SBCSA NO.329/2007 – SURESH KUMAR V/S LRs. OF SMT. BHANWARI DEVI : JUDGMENT DTD.20.8.2008. 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.329/2007 Suresh Kumar versus Legal Representatives of late Sh. Bhanwari Devi PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr. Sandeep Shah, for the appellant. Mr. Chaitanya Gehlot, }for the respondents. Mr. Pawan Kumar Sharma } DATE OF JUDGMENT : 20th August, 2008. JUDGMENT 1. This appeal has been filed by the defendant – tenant being aggrieved by the concurrent findings of two courts below directing the eviction of defendant from the suit premises, a shop situated in Churu. SBCSA NO.329/2007 – SURESH KUMAR V/S LRs. OF SMT. BHANWARI DEVI : JUDGMENT DTD.20.8.2008. 2/6 2. Mr. Sandeep Shah, the learned counsel for the appellant – defendant urged that since the defence of the defendant was struck down under Section 13(5) of the Rent Control Act, 1950, the Courts below have erred in directing the eviction of the appellant – defendant reading the averments made in the written statement filed by the appellant – defendant before the learned trial Court which was part of his defence. The learned counsel for the appellant also urged that the plaint filed by the plaintiff did not contain any plea on behalf of the plaintiff that there was a default in payment of rent originally agreed between the parties at Rs.450/- per month, but the averment made in the plaint only showed that the plaintiff had averred that the defendant had failed to pay enhancement in rent as stipulated in the lease-deed Ex.1. He drew the attention of the Court towards para 5 and 6 of the plaint in this regard. He relied upon the decision of this Court in the case of B.B. Bhalla V/s Rameshwar Kishore Badhwar reported in 2001(2) RLW 1194 and Phool Chand and another V/s Dr. Gulab Chand reported in 1999 DNJ (Raj.) 771 in support of his submission that the pleadings regarding non-payment of rent by the tenant SBCSA NO.329/2007 – SURESH KUMAR V/S LRs. OF SMT. BHANWARI DEVI : JUDGMENT DTD.20.8.2008. 3/6 and also his failure to tender the rent for a period of six months should be specified in the plaint and in absence of the same, the suit could not be decreed on the ground of default. He further submitted that since on account of death of her son, the plaintiff resided in Assam, therefore, the defendant could not pay any rent to the plaintiff after October, 1997 to the plaintiff or her power of attorney holder. 3. Mr.Chaitanya Gehlot, appearing for the plaintiff – respondent on the other hand submitted that paras 5, 6 and 7 of the plaint clearly makes out that the plaintiff had pleaded that the defendant had failed to pay lease rent as agreed between the parties in the lease-deed Ex.1 and not only the original rent of Rs.450/- per month, but enhanced rent of Rs.500/- per monbth from 1.1.1996 to 31.5.1997 and at the rate Rs.600/- per month for the period from 1.6.1997 to 30.6.1999. He drew the attention of the Courts towards para 6 of the plaint that the defendant had paid rent of Rs.2250/- under receipt No.109 dated 30.12.1995 and thereafter for a period of 17 months for a period from 1.1.1996 to 31.5.1997 at the rate of Rs.500/- per month Rs.8500/- and for a period from 1.6.1997 to 30.6.1999 SBCSA NO.329/2007 – SURESH KUMAR V/S LRs. OF SMT. BHANWARI DEVI : JUDGMENT DTD.20.8.2008. 4/6 for a period of 25 months at the Rs.600/- per month Rs.15000/- total Rs.23,500/- were due to be paid by the defendant which were not paid and thus, there was default in payment of rent and the plaintiff was entitled to decree. He further submitted that on account of defence of the defendant having been struck down by the learned trial Court under Section 13(5) of the Act, still the Courts below could refer to the averments made by the defendant in the written statements as they were admissions of the defendant, even though defence was struck down in accordance with the provisions of Section 13(5) of the Act. He submitted that since both the Courts below have concurrently found that default in payment of rent by the defendant as a finding of fact, no substantial question of law arises in the matter and the appeal filed the defendant is without merit and the same deserves to be dismissed. 4. I have heard the learned counsel and given my thoughtful consideration to the relevant contentions and perused both the judgments of the Courts below and the judgments cited at the bar. SBCSA NO.329/2007 – SURESH KUMAR V/S LRs. OF SMT. BHANWARI DEVI : JUDGMENT DTD.20.8.2008. 5/6 5. This Court is of the opinion that no substantial question of law arises in the present appeal. The Courts below have found clearly that there was pleadings in the plaint to the effect of non-payment of due rent by the defendant for specified period. Mere reference to the averments made in the written statement of the defendant, even though his defence was struck down cannot be said to be prohibited in law because to the extent of averments made in the written statement, which is the case set up by the defendant, the Court can look into it even if the defence is struck down in accordance with Section 13(5) of the Act. It is true as per the judgments cited at the Bar that burden lies upon the landlord to prove that the tenant is defaulter, but admittedly the defendant has stated in his written statement that he paid the rent to the plaintiff- landlord only upto October, 1997. Thereafter he could neither pay the said rent nor tender the payment by money order or otherwise as she was living away in Assam after the death of her son. The defendant has not explained in his written statement in any manner as to what prevented him from paying such rent in question to the power of attorney holder of the plaintiff – respondent who lived in Churu itself. The averments made in in SBCSA NO.329/2007 – SURESH KUMAR V/S LRs. OF SMT. BHANWARI DEVI : JUDGMENT DTD.20.8.2008. 6/6 para 5, 6 and 7 are very clear and they categorically state that without giving valid reason, the defendant has failed to pay and tender the said rent agreed between the parties. The amount in question has also been specified in para 6 of the plaint. Thus, the plaintiff had discharged his burden about making pleading and also proving the fact of default. The said findings arrived at by both the Courts below concurrently are pure findings of facts and do not give rise to any substantial question of law, which is a sine qua non for maintaining second appeal under Section 100 C.P.C. Thus, the present second appeal is found to be devoid of merit and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.48 Ss/-