1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. Kedar Lal & ors. vs. LRs. of Ram Dayal S.B. Civil Second Appeal No. 298/94 against the judgment and decree dated 4.6.1994 passed by the learned Addl. District Judge No.2, Jodhpur in Civil Decree Appeal No. 95/94 Date of Judgment: April 27, 2007. PRESENT HON'BLE MR. PRAKASH TATIA,J. Ms. K.C. Samdaria for the appellants. Mr. S.C. Maloo for the respondents. BY THE COURT: REPORTABLE This appeal is by the landlord against the dismissal of his suit by the trial court in Civil Original Suit No.91/86 dated 14.12.1992 and which was upheld by the first appellate court in Civil Appeal Decree No.95/94. Brief facts of the case are that the plaintiffs-landlords filed the suit for eviction of their tenant deceased Ram Dayal on 19.3.1974. The plaintiffs sought eviction of the tenant on the ground of their personal bona fide need. During pendency of the suit, the plaintiffs submitted an application under Order 6 Rule 17 C.P.C. in the trial court on 14.1.1986 and submitted that before few years, the defendant has materially altered the suit premises and that fact came to the knowledge of the 2 plaintiffs only on 29.12.1985, therefore, the plaintiffs want to incorporate another ground for eviction of the tenant and that is material alteration in the suit premises. The amendment was allowed by the trial court and the amended plaint was filed. The suit for eviction of the plaintiffs against the defendant, therefore, was on the ground of personal bona fide necessity of the plaintiffs and on the ground of material alteration in the suit premises by the tenant. The tenant-defendant filed the written statement as well as counter claim. In the written statement, the tenant-defendant denied any material alteration and submitted that the suit premises was taken on rent in the Samvat Year 1997,i.e. about the year 1940. The suit premises was taken on rent by the defendant's father on rent of Rs.15/- per month only and for that a rent deed was also executed by defendant's father in favour of the plaintiffs. The defendant submitted that the plaintiffs got the rent of the suit premises increased in violation to the provisions of by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The defendant, therefore, prayed that the standard rent of the suit premises may be fixed @ 37.50. As per the provision as was in force on the date when defendant submitted counter claim for fixation of standard rent the basic rent was as it was on 1.1.1943 and maximum rent could have been 2-1/2 times of that basis rent. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 3 was amended in the year 1975 and certain amendments were made on the basis of which the landlords also could have sought fixation of standard rent so as to increase the rent of the suit premises. The plaintiffs, therefore, filed a separate suit for fixation of standard rent to take benefit because of the amendment of law in the Act of 1950. Under this amended law, the basic rent is the rent of the premises which was as on 1.1.1962, therefore, could have been increased by 2- 1/2 times to said basic rent. The plaintiffs' subsequently filed suit was consolidated with the present suit. The trial proceeded and the plaintiffs' suit so far as eviction of the tenant on both the grounds, the personal bona fide necessity and material alteration in the suit premises, was dismissed by the trial court vide judgment and decree dated 14.12.1992. The trial court decreed the suit of the plaintiffs so far as fixation of standard rent is concerned and thereby declared the standard rent of the suit premises to be Rs.100/- per month from 1.6.1978. The plaintiffs preferred regular first appeal against the judgment and decree of the trial court dated 14.12.1992. In said regular first appeal, the defendant submitted cross-objection against the increase of rent. the first appellate court by judgment and decree dated 4.6.1994 upheld the finding of the trial court on issue of personal bona fide necessity and material alteration and thereby the plaintiffs' suit 4 remained dismissed so far as eviction of the tenant is concerned. However, the first appellate court allowed the cross-objection filed by the defendant and set aside the increase of rent made by the trial court and the first appellate court declared the standard rent of the suit premises with effect from 8.7.1975 to be Rs.37.50 per month. Being aggrieved against the judgment and decree of the first appellate court dated 4.6.1994, this second appeal has been preferred by the landlords. Following substantial questions of law were framed by this Court while admitting the appeal on 28.11.1994:- “1. Whether the finding on the question of material alteration effected in the property by the tenant are based on mis-reading and non-reading of material evidence. 2. Whether the lower appellate court erred in not going into the question of fixing of standard rent prayed for by the landlord in view of the fact the application of the landlord fixing of standard rent was after the incorporation of amendment in the Act.” It will be worthwhile to mentioned at this juncture that during pendency of the second appeal, the sole respondent-defendant Ram Dayal died on 18.11.1996.The appellant submitted an application under Order 22 Rule 4, C.P.C. before this Court on 16.1.1997. In this application, the appellant submitted that right to sue survives to the appellant against the legal representatives of the deceased tenant. Said 5 application was allowed by this Court and all the heirs of deceased tenant Ram Dayal were taken on record as legal representatives in this second appeal. On 29.1.2001, an application was submitted by the appellants stating therein that in the life time of deceased-tenant Ram Dayal, he alone was doing the business in the shop and his wife was living with him in the upper portion of the suit premises, therefore, according to the appellants, only the wife of the deceased-tenant could have been made party in the appeal. This application was submitted because of the reason that notices of this appeal were not served upon one of the married daughters of the deceased-tenant and, therefore, after mentioning above fact, it was prayed that the name of daughter of deceased-tenant may be deleted. Said application was allowed by this Court by order dated 19.2.2001 and name of respondent Ram Bhanwari was deleted. But no order was sought and passed on the plea which was taken by the appellants that only wife of deceased-tenant should have been impleaded as party in the appeal as legal representative of deceased Ram Dayal. It will be worthwhile to mention here that there is one application under Order 5 Rule 17, C.P.C. by the appellants wherein it has been stated that one of the sons of deceased tenant namely Purushottam and his wife Smt. Radha Devi are residing with Smt.Radha Devi and he, after reading the notice, did not accept the notice of the appeal and even did not allow the process server to affix the notice, 6 therefore, the service of notice upon said Smt. Radha Devi and Purushottam may be treated as sufficient. On 1.8.2003, an application was submitted by the appellants stating therein that the trial court passed the decree and determined the standard rent of the suit premises @ Rs.100/- per month with effect from 1.6.1978. In pursuance of the said decree, the tenant should have deposited the difference amount of the rent in the court. It is also submitted that since the order of the appellate court was stayed by this Court in this second appeal by order dated 7.11.2001, therefore, the tenant-respondent should have deposited the rent @ Rs.100/- per month at least from 7.11.2001. It is submitted that since the defendant has not deposited the rent, therefore, he is liable to be evicted on this ground. In this application, the appellant submitted that the plaintiff's son Purushottam is doing separate business in adjacent shop and the defendant himself in his statement, admitted that his son Purushottam is doing separate business and has nothing to do with the business of the defendant-tenant. It is also submitted that defendant's another son Ram Chandra is serving in medical company of veterinary medicines and other son Sushil is also serving in the Rajasthan Bank and as such, none of the family member of the defendant Ram Dayal was doing business in the life time of the deceased-tenant and, therefore, none of the heir of deceased Ram Dayal is tenant as defined under Section 3(vii) of the Rajasthan Premises 7 (Control of Rent and Eviction ) Act, 1950. The respondent submitted detail reply to the application of the appellant dated 1.8.2003 and stated that the respondent is continuously depositing the rent and also stated that the interim order passed by this Court staying the order of the first appellate court by which the rent stands reduced, is of no relevance so far as the present appeal is concerned. For other allegation, the respondent's legal representatives submitted that in the life time of deceased Ram Dayal, his wife Radha Devi was also helping him regularly in the business and after the death of her husband, she was continuously doing the same business. It is also submitted that her grand-sons Mahesh and Virendra were also helping Smt. Radha Devi who was helping to Ram Dayal also in the life time of Ram Dayal. It is also submitted that apart from above, the sons of deceased Ram Dayal were also helping in business of deceased-tenant in his life time and thereafter they were also actively helping in the business of their mother, that is the wife of deceased Ram Dayal. The above facts narrated in detail are relevant because of the reason that the appellants are seeking decree of eviction of the respondents from the suit premises on the ground that none of legal representative of deceased Ram Dayal was doing business in the suit premises during life time and up to the time of death of Ram Dayal and even if it is admitted that Smt. Radha Devi was doing the business in 8 the suit premises from the time of Ram Dayal then said Radha Devi also died. It is also submitted by the learned counsel for the appellants that after the death of Smt. Radha Devi, none of the legal heir of deceased Ram Dayal and Smt. Radha Devi are doing any business in the suit premises. It is also submitted that the grand-sons are not heirs and, therefore, in view of the judgment of this Court delivered in the case of L.R. Of Mishrimal vs. L.Rs. Of Sukh Lal & ors. (2006(2) DNJ 1117) and Dwarkadass v. Narayan Dass ( 2007(1) RLW 446), the persons may they be family members of the tenant and were carrying on business with the tenant in his life time and continued with business till the death of the tenant even then they are neither tenants as defined under Section 3 (vii) of the Act of 1950, nor they can claim any protection under the Act of 1950. The learned counsel for the appellants also relied upon earlier judgment of this Court delivered in the case of Shyam Lal vs. Hira Lal (1987 RLW 621) as well as in support of his contention that the business in the life time of deceased alone is not sufficient but it should be continued till the time of death of deceased-tenant by the legal heir, the learned counsel for the appellants relied upon the judgment of this Court delivered in the case of Chiman Lal and anr. vs. Narendra Kumar (1995(2) RLW 415 and Smt. Usha and anr. vs. Sukhsampat Mal (1995(2) RLW 14). On merits, the learned counsel for the appellants submitted that 9 both the courts below misread the statement of the defendant as well as ignored the important admission of the defendant and by that, wrongly deiced issue of material alteration against the plaintiffs. It is submitted that the defendant, in his statement, very clearly admitted that he put the girder in the shop during pendency of the suit. The learned counsel for the appellants further vehemently submitted that in view of the fact that lot many changes were made by the defendant- tenant in the suit premises then on that ground, the two courts below should have granted decree of eviction against the tenant-defendant. It is also submitted that in view of the judgment of this Court delivered in the case of Gurudev Singh & ors. vs. Mohammed Abdul Razak ( 2003(3) RLR 90) coupled with the fact that it is the defendant-tenant admitted that he who put the girder in the shop then the case of material alteration stands proved. This Court in the above case, upheld the concurrent finding of fact recorded by the two courts below and held that the finding of the two courts below about material alteration by putting girder in the basement was legally right. The learned counsel for the respondents submitted that the appellants have raised absolutely new question of fact before this Court and is seeking the decree for eviction against the legal heirs of the tenants on the grounds that they are not protected by the provisions of the Rent Control Act, that is the Act of 1950. It is also submitted that 10 the defendant Ram Dayal was doing the business of sweet and his wife was also helping Ram Dayal in his life time and she was continuing the business. Ram Dayal's sons as well as grand-sons were also helping Ram Dayal in doing business and till today they are doing the same business. It is also submitted by the learned counsel for the respondents that the premises in question is one and had composite use, i.e., it was let out for residential as well as for commercial purpose and this fact is admitted fact. The tenant with his family members was and is residing in the upper portion of the shop and was doing business in the lower portion of the rented premises in the shop. It is admitted case of the appellant-landlords that the deceased was residing in the same premises with his family and even during pendency of this appeal, the appellants admitted that son Purushottam is residing in the same premises with his mother after the death of Ram Dayal. Therefore, very foundation for claiming any relief is missing so far as this fact is concerned. It is also submitted that otherwise also, the appellants themselves impleaded the legal representatives of Ram Dayal as party in the present suit and they cannot now say that the plaintiff's right to sue did not survive against the legal representative of Ram Dayal. The learned counsel for the appellant at this juncture, pointed out that mere impleading legal representatives of the tenant as party in suit or appeal, is of no consequences because of the simple reason that even if the tenant 11 leaves behind heirs as well as legal representatives but if they were not residing with the tenant in the life time of tenant in residential premises and if they were not carrying on business with the deceased- tenant in his life time and upto his death, then they are not tenants despite the fact that they are legal representatives of deceased-tenant. The learned counsel for the respondents further pointed out that in fact the finding of fact recorded by the two courts below is based upon the view taken by this Court in several judgments and, therefore, even if there is possibility of taking second view after appreciation of evidence, then neither re-appreciation of evidence is permissible in second appeal nor there is any reason to set aside the judgment and decree of the trial court on the question of fact. The learned counsel for the respondents submitted that the law on question of material alteration is very clear and basically the Hon'ble Supreme Court in the judgment of Om Prakash vs. Amar Singh and anr. (AIR 1987 SC 617) clearly laid down the parameters which may not amount to material alteration in the suit premises. In support of his plea, the learned counsel for the respondents relied upon the judgment of this Court reported in the case of Smt. Supyar Bai vs. Smt. Gordhan Bai through her Legal Representatives (1992(1) WLC 590) as well as judgment of this Court (by me) delivered in S.B.Civil Second Appeal No.323/89-LRs. of Bal Krishna vs. Mohan Singh decided on 1.5.2003 and 12 the judgment delivered in the case of M/s Kistur Chand Jawari Lal vs. Mangi Lal( 1990(2) RLR 534). So far as standard rent is concerned, the learned counsel for the respondents submitted that the respondents submitted counter claim when the old law was in force and, therefore, he had right to get the relief in accordance with the provisions of old law as his right crystallized on the date when he filed the counter claim and, therefore, his claim for getting the standard rent determined under the law which was in force at relevant time is not affected by the subsequent amendment made in the Act of 1950, in the year 1975. For this learned counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Raminder Singh Sethi v. D. Vijayarangam (AIR 2002 SC 2087) and the judgment of this Court delivered in the case of Jamandass v. Gokuldass (1983 RLW 565). The learned counsel for the respondents also submitted that the first appellate court rightly determined the rent of the suit premises @ Rs.37.50/- I considered the submissions of learned counsel for both the parties and perused the record also. The first question which goes to the root of the matter is whether the legal representatives of deceased Ram Dayal are tenants as defined in Section 3(vii) of the Act of 1950. This plea has been revised by the 13 landlord because the original tenant died during pendency of this second appeal. The plea raised is dependent upon the fact. Clause (vii) of Section 3 of the Act of 1950 provides that the person by whom or on whose behalf rent is payable to his landlord and the person who continued in possession of the rented premises,after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act, is a tenant. However, in the event of death of said tenant, as referred in sub-clause (a) of clause (vii) of Section 3, when the premises is residential then such tenant's surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him, becomes the tenant but for this also there is further condition that if the premises is residential then the said persons should have resided with the deceased tenant during his life time and continued so up to his death. For commercial premises, the only said person is tenant who was carrying on business with the deceased tenant during his life time and continued as such up to the time of tenant's death. Therefore, the questions of facts for deciding this issue are that whether the deceased tenant Ram Dayal had spouse, son, daughter or any other heir who are heirs in accordance with the personal law, were residing in the upper floor of the suit premises (because that was a residential accommodation) and they continued to reside with him till the time of death of the deceased-tenant. For commercial premises, (that is the 14 shop below the residential accommodation). Whether said person was carrying on business with tenant and continued as such till the death of the tenant ? It has been contended by the learned counsel for the appellants that the deceased Ram Dayal himself in his statement, clearly admitted that his one son is running his separate shop near the shop in dispute and other two sons of the deceased tenant were in service. The defendant-deceased tenant Ram Dayal in his statement nowhere stated that any of his legal heir was carrying on business with him in the premises in dispute as member of his family, therefore, their does not arise any question of doing any business by any of the family members of the deceased-tenant with the tenant during his life time or at the time of tenant's death. The learned counsel for the appellants vehemently submitted that since the legal heirs are seeking protection under the Act of 1950, therefore, they should have pleaded and should have disclosed the complete facts for claiming the benefit under the Act of 1950 and for that purpose, the burden was upon the tenants to prove that they still fall in the category of tenants covered under sub-clause (b) of clause (vii) of Section 7 of the Act of 1950. The learned counsel for the landlord-appellants relied upon the admission of the legal representatives of the tenant made in reply to the application of the appellants dated 1.8.2003. The reply was filed by the respondents legal representatives of deceased tenant 15 wherein it is stated that the defendant-deceased-tenant's wife Smt. Radha Devi was also doing and helping in the business of deceased tenant in the life time of the tenant her husband and her two grand sons Mahesh and Virendra also were helping the deceased-tenant in the business during the life time of the deceased tenant. The learned counsel for the appellants submitted that in view of the judgment of this Court delivered in the case of L.R. of Mishrimal vs. L.Rs. of Sukh Lal & ors. (2006(2) DNJ 1117) and earlier judgment of this Court delivered in the case of Shyam Lal vs. Hira Lal (1987 RLW 621), the grand-sons are not tenants, as they are not heirs of deceased tenant Ram Dayal in the life time of Ram Dayal's sons as per Schedule 1 of the Hindu Succession Act 1955. So far as this plea that Ram Dayal's grand sons cannot be tenants in view of the above judgments, that will not detain this Court for long because of the reason that in reply to application of the appellants-landlord, the legal representatives of tenant submitted that the deceased tenant's wife as well as deceased tenant's sons after their service time, used to help the deceased tenant in carrying on business in the suit property. Therefore, even if the working of grand sons of Ram Dayal in the suit premises is ignored and they may be held not to be tenants in the suit premises then plea of the legal heirs of deceased tenant Ram Dayal that they were carrying on business with deceased Ram Dayal survives. Since the appellant is relying upon the said 16 admission of the tenants legal representatives then that admission does not prove that no heir, particularly the wife and sons of deceased tenant were not working with tenant in the shop in dispute, rather their stand is that they were doing the business with the tenant. At this place, it will be worthwhile to mention here that since cause accrued to the appellant during pendency of the appeal for getting any order of eviction if is permissible under the law then that accrued to the appellants during the pendency of the second appeal only and the appellants themselves after the death of tenant Ram Dayal submitted application under Order 22 Rule 4 C.P.C. on 16.1.1997 and did not choose to raise this ground that the heirs of deceased Ram Dayal were not residing with him in the part of the premises and were not carrying on business with him. Instead of submitting so, the appellants submitted that right to sue survives against the legal representative of deceased tenant and, therefore, they all be impleaded as party in the present second appeal. The appellants at this time, could