IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL SECOND APPEAL No. 352 of 2005 LRS OF HIMMATMAL V/S HAZARIMAL &ORS Mr. RR NAGORI, for the appellant / petitioner Date of Order : 18.9.2007 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the appellant, and perused the impugned judgments and decrees, so also the record, as was requisitioned. The learned courts below have decreed the suit for eviction, on the ground of reasonable and bonafide necessity of the plaintiff, and by deciding the question of comparative hardship and partial eviction against the appellant, while deciding issues no. 3, 4 and 5. The facts of the case are, that on 17.3.1994 the three plaintiffs filed the suit for eviction, against the defendant, who died during pendency of the litigation, and the appellants are his legal representatives, who shall hereafter be referred to as the defendants, alleging interalia that the plaintiffs own the shop in question, as described in para-3 of the plaint. It is then alleged that the ground floor and the first floor was let out to the defendant for carrying on cloth business on 1.7.90, while the upper storey and terrace etc. continued with the plaintiff, is occupied by them, and is under their lock and key. The way of the upper storey is through the shop in question. A rent note was duly executed. It is then alleged that the defendant has not paid the rent since 30.9.1991, and has thus committed default in payment of rent. It was also contended that the suit shop is required for plaintiff Tolchand (plaintiff no.3), to carry on business of clothes. It was alleged that Tolchand is aged 58 years, and has sufficient experience, and wants to establish his business in the suit premises, for which he would invest a capital of around rupees two lacks, and has sufficient experience. It is also alleged that looking to the population and surrounding villages there are good prospects of the business, and that the plaintiff has no other shop in the town, nor he can go for another one, the defendant is 75 years old, physically weak, and does not need the shop, rather he has a business of finance in Draksharam in the state of Andhra Pradesh. The defendant contested the suit, denying the terms of the rent note, and pleading, that the shop was taken on rent of Rs. 301/- only, and it was also pleaded 2 that the rent was being paid @ Rs. 301/- per month. Then, it was increased to Rs. 501/-, and the plaintiff wants to enhance the rent, and therefore, money order sent was not received. Denying bonafide necessity, it was pleaded, that the plaintiff Tolchand has cloth shop in Bombay, and does not need the shop, while the business being carried on in suit shop by the defendant is the only source of livelihood of defendant. It was pleaded that Tolchand lives in Bombay, and that the defendant is physically fit to carry on business, and is carrying on the business. Then allegation of default was denied. It is pleaded in para-7(ii) of the written statement, that the plaintiff does not need the shop and only want to have the shop vacated, and then to sell it away. Then, in para-8 of the written statement it was pleaded that the defendant is tenant in the suit shop since Samvat 2040 i.e. for the last 12-13 years. Then, in para-3 of the additional pleas it was pleaded that the defendant is carrying on business in the suit shop for the last 12-13 years. In evidence Tolchand appeared as P.W.1, and deposed, that he himself needs the shop for the purpose of carrying on business of cloth, and that he has experience of some 5 to 6 years, he would invest 2-2.5 lacks as capital. He has also deposed that presently he has cloth business in Bombay for the last 7-8 years, and then has deposed that he does not keep good health in Bombay, and therefore, he wants to live in Takhatgarh, and has catalogued certain diseases also. In the cross-examination 3 he has deposed that the other co-sharers of the shop are carrying on business in Bombay, and at the moment he has no business in Takhatgarh, and all his five sons are carrying on business in Bombay. Then, he has deposed that he is suffering from blood pressure for the last 8-9 years, and has deposed that he has no separate shop in Bombay, but sits on the shop Madanlal & Co., and lives with Rakesh. Significantly, not a word was suggested to discredit his version about ailment. Likewise nothing was suggested to him about any oblique motive for eviction, as pleaded, being the plaintiff intending to get the shop vacated, and then sale it out. The learned trial court deciding issue no. 3, regarding the reasonable and bonafide necessity, held, that the plaintiff has deposed his reasonable and bonafide necessity for the suit shop. Then, the learned lower Appellate Court has also affirmed this finding. Assailing the impugned judgments and decrees it was contended, that in the plaint there is no averment, to the effect, that the shop is required by Tolchand, “as he does not keep good health at Bombay”, and since this was not the pleading taken in the plaint, no evidence could be led on this aspect, as it is established principle, that no evidence can be led to establish the facts which are not pleaded, and even if led, could not be considered by the 4 learned courts below. Another submission made is, that three documents Ex. 2, 3, and 4 have not been proved in accordance with the provisions of Section 67 of the Evidence Act, i.e. as to in whose handwriting they are, and are signed by whom, and so on and so forth. It was submitted that the plaintiff has only deposed that doctor's slips and certificates have been produced which are Ex. 2, 3, and 4, which deposition, by itself, cannot prove them. It was then contended that since according to the plaint, the premises were let out on 1.7.1990, while the suit has been filed on 15.3.1994, which is clearly barred by the provisions of Section 14(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, according to which, no suit for eviction from commercial premises can be filed on the ground of reasonable and bonafide necessity, within a period of five years, from the date of commencement of tenancy. I have considered the submissions. It would suffice to say, that the plaintiff has pleaded, that he requires the shop for carrying on his business of cloth, in Takhatgarh. This is what he has deposed. Then, simply because he has additionally deposed, by way of a fact, on account of which he decided to shift to Takhatgarh, to carry on business, it cannot be said, that simply because that fact is not pleaded in the plaint, this cannot be looked into. The fact does remain, that the plaintiff has 5 contended that the suit shop is required by him, and that is what has been maintained in evidence. The defendant has come with a clear case, that the suit is obliquely motivated; as the plaintiff wants to get the shop vacated, and sell it away; while as noticed above, nothing has been suggested to the plaintiff P.W.1 Tolchand, in this regard in the cross examination. In that view of the matter, it cannot be said, that the ailment, or the plaintiff's not keeping good health in Bombay, could not be taken into account, while deciding issue no. 3, for want of pleading in this regard in the plaint. So far as Ex. 2, 3 and 4 are concerned, in that regard it would suffice to say, that nothing was suggested in the cross-examination to P.W. 1, on the side of the defendant to cast any doubt about these documents. This is one aspect of the matter. I for myself have again gone through the entire evidence on record, and even after re-appreciation, I am also of the view, that the finding about reasonable and bonafide necessity does not require any interference. Findings on the question of comparative hardship and partial eviction are not at all chanllenged before me. Coming to the objection taken on the anvil of Section 14(3), it would suffice to say, that no pleading in 6 this regard has been taken in the written statement, and obviously because according to the defendant, as pleaded in the written statement, he is continuing as tenant in the premises for the last 12-13 years. Then the learned lower Appellate Court has negatived this contention in para-31 of the judgment, by observing, that the defendant himself, while in the witness box as D.W.1, has clearly deposed, that he has taken the premises on rent from the plaintiff 15 years ago, and that tenancy is continuing till the date, and that no new tenancy has come into existence. It may be noticed, that so far the rent note Ex. 1 is concerned, it does not show that thereby a new tenancy was commenced, rather considering the statement of the defendant himself, it is proper to conclude, that a new rent note was executed with respect to existing tenancy itself, and thus bar of Section 14(3) is not attracted. In my view, this finding of the learned lower Appellate Court does not require any interference. This Court in Sardar Singh Vs. Prakash Singh, reported in 1987 RLW-701, in identical circumstances, in a case wherein second appeal was admitted only on the question of bar of Section 14(3), found, that the defendant was continuing as tenant for the last 15 years, and vide compromise Ex. A/2, previous monthly rent was enhanced. In that case reliance was placed on the judgment of Hon'ble the Supreme Court, in Gappulal Vs. Thakurji Sriji 7 Dwarkadasji, reported in AIR 1968 SC-1291, wherein it was held that a mere increase or reduction of rent does not necessary import the surrender of the existing lease and the grant of new tenancy. Reliance was also placed therein on another judgment of Hon'ble the Supreme Court, in Pandit Kishanlal Vs. Ganpatram Khosla, reported in AIR 1961 SC- 1554, wherein in para-6 it was held, that unless possession is delivered to the landlord before the expiry of the period of requisite notice, the tenant continues to hold the premises during the period as tenant. Then, it was considered, by this court, that it is not stated in the compromise Ex.A-2 that the actual and physical possession of the shop was delivered to the plaintiff by the landlord, in pursuance of the surrender of the old tenancy, and was again taken back, in pursuance of new tenancy, and therefore, it was held, that the provisions of Section 14 (3) are not attracted. Then, in Khatoon Begum Vs. Bhagwan Das, reported in 2004(1) DNJ (Raj.)-280, the objection under Section 14 (3) was not taken before the learned court below, and this Court had held, that the appellant had waived this right of raising this objection. In the present case, without sticking to the aspect of waiver also, as found above, since admittedly i.e. even according to the defendant, he is continuing as 8 tenant since Samvat 2040, and only rent was increased, bar of Section 14(3) cannot be attracted. The appeal thus does not involve any substantial question of law, and I do not find any sufficient ground to interfere with the impugned judgments and decrees. The appeal is, therefore, dismissed summarily. At this stage learned counsel for the appellant prayed for reasonable time being granted to vacate the suit premises. At the request of the learned counsel for the appellant, the appellant is given two years' time from today, to vacate the suit premises on the condition that the defendant gives an undertaking before the learned trial court within one month from today that on or before the expiry of the above period, he will peacefully hand over the vacant possession of the suit premises to the plaintiff and that during this period, he will not, in any manner, transfer the possession of the suit premises to anybody. Likewise, the entire decreetal amount, so also all arrears of rent, if any, shall be deposited by the appellant in the trial court within one month from today, and shall further continue to deposit amount equal to the monthly rent by way of damages for use and occupation by 15th of each succeeding month, till the actual delivery of possession. In case the appellant fails to comply with any of the above conditions, the respondent will become automatically 9 entitled to execute the decree forthwith. ( N P GUPTA ),J. /Sushil/ 10