- (1.) This appeal by special leave is against the judgment and order of the Division Bench of the High Court of Rajasthan dated 23rd February, 1988. The appellant is the tenant in the suit premises. The premises in question is a shop situated outside Delhi Gate, Udaipur, in the State of Rajasthan. In the said shop the appellant carried on the business of opticals. This fact is undisputed. He asserted that he was also running the business of advertisement by way of display of various advertisement boards (hoardings) at various places in the city of Udaipur. The case of the appellant was that though the appellant had taken the premises on rent on the basis of oral tenancy on 1st August, 1971, the rent-note in fact was executed on 30th May, 1972. The respondent had filed the suit for eviction of the tenant-appellant on three grounds, namely, (i) that the tenant-appellant had parted with possession of the roof of the said shop-room by putting up an advertisement board, (ii) by putting up such advertisement board, fixing the same on the roof of the said shop-room with iron angles, the appellant had caused material alteration to the premises; and (iii) the appellant had defaulted in payment of rent. On or about 20th April, 1979, the trial court decreed the suit on the ground of default in payment of rent, material alteration and sub-letting. The appellant preferred an appeal before the learned District Judge, Udaipur. who remanded the case back to the trial court for trial on all the three issues, on the ground that the appellant had not been allowed to cross-examine the respondent or to adduce evidence in defence. On remand. the trial court held that the appellant had caused material alteration by fixing the board on the roof; had parted with possession of the roof by such fixing of the board; and had committed default in payment of rent. Accordingly, a decree was passed against the appellant for causing material alteration and for parting with the possession of the roof but no decree was passed by the trial court on ground of default because the said default was held by the learned Trial Judge to be the first default. The appellant thereafter filed first appeal against the said judgment and decree passed by the trial court on 9th November, 1984. By the judgment and decree dated 20th March, 1987 the learned District Judge allowed the said appeal holding, inter alia, that by displaying the advertisement board the appellant had not caused any material alteration of the premises and display of such advertisement hoardings did not amount to parting with possession of the roof of the premises. In respect of default, on an analysis of the dates of payment it was held that there was no default in payment of rent for six months. The learned Trial Judge had held that the default was the first default therefore, there could be no decree for eviction on this ground. So even if the learned District Judge would have affirmed the findings of the Trial Court on the issue of default, there could not have been a decree in the said suit on the ground of default. The plaintiff-respondent preferred in appeal before the High Court. The said appeal was allowed only on the issue of parting with possession holding that the display of the board amounted to parting with possession of the premises. Accordingly, the decree for eviction under section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter mentioned as the 'Act', was passed. Section 13 of the said Act deals with the grounds for eviction of tenants. By clause (a), sub-section (1) of the said section provides that notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable under the said Act unless it is satisfied, inter alia, that the tenant had neither paid nor tendered the amount of rent due from him for six months. Sub-clause (b) of sub-section (1) of the said section makes the tenant liable to eviction if he has willfully caused or permitted to be caused substantial damage to the premises. Clause (e) of sub-section (1) of section 13 under which the decree in question, in the instant case, was passed provides as follows : "(e) that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or" As mentioned hereinbefore, the decree in this case was passed by the High Court under section 13(1)(e) of the Act on the ground that the appellant had parted with possession. The High Court in the judgment under appeal has noted that the plaintiff-appellant had not disputed that the advertisement board was installed on the roof of the shop. The High Court noted that the appellant has also not disputed that he was getting the rent for this board and the document which was tendered, viz., Exhibit 6 showed that the Paramount Services had written a letter to the landlord-respondent Gulam Abbas herein and the same had been accepted by the appellant. The said Ex.6 read as follows: "Shri Gulam Abbas Bhalam Wala, Udaipur. Dear Sir, We wish to write that we have taken the site for putting up commercial board on the terrace of the shop of Saran Optician. Udaipur. This site is with us for the last 1/ 2 year. Yours faithfully, Services. Sd/- Partner." The High Court was of the view, that perusal of the document indicated that Paramount Services had installed that board on the terrace of the shop and the site was with them for the last six months. The High Court further held that it transpired that the terrace of that shop had been parted away to the Paramount Services for installing the advertisement board. The High Court proceeded on the basis that Ex.6, mentioned hereinbefore, showed that the site was with the Paramount Services and it has been admitted by the tenant-appellant that he had charged the money for leasing out this site to the Paramount Services. According to the High Court two factors were relevant in this case : (1) whether the site was with the Paramount Services for the last six months and (2) that the defendant had admitted that he had received the rent for this. The High Court referred to the deposition of D.W.1 Gopal Saran which was as follows : "Uss Board Par Prachar Ke Teen Saal Ke Pandrah Sau Rupaye Main Leta Tha Jismen Painting Aur Board Aur Likhavat Ka Kharch Mera Tha" According to the High Court, these two factors established that the defendant had parted with part of the terrace to Paramount Services. This according to the High Court, was wrong as it had been clearly prohibited in the lease deed Ex. 1, Clause 3 reads as under : "Dukan Ko Lipa Pota Sapph Achhi Halat Men Rakhunga Aur Bagair Likhit Ijazat Aapke Koi Majid Tamir Na Kraunga Aur Na Dusre Kissi Aur Ko Muntkil Kar Sakunga. Main Khud Dukan Par Baithunga."
(2.) The High Court found that the tenant-appellant had mentioned that they would not part with the possession, notwithstanding hat the tenant-appellant had parted with the possession which was apparent, according to the High Court, from Ex. 6 and the statement of D.W.1 that he had charged rent for installing this board. These two factors went to show, according to the High Court, that the defendant had parted with the possession of part of the terrace so as to enable the Paramount Services to install the board in the premises. The Court accepted the submission on behalf of the respondent-landlord that there was parting with possession and the landlord was entitled to a decree for eviction under section 13(1)(e) of the Act. It may be mentioned that two other submissions were urged before the High Court on behalf of the landlord-respondent, namely, that the rent was tendered and that when it was refused by the landlord, the tenant had deposited the rent in the Court under section 19-A of the Act had not been established. There was also the finding on the issue of material alteration and that was also not established by the respondent landlord. But the High Court, in view of this finding under section 13(1)(e) of the Act, as set out hereinbefore, found it unnecessary to go into those reasons and passed a decree for eviction. Aggrieved thereby, as mentioned hereinbefore, the tenant has come up in appeal to this Court.
(3.) We find a certain amount of confusion as to what was-the actual state of affairs. The pleadings of the plaintiff-respondent, the landlord in connection with the allegations of parting with possession are set out in paragraphs 5, 6 and 8 of the plaint and these have been answered by the appellant in paragraphs 5, 6, 8 and 9 of the written statement. It may be appropriate at this stage to set out the same both in Hindi as well as in English. Paragraph 5 is as follows : "Hindi Original : 5.Yeh Ki Prativadi Ne Bina Vadi Ko Poochhe Avam Vadi Ki Anumati Prapat Kiye Bina Vivadgrast Dukan Ke Upar Chhat Par Ziter Traktar Ka Board Laga Diya Hai Jo Chhat Par Lohe Ke Angle Main Fix Kiya Huva Hai. In English : '5. Without permission and consent of the plaintiff the defendant has put up the board of Jitter Tractors on the roof of the disputed shop in question which is fixed on iron angles on the roof." Paragraph 6 reads as under : "In English : '6. The defendant has, without the permission and consent of the plaintiff given to the advertising agency the Board which has been displayed on the roof of the disputed shop taken by the Defendant from the Plaintiff on rent, in respect of which the Defendant had no right.' Hindi Original : '6. Yeh Ki Board Jo Vivadgrast Dukan Jo Ki Prativadi Ke Pass Vadi Ki Aur Se Kiraye Par Hai, Ki Chhat Par Lag Raha Hai Vah Vigyapan (Advertisement) Ka Board Hai Jisko Prativadi Ne Vadi Ki Anumati Prapat Kiye Bina Advertising Agency Ko Lagane De Diya Hai Jiska Ki Prativadi Ko Swatey Koyee Adhikar Nahin Hai.' Paragraph 8 reads as under : In English "8. The defendant has no right to place the Board of the Advertising Agency on the roof of the shop without permission of the plaintiff." Hindi Original : "8. Yeh Ki Partivadi Ko Bina Vadi Se Pocchhe Dukan Ki Chhat Par Advertising Agency Ko Board Langane Dene Ka Koyee Adhikar Nahin Hai." Paragraph 5 of the Written Statement reads as follows : "5. With regard to paragraph 5 of the plaint the defendant states that the Defendant had displayed a sign board on the roof of the disputed shop but it is false to state that any angle has been fixed or embedded on the wall of the shop or of the roof or on the floor of the roof. The sign board has been placed without damaging the walls or the floor of the roof in any manner whatsoever. The angles have not been embedded. In putting up this sign board, there was no necessity of obtaining written permission of the plaintiff. It was within the full knowledge of the Plaintiff and the Plaintiff never objected to the same, which means the plaintiff had consented to the same." Hindi Original "5. Vad Patra Ke Paira 5 Ke Liye Nivedan Hai Ke Prativadi Ne Ek Sign Board Vadgrast Dukan Ki Chhat Par Lagaya Hai Par Yeh Mithya Hai Ki Dukan ki Athva Chhat Ki Diwar Athva Farsh Main Angle Lagaye Ho Vah Sign Board Bina Dukan Ki Diwaron Athva Chhat Ke Farsh Ko Kisi Bhanti Hani Pahuchae Huve Lagaya Gaya Hai. Gada Nahin Gaya Hai. Is Sign Board Lagane Main Vadi Ko Likhit Anumati Lena Avashak Nahin Tha, Viase Vadi Ke Puran Gyan Main Yeh Board Lagaya Tha Tatha Aisa Karne Main Vadi Ne Kabhi Apatti Nahin Uthayee, Arthat Vadi Ki Awakriti Nahi Hai." 4. Para 6 of the written Statement reads as follows : In English "The allegations in paragraph 6 of the Plaint that the Board belonged to any other advertising agency is false. The defendant himself has placed the said board in the normal course of his carrying on the business. The defendant is using the said disputed shop on his own right for the purposes of carrying on his normal business." Hindi Original : "6. Vad Patra Ka Paira 6 Main Yeh Mithya Hai Ke Board Kisi Advertising Agency Ka Laga Huva Hai. Prativadi Swam Ne Vah Board Lagaya Hai Tatha Apna Sadharan Vavasaye Karte Huve Lagaya Hai. Tatha Vadgrast Dukan Ka Pane Sadharan Vavsaye Main Hi Upyog Kar Raha Hai Avam, Sadhikar Kar Raha Hai." Para 8 of the Written Statement is as follows : In English : "The Contents of para 8 of the Plaint are not admitted. The Defendant has not allowed anybody to put up the Board, but he has himself put up the same." Hindi Original : "8. Vad Patra Ka Paira 8 Savikar Nahin Hai. Prativadi Ne Board, Kisi Ko Lagane Nahin Diya Hai Apitu Swam Lagaya Hai." Paragraph 9 of the Written Statement is as follows : In English : "9. The defendant denies all the allegations in paragraph 9 of the Plaint. In particular the defendant states that the plaintiffi has no right to bring the present suit of eviction which has been filed on false grounds. The defendant has neither committed default in payment of rent nor he has allowed anybody to put up board on the shop, nor he has parted with possession of the lease-hold property or any part thereof to anybody. The defendant is in full control and possession (of the disputed shop). It may be mentioned that in the plaint the plaintiff has not alleged any act of sub-letting by the defendant." Hindi Original "9. Vad Patra Ka Paira 9 Sarvatha Aswikar Hai. Vadi Ko Koyee Swatav Nahin Hai Ki Vah Mithya Adharo Par Dukan Khali Karvaye Na To Partivadi Ne Koyee Chook Ki Hai, Kiraya Dene Main Uar Na Hi Usne Dukan Par Kisi Ko Board Lagane Diya Hai Aur Nahi Koyee Mukti Bhog Kiraye Li Huee Sampati Ka Partivadi Ke Kisi Bhi Bhag Ka Kisi Ko Bhi Hya Hai. Vah Prativadi Ke Pooran Bhugti Bhog Main Hai.";