Chandrasen v. Murarilal

Modi, J.:— This is defendant's second appeal against the appellate judgment and decree of the Civil Judge, Sirohi, dated September 30, 1974, confirming the decree and judgment for ejectment passed by the Munsiff Magistrate, Abu Road.

2. The dispute relates to a residential house situated at Abu Road which is fully described in Paragraph No. 2 of the plaint. This house admittedly belong to Ramanlal Manaklal, who let-out the upper storey of this house to appellant No. 1 Chandrasen on a monthly rent of Rs. 32/-. Besides the monthly rent, the tenant also agreed to pay Rs. 0.75 per month as latrine-tax. Later on, Ramanlal Manaklal sold this house to respondent Murarilal on March 27, 1971. The appellant No. 1 Chandrasen neither paid nor tendered rent after August 8, 1970 to Ramanlal Manaklal and after the sale on March 27, 1971 to the respondent Murarilal. The respondent served notice to quit terminating the tenancy with effect from August 9, 1971. Ultimately when no rent was paid by the appellant No. 1 the respondent filed a suit, out of which this appeal arises, for eviction and arrears of rent against the appellant No. 1. The respondent also impleaded appellant No. 2 Vasudev, father of appellant No. 1, as it was alleged that appellant No. 1 had sub-let the premises to his father Vasudev.

3. The respondent claimed the eviction of the tenant, appellant No. 1, on three grounds. Firstly, that the tenant committed default in payment of rent for more than six months; secondly, that the tenant sublet the suit premises to his father Vasudev; and thirdly, that he required the premises for his own residence reasonably and bona fide.

4. The defendant-appellants resisted the suit. They denied that they had committed any default in payment of the rent. They also denied that the suit house was sub-let to Vasudev and that it was required reasonably and bona fide for the residence of the respondent landlord. Both the Court below have decreed the respondent's suit holding the defendant-appellants to be defaulters in the payment of rent and also that the respondent required the suit premises for his own residence reasonably and bona fide.

5. Both the Courts below, however, found that the ground of sub-letting pleaded by the respondent was not proved. Dealing with the ground of default in payment of rent, the lower court has held that the period of default commencing from August 9, 1970 to March 26, 1971 (i.e the period prior to the sale of the suit house to the respondent) does not stand waived simply on the ground of the suit property having been sold to the respondent on March 27, 1971.

6. Both the courts below have held that the defendants did not pay rent to their previous landlord Ramanlal Manaklal for the period commencing from August 9, 1970 to March 26, 1971, that is, for a period of 7 months and 18 days. Both the courts below have further held that the appellants committed default in the payment of rent from March 27, 1971 to August 8, 1971, that is, for a period of 4 months 13 days. These findings of fact cannot be allowed to be challenged in second appeal.

7. It is contended on behalf of the appellants that they cannot be held to be defaulters within the meaning of section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as the “the Act”) inasmuch as they had not committed six months' default with respect to the rent payable to the respondent landlord.

8. Section 13(1)(a) of the Act provides that no court shall pass any decree or make any order in favour of the landlord, whether in execution of a decree or otherwise, evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied that the tenant has neither paid nor tendered the amount of rent due from him for six months. In view of this provision, the defendants are not liable to be evicted unless the default in payment of rent to previous landlord Ramanlal Manaklal is taken into consideration because it is only then that it can be said that the appellant committed default in payment of rent due from them for six months. The question therefore arises whether the respondent who is a transferee, can take advantage of the default committed by the tenant in payment of rent due from him to the previous landlord for more than six months? A similar question arose before Hon'ble Lodha, J. in the case of Naraindass v. Rajendra Singh (1) Lodha, J., after reviewing several authorities and considering the definition of the word “landlord” as given in section 3(iii) of the Act, observed as under,—

“10. A plain reading of sec. 13(1)(a) goes to show that no tenant is entitled to the protection unless he pays the rent due from him at the time prescribed in the Act. It does not provide that the landlord for the time being alone is entitled to recover possession if the rent is not paid. The definition of ‘landlord’ as extracted above makes the position abundantly clear. It lays down that ‘landlord’ means any person who for the time being is receiving or is entitled to receive the rent of any premises Reading both the provisions together it is manifest that in order to be able to grant protection to the tenant against ejectment, the Court must be satisfied that the tenant had paid the amount of rent which was due to him, as contemplated by sec. 13(1)(a). It is not a question of transfer of benefit of default by the previous landlord to his successor but of the tenant claiming protection under the Act. In this view of the matter if the court is satisfied that the tenant has neither paid nor tendered the amount of rent due from him to the previous landlord who was entitled to receive the rent, he will be deemed to have incurred the liability to be ejected and would not be entitled to protection under the Act, irrespective of the fact that the premises along with the arrears of rent have been transferred by the previous landlord. Of course it is not the defendant's case that the previous landlord had waived such default.”

9. The learned counsel for the appellants has urged that the case of Naraindass (1) is not applicable to the facts of the present case because in that case, the plaintiff not only purchased the property, but also purchased the rights to recover the arrears of rent due from the tenant upto the date of the purchase. In my opinion, this distinction is of no assistance to the appellants. Lodha, J. has clearly laid down that in case the tenant has neither paid nor tendered the amount of rent due from him to the previous landlord, who was entitled to receive the same, he will be deemed to have incurred the liability to be ejected and would not be entitled to protection under the Act irrespective of the fact that the premises along with the arrears of rent have been transferred by the previous landlord. In the present case, it is not a question of transfer of benefit of default by the previous landlord to his transferee. The main question that arises is whether the tenant can claim protection under the provisions of the Act. The question, therefore, whether the arrears of rent have been transferred or not, is of no consequence unless of course the defendants' case was that the previous landlord had waived such default. In absence of such a defence, I am in respectful agreement with the view taken by my learned brother Lodha, J. in Naraindass's case (1) and hold that the transferee landlord can take advantage of the default committed by the tenant in payment of rent due from him to the previous landlord for bringing his case within the ambit of section 13(1)(a) of the Act.

10. On the question of reasonable and bona fide necessity of the landlord, suffice it to say that no decree can be passed after coming in to force of the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 unless the question of comparative hardship is gone into as required by amended section 14(2) of the Act. Since that question has not been gone into by the Courts below, the tenant cannot be evicted on the ground of reasonable and bonafide necessity of the landlord.

11. In the result, the appeal fails and is dismissed with costs on the ground of default in payment of rent under section 13(1)(a) of the Act.

12. The learned counsel for the appellants prays for leave to appeal to the Division Bench. The prayer is rejected.