S.B.C.S.A NO.228/99-Mahaveer Prasad vs. Bhagirath & Ors. Order dt: 5/12/2008 1/3 S.B.CIVIL SECOND APPEAL NO.228/99 (Mahaveer Prasad vs. Bhagirath & Ors.) DATE OF ORDER : 5/12/2008 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Vikas Balia, for the petitioner. Mr.Narendra Singh, for the respondents. 1. This defendant's second appeal is directed against the concurrent judgments of two courts below giving eviction decree in favour of plaintiff respondent in respect of shop situated at Mohalla Sikligarh, Fadh Bazar, Bikaner. 2. The substantial questions of law framed by this Court while admitting the present second appeal are as under: “1.Whether the courts below have committed substantial error of law in not dismissing the suit holding it to be barred under Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (in short Act No.17 of 1950)? 2.Whether enhancement of commercial premises and increasing its rent by the landlord prohibit him to file a suit for eviction against the tenant on the ground set forth in clause (h) of sub-sec(1) of Sec.13 of Act No.17 of 1950 before the expiry of five years from the date when the commercial premises was increased and S.B.C.S.A NO.228/99-Mahaveer Prasad vs. Bhagirath & Ors. Order dt: 5/12/2008 2/3 the rent was enhanced.?” 3. Learned counsel for the respondent plaintiff fairly pointed out that as far as controversy involved in present appeal is concerned, the same is covered by the decision of this Court in case of M/s Vadhumal Kanhaiyalal & Ors. vs. Hemchand & Ors. - 2007 WLC (Raj.) UC 270 in which it was held that the period of five years prescribed in Section 14(3) of the Rent Control Act, 1950 does not get extended every time when the landlord changes and further that even if in the irregularly instituted suit within the said period of five years, if the decree of eviction is passed after five years, the defect stands cured. The relevant portion of the said judgment from para 11 is reproduced hereunder: “The words Section 14(3) are “no suit shall lie against a tenant” and not “no suit shall be instituted”. The word “Instituted” denotes a point of time whereas the word “Lie” denotes a period of time. Therefore, even if a suit is instituted within a period of five years, it may be held to be irregularly instituted suit but if decree of eviction is passed in such a suit after five years, the said irregularity gets cured over the period, by lapse of time and the purpose of protection given to the tenant under Section 14(3) of the Act is achieved and such decree passed after five years cannot be said S.B.C.S.A NO.228/99-Mahaveer Prasad vs. Bhagirath & Ors. Order dt: 5/12/2008 3/3 to be hit by Section 14(3) of the Act and cannot be declared to be a nullity.” 4. As far as other ground of eviction of personal bonafide need is concerned, there are concurrent findings of courts below and same do not give rise to any substantial question of law. Since the question no.1 framed by this Court is bound to be answered against the defendant appellant in view of aforesaid decision of this Court in M/s Vadhumal Kanhaiyalal's case (supra), the question No.2 also deserves to be answered against the defendant appellant as the same pertains to institution of suit within said period of five years even after increase in the area and rent of the same premises, since the courts below have held that there was no tenancy in favour of defendant appellant, on this account. 5. Accordingly, this appeal of defendant is dismissed by answering both the questions in negative and against the appellant defendant. No order as to costs. (DR.VINEET KOTHARI), J. item no.55 baweja/-