IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Ranchod B. Das vs. LRs of Kanhaiya Lal. S.B. Civil Regular Second Appeal No.145/1997 under Section 100, C.P.C. against the judgment and decree dated 5.4.1997 passed by the Addl. District Judge No.3, Jodhpur in C.A.D. No.60/1994. Date of Judgment: January 4th ,2005 PRESENT HON'BLE MR.PRAKASH TATIA,J. Mr. S.D. Purohit) Mr. G.R.Singhvi ), for the appellant. Mr. J.R. Patel, for the respondent. REPORTABLE BY THE COURT: 1. The trial court decreed the suit of the appellant- plaintiff for eviction of his tenant-respondent, from the suit premises, vide judgment and decree dated 16.8.1994. The appellate court reversed the judgment and the decree of the trial court vide judgment and decree dated 5.4.1997. Hence, this second appeal by the appellant-plaintiff- landlord against the judgment and decree of the first appellate court dated 5.4 1997. 2. Brief facts of the case are that the plaintiff- appellant, who was in service in the year 1974, let out one of his shop, out of his three shops, situated in his house to the defendant-deceased Kanhaiya Lal on 2.10.1974 on rent of Rs.110/- per month excluding the charges for the electricity, water and house-tax. The plaintiff filed the suit for eviction against the defendant-tenant on 28.10.1977. The plaintiff in his plaint stated that the suit shop was let out to the defendant for commercial purposes but instead of doing the business in his own name, the defendant obtained licence from competent authority for running the shop in the name of his wife and started business in the shop in the name of his wife without the permission of the plaintiff. Not only this but in violation to the terms and conditions of the tenancy agreement, the defendant-tenant started residing in the shop from 1.6.1976 with his wife and children. The defendant also damaged the property causing loss to the plaintiff. The plaintiff further submitted that plaintiff's son Chandra Shekhar is doing his business in the name of M/s Kamdhenu Aahar Industries in Shop No.1 of the plaintiff and he wanted to have show-room for his business, therefore, the plaintiff is in need of the shop no.3, which was let out to the defendant. The plaintiff also sought decree for eviction on the ground of default in payment of rent by the defendant as he did not pay the rent of more than six months. 3. The written statement was filed by the defendant- deceased Kanhaiya Lal on 21.3.1978. In the written statement, the defendant submitted that the premises was taken by him on rent for his residence as well as for running business in the name of his wife and the suit premises was not taken on rent only for commercial purposes. The defendant, after denying the allegation of default, submitted that the plaintiff wanted to get more rent from the defendant and submitted that plaintiff's son Chandra Shekhar is not doing the business in the name of M/s Kamdhenu Aahar Industry and there is no office of his business in shop no.1 and in fact, shop no.1 is in possession of P.J. Viren & Sons, therefore, there is no need of the shop in dispute for expansion of the business of plaintiff's son. The defendant further submitted that since five years have not passed to the tenancy of the defendant, therefore, the plaintiff's suit before expiry of five years from the date of the start of tenancy of the defendant on ground of plaintiff’s personal need is not maintainable. 4. The plaintiff amended his suit with leave of the court on 21.8.1984 and took a plea that the plaintiff retired from his service on 30.11.1983 and the plaintiff wants to do the business with his son in the shop in dispute and the plaintiff has sufficient means for doing the business and, therefore, the plaintiff is seeking eviction of the defendant, now for his own need. Plaintiff further pleaded that he has no other suitable premises. 5. The defendant submitted reply to the newly added grounds on 25.11.1984. In reply to newly added para (7A) of the plaint, the defendant admitted that the plaintiff retired on 30.11.1983 but denied that the plaintiff is unemployed and submitted that the plaintiff, after retirement, joined the Central Arid Zone Research Institution, Jodhpur and from there he is getting good salary. It is also submitted that the plaintiff is of the advance age and he has no physical ability to do the business. In this additional written statement dated 25.11.1984, the defendant submitted that shop no.1 in which it was alleged that the plaintiff's son Chandra Shekhar is doing business, is in the tenancy of Radha Swami Typing Institute. 6. The trial court framed issues on 15.1.1985 which are relating to the default in payment of the rent for the premises, what is the effect of defendant's doing business in the name of his wife instead of his own name, whether the plaintiff retired from service in the year 1983 and wants to do his business with his son and, therefore, there is personal bona fide need of the plaintiff, whether the defendant has already taken another shop in front of shop in dispute and because of this reason, defendant will suffer hardship in case decree for eviction is passed against the defendant. 7. The plaintiff further amended his plaint with the leave of the court by order dated 24.2.1987 and added a new ground for seeking eviction. New ground is that the defendant removed the partition wall and materially altered the premises. The amended plaint was filed by the plaintiff on 5.3.1987. The defendant submitted reply to the grounds by filing supplementary written statement on 21.8.1987. 8. The defendant submitted an application under Order 6 Rule 17 C.P.C. and sought amendment in the written statement to take additional grounds to contest the suit of the plaintiff which was allowed by the trial court on 17.11.1991 and amended written statement was filed by the defendant on 2.1.1992. The plaintiff filed the rejoinder to the amended written statement of the defendant on 3.2.1992. 9. Yet, there is one more application seeking amendment of the written statement by the defendant which was also allowed by the trial court vide order dated 1.3.1992 and the defendant submitted amended written statement on 14.4.1992. 10. This is how, a plaint which was filed in the year 1977 attained the final shape in the year 1987 and the written statement took the final shape in the year 1992 when last amended written statement was filed by the tenant. It consumed almost near about 15 years for completion of the pleadings before the trial court. 11. The defendant also submitted an application under Order 14 Rule 5 CPC on 19.5.1992 and the defendant proposed as many as five new issues but did not propose issue of non-maintainability of the plaintiff’s suit on the ground that the suit of the plaintiff is barred under sub-section (3) of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950'). However, the application of the defendant for framing five additional issues was dismissed by the trial court by order dated 6.8.1992. It will be worthwhile to mention here that initially issues were framed on 15.1.1985, after the amendment of the original plaint by the plaintiff and after inclusion of the ground of personal bona fide necessity of the plaintiff himself in place of need of plaintiff’s son. At this stage it will be relevant to mention, on 15.1.1985 and subsequently when additional issues were framed on 27.10.1987 and thereafter in the application of the defendant dated 19.5.1992 for framing additional issues, the defendant did not choose to request for framing of any issue about maintainability of the plaintiff’s suit in view of bar u/s 14 (3) of the Act of 1950. 12. In the trial court, at the time of final arguments in the year 1994, the defendant raised objection founded upon sub-section (3) of Section 14 of the Act of 1950 and submitted that the plaintiff let out the premises for commercial purpose on 2.1.1974 and filed the suit for eviction on the ground of personal bona fide necessity on 7.10.1977,i.e., within five years from the date of letting out the premises, therefore, the suit of the plaintiff is not maintainable, rather the plaintiff's institution of the suit itself is against the mandate of the said provisions of law and consequentially the plaintiff's suit is liable to be dismissed only on this ground alone as the suit is barred by law. 13. The trial court decided this objection first, before deciding other issues, though no issue was framed on this objection of the defendant. The trial court held that the defendant himself in his written statement admitted that the suit premises was taken on rent for both purposes, i.e., for commercial as well as for residential use and the plaintiff also stated in his statement that though the premises was let out for commercial purpose but the defendant started using the premises for residential purpose therefore, suit premises was not let out only for commercial purpose. The trial court held that the court is required to see the equities and observed that the objection of non-maintainability of the suit has been raised by the defendant after 17 years of the trial of the suit. The defendant did not demand for framing issue on this plea despite the fact that the defendant himself submitted an application under Order 14 Rule 5 C.P.C. and proposed several other issues but had not included any issue on the defendant's this plea. On these grounds, the trial court rejected the plea of the defendant about non- maintainability of the suit. 14. The trial court decreed the suit of the plaintiff on the ground of personal bona fide necessity of the plaintiff but decided issue of material alteration against the plaintiff and did not pass any decree on this count. 15. The defendant preferred appeal and the appellate court allowed the appeal of the defendant vide judgment and decree dated 5.4.1997. The appellate court held that since the plaintiff filed the suit within five years from the date of tenancy on the ground of personal bona fide necessity of the plaintiff, which is impermissible as per sub-section (3) of Section 14 of the Act of 1950, therefore, the suit of the plaintiff is not maintainable. In spite of the fact that the first appellate court held the suit is not maintainable as suit is barred by law, still reversed the finding of the trial court about personal bona fide necessity of the plaintiff for the suit premises on the ground that since the plaintiff filled the suit within the five years of letting out the premises, which was not permissible in view of the bar created by sub-section (3) of Section 14 of the Act of 1950, therefore, the plaintiff's need cannot be accepted as bona fide. And when the need cannot be treated bona fide, there cannot arise any question of comparative hardship in favour of the plaintiff. The first appellate court also held that the plaintiff himself in his cross-examination admitted that at the time of filing of the suit, one shop adjacent to the shop in dispute was not occupied by any tenant and in the opinion of the court, the shop is till lying vacant, therefore, the plaintiff's need cannot be accepted as bona fide. In view of the above reasons, the first appellate court reversed the decree for eviction passed by the trial court and dismissed the plaintiff’s suit. 16. Aggrieved against the above judgment and decree dated 5.4.1997, the appellant preferred this appeal which was admitted as this Court found that following substantial questions of law are involved in this appeal:- “1. WHETHER in case of oral agreement of tenancy between land lord and tenant, the user can be changed without written consent of the landlord? 2. WHETHER the expression 'inconsistent with the purpose for which a tenant was admitted to the tenancy of the premises' can be proved by oral evidence and attending circumstances where the agreement of tenancy is entered orally? 3. WHETHER in view of the finding recorded by first appellate court that the disputed premises was let out to the tenant-respondent for commercial as well as residential purposes both then in such a situation the provisions envisaged under sub-sec.(3) of Sec.14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'Act No.17 of 1950') will not be attracted inasmuch as its applicability can be extended only in respect of those premises which are let out for commercial or business purposes not for business-cum-residential purposes ? 4. WHETHER after excluding the applicability of sub-sec.(3) of Sec.14 of Act No.17 of 1950, in the present facts and circumstances, a plea raised by land lord plaintiff appellant regarding his reasonable and bona fide necessity would revive for consideration along with sub-sec.(1) and (2) of Sec.14 of the aforesaid Act. ? 17. The appeal was heard on merits and it was found that case involves more substantial questions of law, therefore, after hearing both the parties by detailed order dated 18.8.2004, following additional substantial questions of law were framed:- (5) Whether the suit of the plaintiff filed on 28.10.1977 and was amended in the year 1983 is barred by sub-section (3) of Section 14 of the Act of 1950? and (6) In case it is held that the suit of the plaintiff is not barred under sub-section (3) of Section 14 of the Act of 1950, then whether the finding recorded by the trial court on the issue of personal bona fide necessity of the plaintiff is vitiated because of misreading of the evidence and non-consideration of the material evidence and the finding of the first appellate court is based on assumption and has been recorded without reasons, and the plaintiff proved the case for eviction against the tenant on the ground of personal bona fide necessity as required under Section 13 of the Act of 1950. 18. The learned counsel for the appellant vehemently submitted that bar against the institution of the suit by the landlord on the ground of personal bona fide need of the plaintiff created by sub-sec. 3 of Sec. 14 of the Act of 1950 applies to the those premises which are let out only for business purpose. Sub-sec. 3 of Sec. 14 is not applicable to premises for residential or let out for composite use like business and residential. When the defendant himself, in his written statement, clearly admitted that he took the suit premises for the residence of his family and also for the business of his wife than defendant cannot take plea that premises was let out for business purpose. The plea is against defendant’s own admission in the pleading. In the alternative, the premises is in use for composite purpose and therefore, also suit is not barred. The trial court was fully justified in holding that the suit premises was not taken on rent only for commercial purpose. Neither this finding has been reversed by the first appellate court nor there exist any reason for reversal of the finding. It is also submitted that the defendant, though in his written statement pleaded that the suit has been filed within a period of five years from the time of letting out, therefore, the suit is not maintainable but said plea was not only casually taken but in view of the admission of the defendant himself in the written statement itself that he took the premises for his residential and commercial purpose, he did not intend to press this issue which is clear from the facts mentioned in the judgment of the trial court and also apparent from the record. It is also submitted that the first appellate court committed illegality in holding that the question of maintainability of the suit is required to be decided on the basis of the right of the plaintiff as on the date of filing of the suit and passing of about 14 years is irrelevant and the issue has not become redundant. 19. The learned counsel for the appellant submitted that even if it is held that on the date when the suit was filed, it was barred under sub-section (3) of Section 14 of the Act of 1950 even then that bar was not there when the trial court passed the decree against the defendant. Therefore, the appellate court should not have dismissed the plaintiff's suit. The appellant relied upon the judgments of the Hon'ble Apex Court delivered in the cases of (1) Martin and Harris Ltd. v. Addl. Dist. Judge ( AIR 1998 SC 492), B. Banerjee v. Smt. Anita Pan (AIR 1975 SC 1146) and Anandilal Bhanarlal and another vs. Smt. Kasturi Devi, Generiwala and another (AIR 1985 SC 376). The learned counsel for the appellant also relied upon the judgment of this Court delivered in the case of Chandgi Ram vs. Babulal (1997 DNJ(Raj.) 308), in support of his argument that even when the suit is filed within the prohibited period of limitation for filing the suit, in such situation, after the expiry of the period of five years, the landlord can be permitted to amend the plaint so as to incorporate the ground of personal bona fide necessity of the plaintiff and the said amendment will not relate back to the date of the institution of the suit and in such a situation, the original date of institution of the suit is to be ignored as per the decision of the Hon'ble Apex Court given in B. Banerjee(supra). It is also submitted that a decree passed after the expiry of the prohibition period u/s 14(3) of the Act of 1950, cannot be treated as nullity in view of the decision given in the case of Shamsuddin vs. Jhanwarilal (1989(1) RLW 383). 20. Learned counsel for the appellant further submitted that, even if any benefit was available to the defendant- tenant-respondent as per Section 14(3) of the Act of 1950, he has waived his right to take benefit of law. It is also submitted that even a right given or created by the statute can also be waived by the parties for whose benefit the right was created by the statute. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 has not only a beneficial legislation for the tenant only but it is a welfare legislation, for the benefit of the tenant as well as for the landlord also, therefore, the law is required to be construed in a manner so that it may achieve its object of benefit to the tenant as well as the landlord both. The sub-section (3) of Section 14 of the Act of, 1950 merely secures tenant's possession in the premises for five years in cases where the tenant has taken the premises for the commercial purpose. The object behind the provisions is that the deemed weaker section may earn his bread peacefully without fear of eviction from the place from where he is earning for himself as well as for his family members. The law cannot be interpreted in a manner to grant more benefit than it was intended by the legislature. In view of the above, the tenant should not have been permitted to take a plea by the trial court on a point for which no issue was framed by the trial court. The trial court even after permitting the tenant, decided in favour of the landlord-appellant but the first appellate court ignoring the aim and the object of enacting sub-section (3) of Section 14 of the Act of 1950 and ignoring the fact that the Act is beneficial legislation for not only the tenant but also for the landlord, allowed the plea taken by the defendant and secured the possession of the tenant beyond the period of five years for which there was security under the law regarding possession of the tenant. 21. The learned counsel for the appellant assailed the finding of the first appellate court on the issue of personal bona fide necessity of the plaintiff-landlord and the manner in which the first appellate court decided the issue of personal bona fide necessity and comparative hardship and submitted that the first appellate court even did not care to look into the evidence of the witnesses nor looked into the documents and proceeded on the assumption only which is clear from the bare reading of the reasons given by the first appellate court while deciding issue of personal bona fide necessity of the plaintiff. 22. The learned counsel for the respondent-tenant raised serious objection about the pleas raised by the appellant- plaintiff before this Court, in second appeal. According to the learned counsel for the respondent, the plea of waiver and equity are questions of facts. The appellant did not raise these pleas before the trial court or the first appellate court. Even the appellant has not raised these pleas in memo of appeal; therefore, appellant can not be permitted to take these pleas in arguments in second appeal. It is also submitted that the appellant cannot be permitted to take new pleas in second appeal in view of the decision of this Court as well as of the Hon'ble Apex Court in the cases of (1) Abdul Vaheed vs. Amar Chand & ors. (2003 WLC(Raj.) UC 242) (2) C.K. Abdul Rehman vs. B.C. Putta Thayamma (2002 WLC(SC) 42), Kshitish Chandra Purkait v. Santosh Kumar Purkait & ors. (1997)(2) CCC 255(SC). Further it is submitted that there is neither issue nor evidence on question of waiver of defense by the defendant, therefore, no opportunity is available to the defendant- respondent to meet this new plea and, therefore, the plea cannot be allowed at this stage. According to learned counsel for the respondent-defendant, the substantial question of the law is required to be set up by the appellant in the memo of appeal itself as held in the cases of (1) K. Raj & anr. vs. Muthamma (2001(2) CCC 98(SC) and (2) Muthu Gounder vs. Ammayee Ammal ( 2002(3) CCC 101(SC). In view of the judgment of the Hon'ble Apex Court delivered in the case of Kshitish Chandra Purkait(supra), the High Court has no jurisdiction to decide the question without formulating the point as substantial question of law. According to the learned counsel for the respondent, the substantial question no.4 framed by the court is not specifically for the point in dispute. It is also submitted that there is no illegality in the appellant court's holding that the right of the parties must be determined as they were available on the date of the filing of the suit and not on the basis of the right which accrued to them after institution of the suit and the plaintiff cannot be permitted to take advantage of the cause of action which arose subsequent to filing of the suit. 23. It is also submitted that the judgment relied upon by the learned counsel for the appellant Martin and Harris Ltd.’s case (supra) has no application to the facts of this case. The learned counsel for the respondent tried to distinguish between the words “institution” and “entertain” and submitted that the language used in sub-section (3) of Section 14 of the Act of 1950, it is clear that the mandate of the law is against the institution of the suit itself and not merely a restriction for entertaining the suit. It is clearly provided in sub-section (3) of Section 14 that no suit for eviction of tenant shall lie if filed within the period of five years of commencement of tenancy. In the case of Martin and Harris Ltd.(supra), the distinction between “entertain” and “institution” has been made clear. The Hon'ble Apex Court observed that entertain means to adjudicate upon or to proceed to consider on merits and did not mean