Sobhagyamal & Anr vs Gopal Das Nikhra

Thus, the respondent was given benefit under Section 12(3) of the Act. The respondent preferred an appeal being Appeal No. 27A/1980 challenging the decree for ejectment on the ground of bonafide need. It would be pertinent to note that the landlord did not prefer any appeal or file any cross-objection challenging the refusal of decree on the ground of arrears of rent. The first appellate court confirmed the decree passed by the trial court. The respondent preferred a second appeal being Second Appeal No.47/1982. The second appeal preferred by the respondent was allowed by the High Court and the suit of the landlord on the ground of bonafide need was dismissed as premature. While allowing the appeal of the respondent, the High Court observed: "No decree for ejectment on the ground under Section 12(1)(a) of the Act could have been passed against the Appellant, because he had, admittedly, complied with the provisions of Section 13(1) of the Act." Against the said judgment and decree of the High Court, the landlord filed a special leave petition in this Court. During the pendency of the proceedings, the then landlord Lakshmi Chand expired and his legal representatives (appellants herein) were brought on record. The special leave petition was converted into Civil Appeal No. 3931/1986. During the pendency of the aforementioned proceedings, since the respondent had not deposited the rent or paid it to the landlord, the appellants served a notice dated 27.2.1991 upon the respondent demanding arrears of rent intimating him that he had committed a default in payment of rent due from 13.12.1984 to 13.2.1991. The said notice was served on the respondent on 5.3.1991. Despite the service of notice of demand for arrears of rent, the respondent did not pay the rent within two months of the service. The appellants/landlord filed a second suit being Suit No. 78A/1992 against the respondent under Section 12(1)(a) of the Act on the ground of default in payment of rent. During the pendency of these proceedings, matter was taken up by the Supreme Court in Civil Appeal No 3931/1986 and was disposed of on 24.8.1994. The Supreme Court held that insofar as the finding recorded by the High Court on the question of bonafide necessity is concerned, the Court does not find any ground to interfere with the same. The Court further held:

2. In the second proceeding, by judgment and decree dated 8.3.2000, the trial court decreed the suit holding that the rent from 13.12.1984 was due from the respondent and thus he had committed default in payment of rent and was liable to be ejected on the ground of arrears of rent. The respondent preferred an appeal in the High Court being F.A. No.86/2000. On 21.12.2000, the appeal of the respondent was allowed and the judgment and decree of the trial court was set aside. The High Court held that since the appellants herein did not take any steps to get the defence of the respondent struck out while the case was pending before the Supreme Court the appellants were precluded from getting a decree for default of the period when the case was pending before the Supreme Court. The appellants herein preferred a letters patent appeal before the Division Bench. LPA was dismissed as not maintainable and thus the appellants are before us.

3. From the aforesaid facts, it is apparent that the respondent/tenant got benefit of Section 12(3) of the Act in the previous proceedings and thus no decree for ejectment was passed against him on the ground of arrears of rent under Section 12(1)(a) of the Act. The second proceeding of filing a suit for ejectment under Section 12(1)(a) of the Act was initiated by the appellants herein/landlord after service of notice demanding arrears of rent due during the pendency of the previous proceedings. It was contended by the respondent that non-deposit of rent in court in the previous proceedings or tendering rent to the landlord could not be considered as arrears of rent; and that at best his defence against eviction could have been struck out under Section 13(6) of the Act. Non-payment of rent during the pendency of the previous proceedings would not be treated as arrears of rent to give a cause of action to the landlord to file a suit on the ground of arrears of rent. The High Court upheld this contention and found that no ground under Section 12(1)(a) of the Act was available to the appellants herein/landlord for non-payment of rent by the respondent/tenant during the pendency of the previous proceedings before the Court.

13. For the aforesaid reasons, Civil Appeal No. 1839/2004 is allowed. The impugned judgment dated 21.12.2000 passed by the High Court in F.A. No. 86/2000 is set aside. Plaintiffs' (appellants herein) suit is decreed for ejectment under Section 12(1)(a) of the Act and trial court's judgment and decree is confirmed. Since the matter is pending consideration for ejectment of the tenant since 1992, we direct the executing court to execute the decree within the period of three months from the date of filing of the execution application by the landlord.

14. In view of our order in Civil Appeal No. 1839/2004, no orders are required to be passed in Civil Appeal No. 1840/2004. Civil Appeal No. 1840/2004 stands disposed of accordingly.