- (1.) THIS is a judgment-debtor's execution second appeal against the order dated 9. 1. 1976 passed by the District Judge, Bikaner, whereby he dismissed the appellant's first appeal against the order dated 22. 10. 1975. of the Munsif, Bikaner, dismissing the appellant's objections against execution of the decree.
(2.) FOR disposal of this appeal it would be proper to recall a few facts. The decree-holder Moda Ram instituted a suit for arrears of rent and ejectment. The ejectment was sought on the ground of default, reasonable and bonafide need and nuisance The suit was resisted by the defendant-judgment-debtor. Initially issue No. 1 was framed regarding reasonable and bonafide need and issue No. 2 related to nuisance. Issue No. 3 related to termination of tenancy by a valid notice. Issue regarding default was subsequently added as issue No. 5. After trial, the plaintiff's suit was dismissed on 19. 1. 1972. Issues No. 1 and 2 were decided against the plaintiff. Issue No. 5 relating to default was decided in favour of the plaintiff. But finding on issue No. 3 was recorded against the plaintiff and it was held that the plaintiff has failed to prove that notice terminating the tenancy was served on the defendant. In view of the finding on issue No. 3 relating to notice the plaintiff's suit was dismissed. The plaintiff went in appeal and in appeal, after hearing the arguments and at the stage when the dictation of judgments was in progress, the parties filed a compromise. The learned first appellate court verified the compromise and examined the legal position, proceeded to act on the compromise and passed a decree for eviction on 17. 8. 1972 and it was directed that the defendant shall vacate the house on 30. 9. 1974 and it further directed the defendant to continue to pay the rent month by month and if he failed to pay the rent of any two months, the plaintiff shall be entitled to get the vacant possession of the suit house even before 30. 9. 1974 and it was further directed that in case the defendant fails to vacate the suit house on 30. 9. 1974 or on any other date prior to this date on which the defendant makes any two defaults in payment of rent, the plaintiff shall be entitled to get possession over the suit house through court by filing execution application. The plaintiff decree-holder submitted an application for execution on 10. 10. 1974 when the judgment-debtor failed to comply with the term of the decree to vacate the house on 30. 9. 1974. In that application for execution on 18. 1. 1975 the judgment-dobtor raised the following objections specifically: (1) that the decree was passed on the basis of the terms of compromise without being satisfied, as to existence of the grounds of eviction, as such, the decree for eviction is a nullity and without jurisdiction. (2) The parties entered into a fresh tenancy by compromise in view of the fact that previously the rent was Rs. 25/- p. m. , but under the compromise agreement the rent was enhanced to Rs. 40/- p. m. and the defendant is paying Rs. 40/- p. m. to the defendant. In view of the fresh agreement between the parties, the decree cannot be executed and the same is without jurisdiction. The decree-holder submitted his reply to the objections traversing the objections raised by the judgment-debtor and prayed for rejection of the objections. The learned executing court, after hearing the parties, dismissed the objections by its order dated 22. 101975, against which the judgment-debtor went in appeal, but the appeal also met the same fate. Hence, this second appeal. I have heard Shri R. R. Nagori, learned counsel for the judgment-debtor appellant and Shri S. C. Bhandari, learned counsel for the decree-holder-respondent. Mr. Nagori, learned counsel for the judgment-debtor-appellant, argued and raised number of contentions, out of them his principal contention is that the plaintiff's suit was not based on section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act" ). The averments in the plaint did not satisfy the requirements of sec. 13 (1) (a) and, as such, it cannot be said that the plaintiff sought ejectment of the defendant on the ground of default in payment of rent. He pointed out that the plaintiff simply stated that the defendant had paid rent upto 30. 4. 1968 and seven months rent upto 30. 11. 1968 amounting to Rs. 175/-is due. This averment is made by him in para 3 of the plaint and para 4 mentions the ground on which eviction is sought and in para 4 (kh) what the plaintiff stated is that the defendant has allowed seven months' rent to fall in arrear, so he is a defaulter. These averments were insufficient to make out a ground for eviction as contemplated under section 13 (1) (a) of the Act. According to Shri Nagori, what was essential to plead, was that the tenant has neither paid nor tendered the amount of rent due from him for six months or more than that. Shri Nagori's emphasis is that it ought to have been pleaded by the plaintiff that the tenant not only not paid the amount of rent, but even did not tender the amount of rent. In the absence of such a plea, the suit could not said to be based on the ground mentioned in 13 (l) (a ). He pointed out that the trial court did not decide issues No. 1 and 2 in favour of the plaintiff and there was no merit so far as these two grounds are concerned. These two grounds were not even canvassed before the appellate court, so the basis of the decree appears to be the ground of default and when the ground of default was not pleaded as provided in section 13 (l) (a), then the court had no jurisdiction to pass the decree. In support of his contention reliance was placed by Shri Nagori on a decision of this Court in Rajendra Kumar vs. Jamna Das (l ). He also referred to a decision of this Court in Saligram vs. Narottam Lal (2 ).
(3.) SHRI S. C. Bhandari, learned counsel for the decree-holder-respondent, , on the other hand, submitted that the averments in paras 3 and 4 (kh) of the plaint clearly make out the case under clause (a) of sub-section (1) of Sec. 13 of the Act. The defendant also took it to be a case under clause (a) of Sec. 13 (1) as would be clear from the averments made in the written statement and it was in view of the pleadings of the parties that issue No. 5 was struck to the effect that the defendant is a defaulter and the parties went to trial on this issue. Mr. Bhandari submitted that there had been no such case and such a plea was not raised in the suit. Such a plea was not raised even by the judgment-debtor in the objections filed by him. The appellant should not be permitted to raise this objection for the first time in this appeal. Besides that, Mr. Bhandari pointed out that the decision of this Court in Rajendra Kumar vs. Jamna Das (supra) has no application to the facts of the present case in view of the variance in pleadings. According to him, in that case, the plaintiff's averment was simply this that the defendant has paid rent upto a certain date, namely 31. 12. 1967 and thereafter has not paid rent despite repeated demands. There was no pleading to the effect that the defendant was a defaulter and that the defendant allowed the rent to fall in arrears. He also pointed out that the defence was that the defendant is not a defaulter in view of the fact that the plaintiff did not deliberately accept rent after April 1968. It was offered to him many times, but the plaintiff refused to accept the same and thereafter it was sent by money order and even then the plaintiff did not accept the amount of rent. He referred to the finding on issue No. 5 recorded by the trial court, wherein it is stated that the defendant has failed to prove that the amount of rent was ever sent by money order as no money order receipt has been produced. He urged that the plea of non-offer by the defendant is explicit in para 4 (kh) or in any case implicit and the parties went to trial on that basis that there is a plea of non-offer of amount of rent by the defendant. I have carefully considered the submissions advanced by Shri Nagori. In the facts and circumstances, this contention had no merit whatsoever Firstly, the appellant cannot be allowed to agitate this question for the first time in this appeal. No such objection was raised by the appellant in the objections submitted by him before the executing court. The objection was to the effect that the suit for eviction was decreed by the court without satisfying the existence of ground of eviction, so the decree is nullity. An objection to this effect was not raised that there was want of pleading on the part of the plaintiff satisfying the requirements of clause (a) of sub-section (1) of Sec. 13 of the Act. Thus, on this ground alone the contention raised by Shri Nagori deserves to be rejected. Even if the contention is examined on merits, I do not find any substance in it. It is true that in para 4 (kh) the ground is not stated in the very words as found mentioned in clause (a) of sub-sec. (1) of Sec. 13, but it is not essential to use the same phraseology. It may be stated that the pleading has to be construed in its essence substance and spirit. In para 4 (kh) the plaintiff clearly averred that the defendant has allowed the rent of seven months to fall in arrears, so he is a defaulter (Pratiwadi ne Arsa Sat Mah ka kiraya bhi chada liya hai. isliye wah defaulter bhi hai ). In reply to this the defendant averred that he is not a defaulter, because he had been continuously offering the rent to the plaintiff, but the plaintiff did not accept the rent deliberately with a view to make him a defaulter. He also stated in para 3 of the written statement that the plaintiff did not accept the rent after April 1968 deliberately. Many times rent was offered to him. but the plaintiff refused and so money order was sent, but he did not accept the same. Shri Nagori urged that the plaintiff did not make a statement in the light of clause (a) of sub-section (1) of Sec. 13 and there is no statement to this effect of the plaintiff that the rent was not offered to him. He did not so state only on the ground that he did not want to tell a lie, as there was a truth in the assertion of the defendant that the rent was in fact offered by the defendant to the plaintiff. The plaintiff stated that 6-7 months' rent was in arrears when the suit was filed by him. Such a statement of the plaintiff, in my opinion, would not improve the appellant's case. The trial court has dealt with this question and has considered the statements of both the parties. The defendant stated that he had been paying rent regularly and when the same is not accepted he had remitted the same by money order and the money order was refused. The trial court found the question of offer on the part of the defendant against him and stated, while recording the finding on issue No. 5, that the defendant had neither stated in his statement that he sent money orders in respect of the months for which the rent is said to be due, nor he filed money orders receipts, so the defendant has failed to prove that the money orders were ever sent. Of-course, it may be observed that it would have been better for the plaintiff to have clearly stated in the plaint not only that the rent was not paid by the defendant, but also that it was never offered to him. In my opinion, the use of the expression 'defaulter' implies non-payment of rent, as well as non-offer of rent. A tenant, who does not pay rent, is not only defaulter, but one who even does not offer the rent, is also a defaulter. But if it is found that he had been offering rent, then he cannot be designated as defaulter and it cannot be found that he is guilty of default, as there has been no- default on his part, because of his regular offering of rent. Thus, a tenant, who has been regularly offering rent, is not a defaulter, whereas the plaintiff has used the expression 'defaulter' which implies that the defendant had neither paid rent, nor offered rent to the plaintiff. This appears to be the accepted connotation of the expression 'default' or 'defaulter'. Besides that, it is also significant that the parties went to trial on the basis that there exists ground for eviction as contemplated under clause (a) of sub-section (1) of Sec. 13 and a finding has been recorded by the trial court on issue No. 5 on that basis. In Saligram vs. Narottam Lal (supra) what has been observed is that a suit is said to be based on a particular ground if the plaint contains an allegation that the ground subsists. This observation, in my opinion, applies to the present case and as considered above, there was a ground taken by the plaintiff in para 4 (kh) of the plaint. In Rajendra Kumar vs. Jamna Das (supra), cited by Shri Nagori, there was no such averment in the plaint, as there exists in the present case. The plaintiff categorically stated that the defendant is a defaulter. What was stated in plaint in that case was that the defendant had paid rent upto a certain period and thereafter had failed to make payment despite repeated demands and, on that basis it was found that the pleading was lacking with regard to the ground contained in clause (a) of sub-sec. (1) of Sec. 13 of the Act Further, in my opinion, that is the case where the objection was taken at a different stage and that, in my opinion, is very material and significant. In the present case the parties went to trial, argued the matter on this ground before the two courts and now it would be too late in the day to allow the judgment-debtor to raise this objection, more particularly, when such objection has not even been raised in the objections filed by the appellant before the executing court. Thus, the first contention advanced by Shri Nagori, has no merit and the same is rejected. ;