SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 1/12 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.309/2008 LRs. of Phool Chand versus Gopal Krishan and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.R.S.Choudhary, for the appellants. Mr.J.L. Purohit, for the respondents. DATE OF JUDGMENT : 3rd December, 2008. JUDGMENT 1. Heard the learned counsels for the parties. 2. This second appeal of the defendant – tenant is directed against the judgment of the first appellate court dtd.21.10.2008 whereby the first appellate court allowed the appeal of the plaintiff – landlord which was filed by the plaintiff against the judgment of the learned trial Court dtd.23.1.2004 refusing the decree of eviction of the suit SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 2/12 premises on the ground of first default under Section 13(1)(a) of the Act. 3. The learned first appellate Court however found that merely on account of dismissal of the suit for want of prosecution, it could not be said that the defendant had not availed the benefit of first default during the course of first suit under Section 13(6) of the Act and therefore, since the defendant again did not pay any rent for the period from 19.4.1981 to 19.3.1997, the defendant had committed second default and therefore, the eviction decree was bound to be passed. The first appellate Court also found that even though the issue was not framed in this regard, but since in the written statement, the defendant had denied title of the plaintiff and which denial has not been waived by the plaintiff – respondent, therefore that also was a ground of eviction. Besides this, the first appellate Court also decided the issue relating to subletting in favour of the plaintiff on the basis of evidence that the suit premises has been sublet by the defendant in favour of one Om Prakash as the defendant had shifted his business to Hissar (Haryana), whereas the suit premises, a residential house is situated in Bhadra (Rajasthan). The first appellate Court found that the defendant had shifted his business and even his ration card was SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 3/12 made at his Hissar address and his name was included in the voters' list at Hissar and these suggestions were not denied by the defendants' witnesses in the cross-examination and therefore on the ground of subletting, denial of title, as well as default, the first appellate Court, reversing the findings of the learned trial Court passed eviction decree. Being aggrieved by the same, the defendant has approached this Court by way of present second appeal. 4. Mr. R.S. Chaudhary, learned counsel appearing for the appellant – defendant relying upon the decision of the Hon'ble Supreme Court in the case of Ram Niwas V/s Malik Mahboob Ali reported in AIR 1991 SC 1088 submitted that since the earlier suit of the plaintiff was dismissed for non-prosecution, therefore, the default in the present suit was only first default and therefore, the first appellate Court was not justified in passing eviction decree treating the same as second default. He relied upon para 10 of the judgment, which is reproduced hereunder: “10. Mr. Lodha has referred to us various decisions of the High Court of Rajasthan where earlier suits had been relied upon for the purpose of considering the SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 4/12 applicability of the proviso to sub-s. (6) of S.13 of the Act. But those are cases where the earlier suits had been disposed of not for non-prosecution, but on the ground of payment of arrears. Subsequent defaults naturally attracted the proviso to sub-s.(6) of S.13 of the Act. Mr. Lodha's argument on the point, therefore, is of no help on the facts of this case.” 5. Mr. Chaudhary also relied upon the decision of this Court in the case of Deela Ram V/s Jugmandir Dass reported in 1992(1) RLR 72. Para 5 of the said judgment is reproduced hereunder for ready reference: “5. It is not disputed that in the earlier suit filed by the plaintiff on the ground of non-payment of rent the defendant had appeared in Court on the first date of hearing and the suit had been dismissed by the learned trial Court on the ground that the plaintiff having received the amount of rent from the defendant, did not want to proceed with the case. The said case, therefore, did not come in the category No.2 mentioned above but SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 5/12 was dismissed for non-prosecution by the plaintiff who though present did not want to proceed with it. In my view, therefore, it is not possible to hold that the suit was dismissed by giving the defendant – appellant the benefit provided under sub-Section (6) of Section 13 of the Act. There is thus no material to hold that the defendant – appellant had been given the abovesaid benefit in the earlier suit.” 6. On the side opposite, Mr. J.L. Purohit, learned counsel appearing for the plaintiff – respondent submitted that in view of the admitted non-payment of rent by the defendant for long period and even claiming title through adverse possession of the suit premises, mere dismissal of the earlier suit for want of prosecution after payment of rent by the defendant after determination under section 13 (3) of the Act, it could not be said that there was no first default involved in the earlier suit and therefore, the second default committed by the defendant involved in the present suit could very much furnish a ground of eviction as the defendant was not entitled to protection of first default under Section 13(6) of the Act. He also submitted that the findings on subletting and denial of title have been given by the first appellate court on the basis of evidence and such SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 6/12 findings cannot be said to be perverse and therefore, there is no substantial question of law arising in the present second appeal and the same deserves to be dismissed. He relied upon the decision of this Court in the case of Himmat Mal V/s Summati Roopchand reported in 1993 (2) RLW 498. Para 6 and 7 of the said judgment are reproduced hereunder for ready reference: “(6) It is well established now, that even where a decree for eviction is based on terms of compromise, the decree must be founded on one or more of the grounds envisaged under sec.13 of the Act of 1950 or, other relevant law. It is also well established that such satisfaction of the Court about the existence of grounds for eviction can be inferred from the admission of the parties, contained in a deed of compromise. In the present case, though the earlier decree was not a decree for eviction the agreement between the parties clearly states that suit is based on ground of default and the defendant is entitled to benefits under Sect.13(6), that is to say, both the parties agreed that in view of provisions of Sec. 13(6) of the Act of 1950, the defendant is SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 7/12 entitled to protection from a decree for eviction under the Act, and therefore, the plaintiff got the suit dismissed in terms of settlement on the ground alone. It is not disputed that in the earlier suit, the court had determined the amount of rent under Sec.13(3) and therefore, the defendant had deposited the said amount in the court and the compromise was arrived only thereafter. (7) In the aforesaid facts and circumstances, it cannot be said that the defendant had not taken the benefit of Sec. 13(6) of the Act of 1950 in that earlier suit. If that be so, both the Courts below were right in holding that the defendant is not entitled to benefit under Sec. 13(6) a second time. 7. Regarding findings of the first appellate Court on denial of title, Mr. J.L. Purohit, relied upon the Full Bench decision of this Court in the case of Smt. Pushpa Sharma V/s Gopal Lal Rawat reported in 1986 (5) RLR 623 and submitted irrespective of whether the issue is framed about the denial of title, if from the pleadings it appears to the Court to be so, then on the basis of evidence available SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 8/12 before the learned trial Court, the first appellate Court could arrive at findings of denial of title and the question of prejudice caused to the defendant may be seen at the time of decree for possession to be granted on the proof of tittle by the plaintiff. He further submitted that since the issue relating to the title is not relevant for for deciding the rent eviction matter, therefore, in view of admitted claim of the defendant in the written statement about the ownership of the said suit premises and non-payment of rent for long period, the findings of the first appellate Court cannot be said to be perverse. The full Bench of this Court in the aforesaid case held in para 14 and 16 as under: “14. There can be no manner of dispute that in a suit for eviction on the basis of tenancy, all that need be gone into is whether there is a contract of tenancy between the parties and if the plaintiff fails to prove such contract of tenancy, then the court is entitled to dismiss such suit. But in a case when the question of title has also been gone into and the parties were at issue on the point of title and the parties had led evidence, it would not be just and proper to direct the plaintiff to file another suit for possession on the basis of title. Lower courts always SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 9/12 discourage and avoid the multiplicity of suits. The only relevant circumstance in such a case would be whether any prejudice has been occasioned to the other side. 15.... 16. Our answer therefore to the questions referred is : (1) In a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set fourth under Section 13 of the Rajasthan Premises (Control of Rent and Eviction Act, 1950, a decree for possession can be granted in favour of the plaintiff on the basis of his title. (2) When any issue is framed on the basis of allegation of title of the plaintiff and the defendant asserts his own title and denies the plaintiff's title and both the parties lead evidence without raising any objection, question of prejudice caused to the defendant may be seen if decree for possession is to be granted on proof of title of the plaintiff.” SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 10/12 8. Having heard the learned counsels for the parties and having gone through the impugned judgments of the Court below and case laws cited at the bar, this Court is satisfied that no substantial question of law arises in the present case for determination by this Court under Section 100 C.P.C. It is well settled that even if eviction decree can be upheld on one single ground, it can be so upheld. The first appellate Court has found that defendant had sublet the suit premises to one Sh. Om Prakash as he had shifted from Bhadra to Hissar and had not only started residing there, but had his business in Hissar. His ration card and voters' list were also made at Hissar. As far as second default is concerned, the Courts below has rightly held that mere dismissal of earlier suit for want of prosecution cannot entitle the defendant to again claim benefit of first default. In the present suit, admittedly the defendant not only claimed title over the said suit property but did not pay any rent for a long period from 19.4.1981 to 31.3.1997. This in the opinion of this Court amounted to second default for which no benefit under Section 13(6) of the Act could be given to the defendants. The judgments relied upon by the learned counsel for the defendant are distinguishable inasmuch as in those cases, the earlier suit was dismissed for want of prosecution after payment of rent and thereafter the landlord did not prosecute SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 11/12 the suit and therefore, there was no finding as to whether the first default had occurred or not, but here in the present case, dismissal of earlier suit is on account of payment of provisional rent after the same was determined by the trial Court. The appellate Court had noted that the defendant was not paying any rent since 19.3.1977 and therefore, the earlier suit No.55/1979 was filed by the plaintiff and in view of payment of rent upon determination by the Court, the plaintiff did not press the said suit. Thereafter again the defendant did not pay any rent for a period more than 6 months after 19.4.1981 and therefore, the present suit was filed. Thus, obviously there was second default on the part of the defendants. The said findings of the first appellate Court appears to be justified and case-laws relied upon by the appellants – defendants are of no help to the appellants. On the other hand, Rajasthan High Court's decision in Himmat Mal's case clearly covers this case. As far as findings of subletting and denial of title are concerned, from the facts, it appears that defendant - tenant had refused to pay any rent for the suit premises for long number of years and had also denied title of the plaintiffs – respondents. Subletting of the suit premises to one Om Prakash was also proved by the plaintiff – respondent. Thus, taking overall view, this Court is satisfied that the findings of the first appellate Court below in favour SBCSECOND APPEAL NO.309/2008– LRs. OF PHOOLD CHAND V/S GOPAL KRISHAN AND ORS. . : JUDGMENT DATED 3.12.2008 12/12 of the plaintiff – respondent are based on relevant material and there is neither any misreading of evidence nor findings can be said to be perverse in any manner. 9. In the opinion of this Court, no substantial question of law arises in the present second appeal and the same being devoid of merit is accordingly dismissed. The appellant – defendant shall pay all the arrears of rent to the plaintiff – respondent and hand-over vacant and peaceful possession of the suit premises to the plaintiff within a period of two months from today, failing which the plaintiff respondent shall be entitled to invoke contempt jurisdiction of this Court besides executing the decree in normal course. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.2 Ss/-