Advocates:
['C L SAINI', 'S K PAREEK', 'B K PAREEK', '', 'BHUPERDRA PAREEK']

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No. 410/2000

(*) Babu Lal S/o Shri Ranjit Singh R/o Kesargarh, Near

Rajasthan Patrika, Jawahar Lal Nehru Marg, Jaipur

----Appellant-Defendant

Versus

Thakur Raghunath Singh S/o Shri Kesari Singh R/o Narain Niwas,

Jawahar Lal Nehru Marg, Near Police Memorial, Jaipur

----Respondent-Plaintiff

For Appellant(s)

:

Ms. Pinky Saini for

Mr. C L Saini

For Respondent(s)

:

Mr. Brij Kishore Sharma

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

07/09/2022

1.

The instant second appeal has been preferred by defendant-

tenant under Section 100 of Code of Civil Procedure, assailing the

judgment and decree dated 01.09.2000, passed in Civil First

Appeal No.22/99 by the Court of Additional District Judge No.4,

Jaipur City, Jaipur whereby and whereunder the first appeal was

allowed and decree for eviction along with arrears of rent and

mesne profits has been passed, as the trial court i.e. the

Additional Civil Judge (Junior Division) No.2, Jaipur City, Jaipur,

vide its judgment dated 15.04.1999, dismissed the suit for

eviction bearing No.389/93.

2.

The rented property is a residential premises comprising two

rooms situated at Kesargarh, Jawahar Lal Nehru Marg, Jaipur. As

per plaintiff, the suit premises was let out in the year 1970 @

Rs.25/- per month, whereas as per defendant, the suit premises is

(2 of 9)

[CSA-410/2000]

in tenancy since the time of his forefathers from 1946 @ Rs.10/-

per month, which was enhanced later on to Rs. 25/- per month.

3.

This Court, vide order dated 09.01.2001, framed following

substantial questions of law to be considered in the present

second appeal:-

(i) Whether raising construction of additional premises with

the consent of landlord amounts to nuisance within the

meaning of Section 13(i)(d) of the Rajasthan Premises

(Control of Rent & Eviction) Act, 1950?

(ii) Whether in view of no objection of the landlord against

the construction raised by the appellant/tenant in his land

for more than 44 years amounts to waiver so as not to

cause nuisance within the definition of Section 13(i)(d) of

the said Act?

(iii) Whether the mesne profits for the rented premise

could exceed the monthly rent?

4.

Heard counsel for both parties, perused the impugned

judgments and scanned the record.

5.

Respondent-plaintiff instituted the present civil suit for

eviction way back on 11.03.1993 on the ground of default,

material alteration and nuisance, invoking the provisions of

Section 13 of the Rajasthan Premises (Control of Rent & Eviction)

Act, 1950 (hereinafter referred as ‘the Act of 1950’).

6.

Appellant-defendant submitted written statement and

admitted his tenancy in the suit premises, however, declined the

grounds of eviction and the period of tenancy.

7.

Learned trial court, on 27.08.1996 settled issues as per rival

pleadings of both the parties.

8.

Prior to framing of issues, since the issue of default was

involved in the present eviction suit, therefore, as per provision of

(3 of 9)

[CSA-410/2000]

Section 13(3) of the Act of 1950, the provisional rent was

determined vide order dated 16.11.1994 @ Rs.25/- per month for

the period from 01.03.1990 to 31.10.1994 and defendant-tenant

was directed to pay the determined rent and the rent of future

months regularly in the bank account of plaintiff.

9.

Both the parties adduced their evidence on the respective

issues.

10.

Learned trial court, vide its judgment dated 15.04.1999, held

that defendant-tenant has committed default in payment of rent

but extended the benefit of first default and other grounds of

eviction were not held proved and therefore, the suit for eviction

was dismissed, however, the rent deposited by defendant pursuant

to the order of determining the provisional rent was allowed to be

withdrawn by plaintiff.

11.

Plaintiff preferred first appeal against the dismissal o