CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 1/8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E NT Raj @ Rajkumar vs. Smt. Leela Mathur S.B.CIVIL SECOND APPEAL NO.184/2008 DATE OF JUDGMENT : 19th September, 2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.N.R.Choudhary, for the appellant. Mr.Manish Shishodia, for the respondent. 1. By this appeal, the defendant-tenant has challenged the concurrent judgments and decree of two courts below in an eviction matter. 2. The first appellate court vide judgment dated 3/5/2008 while dismissing the defendant's appeal upheld the eviction decree of the learned trial court dated 5/10/1998 in respect of suit shop in which the original-tenant Prakash Chand father of present defendant Raj Kumar was carrying on the business of cycle shop. Said Prakash Chand died in the year 1993 and, thereafter, since the suit shop CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 2/8 remained closed and no rent was paid to the plaintiff landlord, she filed a suit for eviction on the ground of default and non-user of the suit shop for a period of more than six months. The said suit was decreed by the learned trial court and first appellate court upheld the said decree. 3. Mr.N.R.Choudhary, learned counsel appearing for the appellant-defendant urged that the courts below have wrongly held that he suit shop was closed for a period of six months prior to the filing of suit for eviction. The suit in question namely suit no.129/95 (new no.163/96 & 599/98) was filed in the year 1995 by the plaintiff respondent. Learned counsel relying upon the decision of this Court in case of Gauri Lal vs. Gujar Mal ( 1992 (1) RLR 75) submitted that if the suit is not filed just after the expiry of alleged six months of non-user of the suit shop, the eviction decree cannot be passed on the ground of non-user under Section 13(1)(j) of the Act. He relied upon para nos.14 and 20 of the said judgment. 4. These submissions were opposed by Mr.Manish Shishodia, learned counsel appearing for the respondent-plaintiff who submitted that the provisions of Section 13(1)(j) merely state that if the premises CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 3/8 have not been used without reasonable cause for the purpose for which they were let-out for a continuous period of six months immediately preceding the date of filing suit does not mean that the plaintiff has to file the suit for eviction just after expiry of said period of six months. Such non-user, he submitted that could be for a period longer than six months also and that would also furnish a ground for eviction under Section 13(1)(j) of the Act. He also relied upon the decision of this Court in case of Sant Lal vs. Harbans Singh (1982 RLW 274) and decision in case of Sewa Ram vs. Manoj Kumar (1993 (2) RLW 658). He also relied upon the decision in case of L.Rs of deceased Pratap Rai vs. Narendra Kumar (2005(7) RDD 2715). 5. I have heard learned counsels and perused the record of the case. 6. That as far as findings of two courts below on the default is concerned, this Court need not go into the same as they are findings of fact and do not require any interference by this Court under Section 100 CPC in the present second appeal. 7. That as far as question of interpretation of Section 13(1)(j) is CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 4/8 concerned, this Court finds no force in the submissions of learned counsel for the appellant-defendant. Section 13(1)(j) merely states that non-user of the suit premises for a period of six months immediately preceding the date of suit shall be a ground for eviction. A longer period of non-user also remains equally a good ground for eviction. The contention of learned counsel for the appellant- defendant that if the suit is not filed immediately after expiry of six months, the plaintiff landlord is estopped from raising this as a ground for eviction is misconceived. The words “immediately preceding the date of suit” in Section 13(1)(j) of the Act are merely indicative of the fact that the suit premises should be shown to have not been used for the purpose for which they were let out at least for a period of six months on the date when suit is filed. In other words, if the non-user is for a period lesser than six months like few days or a month or two, that would not be a ground for eviction. Non-user for a period longer than six months is definitely a ground covered within the meaning of Section 13(1)(j) of the Act. 8. Reliance placed by learned counsel for the appellant-defendant in Gauri Lal's case (supra) is misconceived. Learned Judge in para no.15 of the very judgment repelled the contention of learned counsel CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 5/8 for the appellant raised before this Court in following terms: “15.Before Section 13(1)(j) can be used for passing a decree of eviction, the court must feel satisfied that the tenant has not used the premises for a continuous period of six months immediately preceding the date of the suit. The object of this provision is to prevent the tenant from keeping the tenanted premises unused for a long time without any reasonable cause. The Legislature through (sic thought) that if a tenant does not make use of the tenanted premises and, thus, the premises remain unused, the landlord should have a right to seek eviction of the tenant and then use the premises according to his sweet will. However, if the non-user does not relate to a period of continuous six months immediately preceding the date of the suit, the provision of Section 13(1)(j) cannot be pressed into service by the landlord. This stringent requirement shows that the Legislature while giving non-user as one of the grounds for eviction of the tenant emphasized that such non-user must be for at-least continuous six months from the point of time of filing of the suit. The landlord cannot take the ground of non-user in remote past as basis for seeking eviction of the tenant.” CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 6/8 9. To the same effect, another learned Single Judge in L.Rs of deceased Pratap Rai (supra) held as under:- “It is clear from bare reading of sub-clause (j) of Sub-section (1) of Section 13 that a consolidated period of non-user of six months of the premises by tenant gives a cause of filing suit against the tenant by the landlord. Each consolidated period of six months therefore, constitute a separate cause of action as it relates to different period of tenancy. Therefore, after first six months of non-user of the premises by the tenant if a suit for eviction is not filed within three days by the landlord then assuming for the sake of arguments that that cause of action cannot be made actionable by the landlord on the ground that his remedy has become barred by time, but that bar applies to the period for which cause occurred to the landlord and not for the period for which no cause accrued. Therefore, in this case, also the non-user of the premises was six months immediately preceding the date of filing of the suit is a cause on the basis of which the suit is within limitation and this way if we go backward of the cause of actions, on completion of six months non-user of the premises by the tenant, the suit falls within limitation for recovery of possession. Apart from above reason, even if non-user of the premises by the tenant for six months is a ground for CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 7/8 eviction then that gives rise to different cause of actions for different periods of non-users. The non- user of the premises by the tenant for six months and plaintiff's non-filing the suit for recovery of possession from the tenant cannot give right to tenant to take a defence that since for one cause of action, the plaintiff did not file the suit for possession, the plaintiff lost his right for subsequent cause of action nor the tenant can claim that a right accrued in his favour and he can remain tenant in the premises without using the premises for the purpose for it was let out to him. Therefore, the Court does not find that the Court below even if has not decided the issue of limitation raised by the defendant, still there is no force in the argument of learned counsel for the appellant that the suit filed by the plaintiff was barred by time.” 10. Thus, this Court has consistently held that non-user of the suit premises for a period of six months or more furnishes a cause of action for eviction under Section 13(1)(j) of the Act, therefore, this court finds nothing wrong in the judgments of two courts below granting decree on the ground of non-user under Section 13(1)(j) of the Act. CSA .184/2008 - Raj @ Rajkumar vs.Smt. Leela Mathur Judgment dt:19/9/08 8/8 11. Consequently, this appeal is found to be devoid of merit and the same is accordingly dismissed. No costs. (DR.VINEET KOTHARI), J. item no.28 baweja/-