1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. Ogadji @ Ambalal vs. Khemraj S.B. Civil Second Appeal No.96/1999 against the judgment and decree dated 15.2.1999 passed by the learned Addl. District Judge No.1, Udaipur in Civil Appeal No.160/97. Date of Judgment: May 17, 2007. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr. Narendra Singh for Mr. J.K. Bhaiya for the appellant. Mr. R.S. Mankad and Mr. Dilip Kawadia for the respondent. BY THE COURT: Heard learned counsel for the parties. The appeal against the eviction decree passed by the trial court and upheld by the first appellate court against the appellant- tenant dated 30.11.1996, of the trial court and dismissal of the appeal vide judgment and decree dated 15.2.1999. Brief facts of the case are that the plaintiff filed the suit for eviction of his tenant on the ground that the plaintiff is residing at Village Samija Tehsil Kotra. The plaintiff wants to shift to Udaipur City with his family. The plaintiff also submitted that his one son 2 Devi Lal already started residing in the Udaipur City and for his residence, he had to take a house on rent. It is submitted that his son is studying at Udaipur and is paying rent of Rs.60/- per month for a small room. Therefore, according to the plaintiff, the plaintiff is in need of the house. The plaintiff also pleaded that on the occasion of marriage of his daughter, he was in need of some money, therefore, he borrowed a sum of Rs.2500/- from his tenant-defendant. The plaintiff agreed that he will not pay the interest over Rs.2500/- to the defendant and the defendant-tenant may adjust the interest against the rent. It will be worthwhile to mention here that the rent of the suit premises was Rs.20/- per month only. The plaintiff even offered Rs.2500/- to the defendant but he refused to accept the said amount and did not vacate the suit premises. In para 8 of the plaint, the plaintiff stated that cause of action accrued to him on 15.1.1989 when plaintiff offered Rs.2500/- to the defendant and he refused to accept the said amount and also refused to vacate the suit premises. Because of these pleadings, the defendant in second appeal, submitted that in fact by the transaction mentioned above of advancement of money, by the defendant to the plaintiff and by the agreement of the plaintiff 3 and defendant that the defendant will adjust the interest against the rent then it constituted a mortgage and, therefore, in view of such pleadings of the plaintiff, the plaintiff's suit for eviction of the defendant-tenant, treating him to be tenant only, was not maintainable, as by said pleadings, no cause of action stands disclosed for seeking eviction of the appellant-tenant from the suit premises. It is also contended by the appellant in second appeal that since the plaintiff himself in his plaint stated that cause of action accrued to him only because he offered the loan amount to the defendant of Rs.2500/- for re-payment which was not accepted by the defendant-tenant and, thereafter, he did not vacate the suit premises then the plaintiff has not made his need as ground for eviction of the tenant in the relevant para of the plaint and, therefore, there is no cause of action disclosed in the plaint. The learned counsel for the appellant also submitted that the plaintiff as well as plaintiff's son both admitted that they mortgaged the property with the defendant for a consideration of Rs.2500/- and the plaintiff also filed one suit no.52/81 prior to the filing of this suit against the defendant. In that suit, the plaintiff sought redemption of the mortgage house. Said suit was dismissed by the trial court on 2.1.1987. Therefore, also the property was 4 mortgaged, is proved from the admission of the plaintiff himself and, therefore, the suit was not maintainable as framed by the plaintiff. The learned counsel for the appellant-tenant further submitted that as per sub-section (2) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, it is mandatory duty of the court to decide the issue of partial eviction and the court should have granted the decree for the portion, which could have satisfied the need of the plaintiff. According to the learned counsel for the appellant, Hon'ble the Apex Court in the case of Rahman Jeo Wangnoo v. Ram Chand and others (AIR 1978 SC 413) laid down that even if there is no pleading and no issue, even then it is duty of the court to decide whether by evicting the tenant from the part of the premises, the need of the plaintiff can be satisfied and if can be satisfied, then a decree can be granted only for that part of the suit premises. The learned counsel for the appellant relied upon the judgment of this Court delivered in the case of Riyaz Mohammad vs. Rameshwar ( RLW 1989(1) p. 95), wherein it has been held that the issue of partial eviction can be raised in second appeal and it is duty of the court to decide the issue in the light of the decision of the Hon'ble 5 Supreme Court referred above. In view of above submissions of the learned counsel for the appellant, following substantial questions of law were framed by this Court while admitting the appeal on 5.5.1999:- “(1) Whether the averments made in the plaint about the cause of action clearly dis-entitle the plaintiff from seeking a decree for eviction on the ground specified under clause (h) of sub-sec.(1) of Sec.13 of Act No.17 of 1950 ? (2) Whether the learned courts-below have erred in not considering the question of partial eviction and the impugned judgment and decree are vitiated on this count alone ?” I considered the submissions of the learned counsel for the appellant and perused the record also. So far as contention of the learned counsel for defendant- appellant-tenant that the plaint as framed, does not disclose the cause of action is concerned, it will be worthwhile to mention here that in the plaint the plaintiff clearly stated that the suit premises is required for the need of the plaintiff and as well as plaintiff's family members. In the trial court a specific issue was framed on the basis of the pleadings of the parties with respect to the claim of the plaintiff's need for the suit premises. Mere non-mentioning 6 of this fact in one para of the plaint that cause of action accrued because of the need of the plaintiff, it cannot be said that the plaintiff is not disclosing the cause of action. The cause of action is total bundle of facts on the basis of which the plaintiff sought relief in the suit. There was no objection of the defendant- appellant in his written statement about the lack of pleading. Some defects in the pleadings are curable defects and they can be corrected by the plaintiff, provided the defendant takes objection about the lack of pleading in the written statement itself or before that, by filing application under Order 7 Rule 11, C.P.C. for getting the plaint rejected under Order 7 Rule 11,C.P.C. on the ground of non-discloser of cause of action. The defendant understood the case properly and took all the defences on merit of the case which he thought fit for getting the suit of the plaintiff dismissed, therefore, the defendant's objection about frame of suit is only after thought as well as devoid of substance as defendant himself understood the plaintiff's case well. The trial court thereafter further made it clear by framing the issue involved in the suit. Both the parties led their evidence and after defendant's failing in getting the suit dismissed on merit, he straight way wants to raise this objection about lack of pleading or defect in pleading in 7 second appeal, which is not permissible. At this place, it will be worthwhile to mention here that no such ground has been raised by the defendant-tenant in regular first appeal preferred before the lower first appellate court. Therefore also, the defendant cannot be permitted to raise this ground in the second appeal. Be it as it may be, from the plaint, it is clear that the plaintiff filed the suit for eviction of his tenant on the ground of personal bona fide necessity for which he clearly stated that he has no other residential accommodation at Udaipur and he wants to shift to reside in the Udaipur City with his family and in that process, his own son started living at Udaipur and paying Rs.60/- per month as rent for a small room as compared to the rent which the plaintiff was getting from the defendant which is Rs.20/-. The defendant, in second appeal, raised objection that the transaction between the plaintiff and defendant of landing Rs.2500/- on interest, amounts to mortgage of the house. The basis of said plea is not because of the defence taken by the defendant in the written statement or deciding the issue by the trial court and the first appellate court, but has been raised in second appeal by help of the alleged admission made by the plaintiff and his son in their statements, where they stated that 8 the suit property was mortgaged with the defendant-tenant for a consideration of Rs.2500/-. Since no such mortgage deed was submitted by the defendant nor it was summoned from the plaintiff, then for want of the pleading of the defendant as well as evidence on recored, the mortgage has not been proved. The alleged admission of the plaintiff and his witness son is required to be read in the context in which it was stated. In the plaint, the plaintiff clearly stated that he took loan of Rs.2500/- from the tenant. In the plaint, he never mentioned that for security of loan amount, the suit property was mortgaged with the defendant. The defendant in his written statement, admitted that he is tenant in the suit property. In the written statement, the defendant nowhere stated that he is in possession of the suit property as mortgagee in possession. Therefore, no evidence can be read bereft of the fact pleaded and the case set up by the parties. The learned counsel for the appellant could not brought to the notice of this Court any provision of law which prohibits the landlord from taking loan from the tenant without there being a security. In view of the above facts, the contention of the appellant that the suit as framed was not maintainable, does not arise as an issue in the present suit at all and, therefore, the argument advanced by the 9 learned counsel for the appellant deserves to be rejected. So far as judgment relied upon by the learned counsel for the appellant delivered by the Hon'ble Supreme Court in the case referred above, in relation to defining the cause of action, has no application to the facts of this case and it is held that the plaintiff fully disclosed the cause of action under the provisions of the Transfer of Property Act, under which the tenancy was created and the plaintiff has right for seeking decree of eviction of the tenant on accrual of cause of action to the plaintiff under the provisions of Section 13(1) of the Act of 1950. Next substantial question of law is with respect to the legal objection of the defendant-appellant raising for the first time in second appeal that the two courts below have not decided the question of partial eviction which is required to be decided under Section 14(2) of the Act of 1950, therefore, the judgments and decrees of both the courts below be set aside. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was amended in the year 1975. Sub-section (2) of Section 14 was inserted by the amendment in the year 1976. Hon'ble the Supreme Court laid down in the judgment of Rahman Jeo Wangnoo (supra) that the court is required to decide the question of partial eviction before passing 10 the eviction decree against the tenant. This Court, as back as in the year 1989 held that this question can be raised even in second appeal. Despite this legal position, in a suit filed by the landlord on 6.2.1989, the defendant-tenant did not choose to take help of provisions of Section 14(2) of the Act of 1950 and the judgment of the Hon'ble Supreme Court delivered in the case of Rahman Jeo Wangnoo vs. Ram Chand and others ( AIR 1978 SC 413) and the judgment of this Court delivered in the case of Riyaz Mohammad v. Rameshwar (RLW 1989(1) p. 95). Then in that situation, it will be absolutely unjust to upset the decree passed by the two courts below for eviction of the tenant-defendant, who himself was party to decree granted by the two courts below and was knowing it well that he in addition to his other rights, also has right to claim for part of the premises on satisfying that need of the plaintiff can be satisfied by eviction of the tenant from part of the premises. Be it as it may be. Since the material is available on record . The issue of partial eviction can be decided by this Court in second appeal, as rule 24 of Order 41, C.P.C. empowers the appellate court to pronounce judgment where the evidence on the record is sufficient to enable the appellate court to pronounce judgment inspite of the fact that no decision was given by the courts below 11 on said issue. In the plaintiff's evidence, it has come that the house in dispute has two rooms in the ground floor and two rooms in the first floor. The plaintiff in his plaint itself pleaded that he had four sons and three daughters and plaintiff's one son Ramesh Chand was married at that time. In evidence, the plaintiff proved this fact. The defendant in his written statement itself submitted that he has large family and he has one wife and nine children. His brother is also residing with him. In view of the above facts, there is no possibility that the need of the plaintiff can be satisfied from the part of the premises nor the defendant can live in the same house along with his so large family. In view of the above substantial questions no.1 and 2 are decided against the appellant. In view of the above the appeal deserves to be dismissed. However,the learned counsel for the appellant prayed that some time may be granted to the appellant for vacating the suit premises. I considered the prayer of learned counsel for the appellant and looking to the facts of the case, this Court is of the view that the appellant be granted time up to 31.12.2007 to vacate the suit premises. Therefore, it is ordered that in case, the appellant furnishes 12 a written undertaking before the trial court within a period of three months from today that he shall hand over the vacant possession to the landlord by or before 31.12.2007 and shall not part with the possession or sublet the suit premises during this period and shall pay all the arrears of rent and decretal amount, if due, and shall also pay the rent up to 31.12.2007(in advance) within a period of three months from today before the trial court or directly to the landlord, the decree under challenge shall not be executed till 1.1.2008. In case of non-compliance of the order or default in payment of amount mentioned above, the decree shall become executable forthwith. With the aforesaid concession, this appeal is dismissed. ( PRAKASH TATIA ),J. mlt.