S.B.CIVIL SECOND APPEAL NO.218/2001- Rameshwar Dayal vs. Mohan Lal Order dt: 19/2/09 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Rameshwar Dayal vs. Mohan Lal S.B.CIVIL SECOND APPEAL NO.218/2001 DATE OF JUDGMENT : 19/2/2009 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI REPORTABLE Mr.Manish Shishodia, for the appellant. Mr.T.R.Singh, for the respondent. 1. This second appeal is directed against the judgment and decree of first appellate court dated 4/5/2001, whereby, the learned first appellate court upheld the eviction decree and rejected the defendant- tenant's appeal but however, directed the landlord, who sought eviction of the suit premises on the ground stated in Section 13(1) (k) of the Act as the suit premises i.e.shop in question had become unfit for human habitation, to give back the possession of the shop in question after necessary repairs to the tenant on a fresh rent note to be executed by him. A period of two months was granted to the landlord S.B.CIVIL SECOND APPEAL NO.218/2001- Rameshwar Dayal vs. Mohan Lal Order dt: 19/2/09 2/7 by the first appellate court for this purpose. 2. Being aggrieved of only the said part of the judgment & decree of first appellate court, the plaintiff landlord has approached this court by way of present second appeal which was admitted by this Court on 23/3/2004 with the following substantial questions of law: “(1) Whether the learned lower appellate court is acting within the scope of exercise of judicial powers in relying on the alleged newspaper report in respect of an alleged Supreme Court judgment, without even caring to know under what State Law such an order has, if at all, been made by the Hon'ble Supreme Court? (2) Whether the Learned lower appellate court is right in acting within its jurisdiction in passing an order directing the landlord to reconstruct the shop within two months and redeliver possession to tenant respondent on redetermined rent on the basis of standard rent?” 3. Mr. Manish Shishodia, Learned counsel for the appellant plaintiff urged that the learned first appellate court has misplaced reliance on the Supreme Court decision dated 16/11/2000 as published in the local newspaper `Rajasthan Patrika' without verifying the said judgment from the law reports itself. The said judgment was later on reported in 2000 WLC SC 125 – Kondeti S.B.CIVIL SECOND APPEAL NO.218/2001- Rameshwar Dayal vs. Mohan Lal Order dt: 19/2/09 3/7 Suryanarayana & Ors vs. Pinninthi Seshagiri Rao. A perusal of said judgment reveals that said judgment in fact deals with specific provisions of Section 12(1) (b) & (2) of the A.P.Building (Lease, Rent and Eviction) Control Act, 1960, which is reproduced hereunder for ready reference:- “Sub clause (b) of sub-section (1) of sub-section (2) of Section 12 reads as under: (b) that the building consisted of not more than two floors and is reasonably and bonafide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building and that the possession of the building to be delivered to the landlord before a specified date. (2) No order for recovery of possession under this Section shall be passed unless the landlord gives an undertaking that the building on completion of the repairs, alterations or additions or the new building on its completion will be offered to the tenant, who delivered possession in pursuance of an order under sub-section (1), for his occupation before the expiry of such period as may be specified by the Controller in this behalf.” S.B.CIVIL SECOND APPEAL NO.218/2001- Rameshwar Dayal vs. Mohan Lal Order dt: 19/2/09 4/7 4. Learned counsel for the appellant landlord Mr.Shishodia submitted that there is no such provision in the Rajasthan Rent Control Act, 1950 and the only provision allowing repossession of suit premises by the tenant is contained under Section 15 of the Rajasthan Rent Control Act, 1950, which read as under: “Section 15.- Restoration of possession to evicted tenant- Where a decree for eviction of any premises has been passed by the court against a tenant on any of the grounds specified in clause (h) of sub-section (1 of Section 13 and the landlord fails to utilize the premises the use or purpose for which such eviction shall have been decreed within two months of obtaining possession thereof, or, in the case of premises let out for residential purpose, at any time within one year and in the case of premises let out for commercial or business purposes, at any time within five years of obtaining possession, lets the whole or any part thereof to any person other than the evicted tenant, the Court which passed the decree may, on the application of the evicted tenant, place him in possession of the premises.” S.B.CIVIL SECOND APPEAL NO.218/2001- Rameshwar Dayal vs. Mohan Lal Order dt: 19/2/09 5/7 5. Learned counsel for the respondent tenant could not seriously oppose this distinction in statutory provisions of two respective enactments. 6. The said provision of Section 15 only permits repossession of suit premises if the eviction is on the ground of personal bonafide need of the suit premises under Section 13(1)(h) of the Act and the landlord fails to utilize the premises evicted by the tenant for his own purposes for which such eviction was sought and if such premises are not used or are let out to other persons, the tenant has a right to claim repossession under the provisions of Section 15 of the Act within one year or five years, as the case may be, from the date of of eviction. This provision is clearly distinct from the provision of Section 12 (1) (b) and (2) of the AP Act of 1960 as quoted above. The other judgment referred by the learned first appellate court in the case of Hari Narain Daga vs. Heeralal and others – AIR 2001 SC 341 also makes an obiter reference to provisions of Section 15 of Rajasthan Act, which is a sort of enabling provision for the tenant to seek repossession in case eviction is made on particular ground of personal bonafide need of the landlord and that turns out to be a false ground S.B.CIVIL SECOND APPEAL NO.218/2001- Rameshwar Dayal vs. Mohan Lal Order dt: 19/2/09 6/7 lateron and the premises are not used by the landlord for his own need or is let out to somebody else. Otherwise the ground under Section 13 (1)(k) of the Act which permits the landlord to seek eviction of the suit premises from the tenant on the ground of said premises becoming unfit for human habitation is by itself a ground for seeking eviction and the same does not contemplate any right of repossession or re-entry by the tenant after repair or renovation of such premises. Said provision of clause (k) of Section 13(1) reads as under:- “(k) that the landlord requires the premises in order to carry out any building work. (i)at the instance of the State Government, in pursuance of an improvement scheme or development scheme; or (ii)because the premises have become unsafe or unfit for human habitation; or (iii)upon the requisition of a local authority” 7. Therefore, in view of aforesaid clear legal position, the first appellate court has clearly erred in directing the landlord to allow the tenant to re-enter and repossess the suit premises which was directed to be evicted on the grounds established by landlord under section 13 (1)(k) of the Act . S.B.CIVIL SECOND APPEAL NO.218/2001- Rameshwar Dayal vs. Mohan Lal Order dt: 19/2/09 7/7 8. Consequently, this second appeal is allowed and part of order of first appellate court to this extent is set aside. The remaining part to the extent of upholding the decree and eviction on the ground established under Section 13(1)(k) of the Act is maintained. The substantial questions framed at the time of admission are answered in favour of landlord and against the tenant. No order as to costs. (DR.VINEET KOTHARI), J. item no.59 baweja/-