S. K. MAL LODHA, J. - (1.) THIS is a second appeal by the defendant-tenant (appellant) against the judgment and decree dated April 5, 1973, passed by the Additional District Judge, Sriganganagar, by which he confirmed the decree for arrears of rent and ejectment dated October 27, 1972 of the Civil Judge, Sri-Ganganagar.
(2.) A few facts deserve recall here: The Plaintiff respondent (Landlord) instituted a suit for arrears of rent and ejectment against the defendant-appellant. The case of the plaintiff-respondent was that the defendant-appellant is a tenant on monthly rent of Rs. 60/- p. m. in shop No. 52/4. Gole Bazar, Sriganganagar. The month of tenancy, according to the plaintiff, is 1st of every English calender month. The rent from April 1, 1969 to August 31, 1969 amounting to Rs. 300/- was due from the defendant. The ejectment was sought on the ground that the shop was let out for business purposes, but the defendant has kept it closed for the last six years preceding the date of the institution of the suit whereby contravening the terms of the tenancy. An additional ground for ejectment under Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') was also averred in para 4 of the plaint, with which I am not concerned in this appeal. The plaintiff served a notice dated August 2. 1969 upon the defendant under Sec. 196 of the Transfer of Property Act, terminating the tenancy on the expiry of August 31, 1969. As the defendant failed to vacate the shop, the plaintiff instituted a suit on September 5, 1969 for Rs, 300/- as arrears of rent and ejectment against the defendant in the court of Munsif, Sriganganagar. He also claimed pendente lite and future interest. The suit was contested by the defendant on various grounds. It was, inter alia, pleaded by him that he has been carrying on whole-sale business in the shop and has been using it as a Godown and that the shop always remains open and his Muneem sits on it. It was also submitted that the shop was not kept locked. It was pleaded that right from the very inception of taking the shop on rent, he has been carrying on business in a Tehbazari shop and later on in shop No. 25; thai the plaintiff knew it fully well that he had another shop when the shop in suit was rented out to him and that thus, he is estopped from contending to the contrary. The learned Civil Judge framed issues arising out of the pleadings of the parties. Issues No. 2 and 4, are as under: " 2. Has the defendant not used the shop in suit without reasonable cause for the purpose for which the same was let out to him for a continuous period of six months preceding the date of suit? 4. As per allegations of defendant's written statement in para 8 and 9 is the plaintiff estopped?" The plaintiff examined P. W. 1 Gulab Singh, P. W. 2 Kishanlal, P. W. 3 Avtar-Singh and P. W. 4 Prabhu Dayal. The defendant examined himself as D. W. 1, D. W. 2 Babulal and D. W. 3 Pukhram. The learned Civil Judge recorded the following findings: (1) That the defendant has acquired another suitable shop but he cannot be evicted from the shop in suit under section 13 (1) (i) of the Act; (2) That the defendant has not used the shop in suit without reasonable cause for the purpose for which, the same was let out to him for a continuous period of more than six months preceding the date of the suit; and (3) That notice in suit complied with all the requirements of S. 106 of the Transfer of Property Act, and, therefore, it is valid. In view of the findings recorded by the learned Civil Judge, the plaintiff's suit for possession of the shop by ejectment therefrom and for Rs. 300/-as arrears of rent was decreed against the defendant with costs and pendente lite and future rent @ Rs. 60/- per month till the date he (defendant) vacates the shop. The defendant was allowed two months' time to vacate the shop. Feeling aggrieved, the defendant went in appeal and the learned Additional District Judge, by his judgment dated April 5, 1973, dismissed the appeal. Before the learned Additional District Judge finding on issue No. 2, which included the finding on issue No. 4, was assailed The learned Additional District Judge, after taking into consideration the relevant portion of the plaint and the evidence bearing on issue No. 2, recorded the following findings: (1) that the plaintiff has proved that the shop was given to the defendant for business and that he has not used the shop for more than six months without any reasonable cause and, thus, the ground given in section 13 (1) (i) is established; and (2) that mere acceptance of rent does not amount to acquiescence and the plaintiff is not estopped from taking this as ground for ejectment.
(3.) I have heard Mr. H. C. Jain, learned counsel for the appellant and Mr. Rajendra Mehta for the respondent. Appearing for the appellant, Mr. Jain raised the following contentions: (1) that ingredients under section 13 (1) (j) of the Act for ejecting the appellant from the shop did not exist in this case and that closing of the shop in the circumstances, of this case, at any rate, will not amount to non-user within the meaning of the aforesaid provision of the Act. (2) that the evidence on which the learned Additional District Judge has recorded the finding that shop in suit has not been used by the defendant for more than six months without any reasonable cause, is not sufficient, is for reaching the conclusion to which be did, for, closure of the shop is not material for holding that it is non-user under section 13 (1) (j ). (3) that in the first instance, the burden was on the plaintiff to show that the defendant has not used the shop without reasonable cause for the purpose, for which it was let out for a continuous period of six months immediately preceding the date of the suit, which, he has failed to discharge and in the alternative if the defendant is to prove that he had not used the shop without reasonable cause, the non-framing of issue is this regard has materially prejudiced the defendant. Mr. Rajendra Mehta strenuously opposed the above contentions and submitted: (1) that the foundation for evicting the defendant under section 13 (l) (j) of the Act were laid down in paras 3 and 5 of the plaint and that even if paras 3 and 5 are laconic, the claim of the plaintiff to eject the defendant under section 13 (1) (j) of the Act should not be defeated on account of the defect in them. (2) that the concurrent finding regarding non-user of the shop by the defendant being based on appreciation of the evidence, is not open to challenge in second appeal under section 100, C. P. C. being one of fact; (3) that all the conditions contemplated under section 13 (1) (j) of the Act are satisfied and, therefore, the decree for ejectment passed by the learned Civil Judge and confirmed on appeal by the learned Additional District Judge does not call for any interference by this Court; and (4) that so far as the point that the defendant has not used the shop without reasonable cause is concerned, this question does not arise in view of the fact that the case of the defendant is that he has been carrying on the business in the shop and using it as a Godown. In the alternative it was urged that so far as proving of reasonable cause is concerned, the facts relating thereto are within the special knowledge of the defendant for proving that he has not used the shop without reasonable cause. I have bestowed my most anxious and thoughtful consideration to the rival contentions of the learned counsel for the parties. ;