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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Sudesh Bansal, J.
Mateen Aadil – Appellant
Versus
Anees Mian – Respondent
S.B. Civil Second Appeal No. 437/2005
Decided On : 16-05-2022
Section 100 CPC - Rent and Eviction - Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Section 13(1), Section 13(3), Section 13(5 & 6) - The court considered whether the defendant-tenant is entitled to get benefit of first default and whether the two courts below have committed illegality and jurisdictional error in extending the benefit of first default to defendant-tenant. The judgment discusses the provisions of the Act of 1950, including the provisional determination of rent, the consequences of default in rent payment, and the benefit of first default accorded to the tenant.
Fact of the Case:
The appellant-plaintiff filed a suit for rent and eviction, alleging that the defendant-tenant committed default in payment of rent. The trial court found the defendant-tenant to have committed the first default in payment of rent but declined the decree for eviction by extending the benefit of first default to the tenant. The issue in the second appeal was whether the defendant-tenant was entitled to the benefit of first default and if the lower courts had erred in extending this benefit.
Finding of the Court:
The court found that the defendant-tenant was entitled to the benefit of first default and that the lower courts did not commit any illegality or jurisdictional error in extending this benefit. The court also noted that the substantial questions of law framed by the appellant-plaintiff were answered negatively, and no other substantial question of law was involved, leading to the dismissal of the second appeal.
Issues: The issues revolved around whether the defendant-tenant was entitled to the benefit of first default, whether the lower courts had erred in extending this benefit, and whether any substantial questions of law were involved in the appeal.
Ratio Decidendi: The court's decision was based on the interpretation of the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, particularly Section 13(1), Section 13(3), and Section 13(5 & 6), regarding the consequences of default in rent payment and the benefit of first default accorded to the tenant. The court also emphasized that the scope of second appeal is confined to examining substantial questions of law and that fact findings recorded by the lower courts should be honored unless there is perversity, illegality, or jurisdictional error.
Final Decision: The second appeal was dismissed, and no order as to costs was made. The record of both courts below was to be sent back.
JUDGMENT
1. This second appeal has been filed by appellant-plaintiff- landlord under Section 100 CPC assailing the judgment and decree dated 13.07.2005 passed in Civil Appeal No.70/2003 by the Court of District Judge, Tonk affirming the judgment and decree dated 03.09.2003 passed in Civil Suit No.221/1992 by the Court of Additional Civil Judge (Upper Division), Tonk whereby and whereunder civil suit for rent and eviction, filed by appellant- plaintiff, has been decided in the manner that defendant-tenant has been declared to commit first default in payment of rent, however, by extending benefit of first default, the decree for eviciton has been declined.
2. Having heard learned counsel for both parties and on perusal of impugned judgments and record, it is not in dispute that defendant-tenant was found defaulter in payment of rent for the period 01.01.1992 to 31.10.1992 and counsel for defendant- tenant has not disputed findings of default for the alleged period. Hence the court is not required to consider the issue of default in this second appeal.
3. The issue which falls for consideration by this Court in the present second appeal is limited as to whether the defendant- tenant is entitled to get benefit of first default or not and as to whether the two courts below have committed illegality and jurisdictional error in extending the benefit of first default to defendant-tenant?
4. This Court, vide order dated 28.07.2006, framed the following substantial questions of law to be considered in the present appeal:-
"1. Whether the impugned judgments are vitiated and are liable to be reversed on account of non- reading and for non-considering the material admissions of the defendant regarding defaults contained in his statements of payments dated 23.05.2003 filed in the trial court?
2. Whether the defendant has not paid the current rent from January 2005 to May 2005 and therefore he is liable to be evicted on the ground of default?
3. Whether the learned courts committed legal blunder in not passing the decree of undisputed rent amount in the facts and circumstances of the case?"
5. In order to consider the aforementioned substantial questions of law and issues fall for consideration, it is relevant to have a look on facts of the case.
The rented premise is a shop measuring 4 X 6 ft. situated in district, Tonk which is in tenancy of defendant-tenant w.e.f. 01.12.1989 at the rate of Rs.125/- per month. Appellant-plaintiff institued a suit for rent and eviction on 13.11.1992 alleging inter alia that tenant has committed default for more than six months in payment of rent for the period 01.01.1992 to 31.10.1992. The eviction suit was filed invoking provisions of Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act of 1950").
The defendant-tenant in his written statement denied the default in payment of rent.
6. During course of eviciton suit based on the ground of default, as per scheme of the Act of 1950, provisional determination of rent was made by trial court vide order dated 21.02.1994 under the provisions of Section 13(3) of the Act of 1950 and the due rent from 01.01.1992 to January, 1994 was determined.
As per provisional determination, the defendant-tenant was required to pay the determined rent as well as the rent of subsequent months regularly.
It may be noticeed that in case, defendant-tenant commits any default in deposition of determined rent or for the subsequent months, his defence against the default is liable to be struck out and tenant cannot claim benefit of first default. Such propositon of law and procedure is prescribed under Section 13(5 & 6) of the Act of 1950.
7. After provisional determination, vide order dated 21.02.1994, the appellant-plaintiff moved an application dated 06.07.1996 and 23.02.2001 alleging inter alia that defendant has committed default in depositing the provisional rent.
8. Both applications were deferred to be considered by the trial cou
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