiming that the shop was let out for a period of 5 years and the tenancy was determined by issuing notices under Section 106 of the Transfer of Property Act. The defendant contested the admissibility of the rent-note, denied the plaintiff's claim for his son's requirement of the shop, and raised the issue of limitation, among other defenses.
Finding of the Court:
The trial court decreed the suit for eviction and arrears of rent, holding that the defendant was in arrears of rent and that the bonafide necessity was in favor of the plaintiff. The trial court also held that the suit was not barred by limitation and decreed the suit for eviction and arrears of rent. The appellate court upheld the trial court's decision, dismissing the appeal filed by the defendants.
Issues: The main issue was whether the suit for eviction filed by the plaintiff was within the limitation period as prescribed by Article 67 of the Limitation Act. The defendant raised defenses related to the admissibility of the rent-note, the plaintiff's claim for his son's requirement of the shop, and the issue of limitation under Article 67 of the Limitation Act.
Ratio Decidendi: The court held that the suit for eviction was within the limitation period of 12 years from the date of determination of tenancy, as prescribed under Article 67 of the Limitation Act. The court rejected the defendant's contention that the suit was barred by limitation, as the tenancy was determined by a notice under Section 106 of the Transfer of Property Act.
Final Decision: The court dismissed the appeal filed by the defendants, upholding the trial court's decision to decree the suit for eviction and arrears of rent in favor of the plaintiff.
JUDGMENT
Arun Bhansali, J. - This appeal is directed against judgment & decree dated 14.07.2020 passed by the Additional District Judge No.2, Chittorgarh, whereby the suit filed by the plaintiff, for eviction and arrears of rent has been decreed.
2. The suit was filed on 10.07.2012 by the plaintiff, inter alia, with the averments that the suit shop situated at Jhalar Bawari, NTC Market, Tehsil Rawatbhata, District Chittorgarh was let out to the defendant No.1 on 26.09.1991 for rent @ Rs.725/- per month for a period of 5 years on the terms agreed between the parties. The agreement was signed by plaintiff, defendant No.1 and defendant No.3 give surety that in case defendant No.1 fails to comply with the terms of the agreement, he would get the shop vacated. It was claimed that the shop was required by the plaintiff's son Harsh Chhabra for his business. The defendant No.1 default in payment of rent and despite several reminders, the rent has not been paid and, therefore, in a response dated 29.09.2000, which was given by counsel of the defendants, it was accepted that rent has not been paid since February, 1998 when demand was made, the defendant No.1 behaving as if the said shop was owned by him and, therefore, he has lost his status of a tenant. It was claimed that rent for 170 months amount of Rs.2,34,200/- was due.
3. Allegations were made that on 24.04.1997, defendant-Chetan Prakash and his wife claimed themselves to be the owner of the shop in question and produced a forged document with the Rajasthan State Electricity Board, regarding which, on 18.12.2000, the defendant-Chetan Prakash was convicted by the competent criminal court for offence under Sections 467 and 471 IPC.
4. Notice dated 29.08.2000 was given , another notice dated 27.06.2005 was given and one more notice dated 22.09.2009 was given and the final notice dated 02.04.2012 was given terminating the tenancy and for vacating the premises. It was claimed in the plaint that, though not required, the tenancy has been terminated by issuing notices under Section 106 of the Transfer of Property Act, 1882 ('the TP Act'). Ultimately, it was prayed that the defendant be evicted from the shop in question and the decree be granted for arrears and for mesne profit @ Rs.3,000/- per month. Defendant No.3 filed written statement claiming misjoinder of parties.
5. Defendant No. 1 and 2 filed the written statement contesting the admissibility of the rent-note as the same was deficiently stamped and was unregistered. The requirement claimed by the plaintiff for his son was denied. It was indicated that the rent was sent through money-order, which was refused by the plaintiff. The defendant has never refused to pay the rent. The plaintiff himself has stopped taking the rent. The calculation of rent was also denied.
6. Further submissions were made that the suit was barred by limitation as the period of 5 years indicated in the agreement expired on 27.09.1996 and after passage of 12 years, the suit could not be filed, the same was barred under Article 65 and 67 of the Limitation Act, 1963 ('the Limitation Act') and that notice dated 09.04.2012 under Section 106 of the TP Act was illegal and void.
7. Replication was filed disputing the averments made in the written statement.
8. Based on the pleadings of the parties, the trial court framed ten issues. On behalf of the plaintiff, three witnesses were examined and 33 documents were exhibited and on behalf of the defendants, two witnesses were examined and one document was produced.
9. After hearing the parties, the trial court came to the conclusion that the defendant No.3 gave surety of deposit of rent upto September, 2001 and after adjusting the amount, the plaintiff was entitled to recover the rent for a period of three years from before the filing of the suit, the defendant was in arrears of rent. The bonafide necessity was found in favour of the plaintiff, however, it was indicated that comparative hardship has not been proved. The issue
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