- (1.) THE appellant-plaintiff (landlord) Narsingh Prasad S/o Chand Ram Maniyar has filed the present second appeal on 31.01.1998 against the defendant-tenant, Ram Prasad S/o Ram Narayan Khatik, in this Court under Section 100 of the Code of Civil Procedure, 1908, being aggrieved by the impugned judgment and decree dated 07.11.1997 of learned Additional District Judge, No.1, Bhilwara Camp- Shahpura in Civil Appeal No.6/94 (81/90)- Ram Prasad Vs. Narsingh Prasad reversing the judgment and eviction decree dated 20.09.1989 passed by learned Civil Judge, Shahpura in Civil Original Case No.102/84- Narsingh Prasad Vs. Ram Prasad decreeing the plaintiff's eviction suit in respect of suit shop, situated at Shahpura, District Bhilwara, which was initially let out to the defendant-tenant at monthly rent of Rs.60/- per month.
(2.) BRIEFLY stated, the facts of the case are that before filing the present eviction suit, the plaintiff earlier filed an eviction suit being Civil Suit No.57/79- Narsingh Prasad Vs. Ram Prasad on the ground of default in payment of rent for the period May, 1976 to March, 1979, under Section 13 (1) (a) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950 (for brevity, hereinafter referred to as 'Act of 1950'), which suit came to be disposed of without any eviction decree on 05.02.1983 since the defendant-tenant upon determination of provisional rent u/s 13 (3) of the Act of 1950 as per time limit given u/s 13 (4) of the Act of 1950 deposited the said defaulted amount of rent for the period specified in the suit. However, upon second default having been committed by the defendant-tenant for the period 01.01.1984 to 31.07.1984 for seven months @ Rs.60/-, the appellant-plaintiff-landlord, Narsingh Prasad filed the present suit being Civil Suit No.102/84- Narsingh Prasad Vs. Ram Prasad again u/s 13 (1) (a) of the Act of 1950. The learned trial court after framing the relevant issues and taking the evidence of both the parties including the documents relating to earlier default and deposit of rent in pursuance of court's directions u/s 13 (4) of the Act of 1950, decreed the suit for eviction vide its judgment and decree dated 20.09.1989. The defendant-tenant, Ram Prasad being aggrieved by the judgment and eviction decree of learned trial court, preferred first appeal before the learned Additional District Judge No.1, Bhilwara Camp- Shahpura, who allowed the defendant-tenant's appeal by the impugned judgment and decree dated 07.11.1997, inter-alia, holding that since for the previous default, the benefit under Section 13 (4)/ 13 (6) of the Act of 1950 was not specifically given to the defendant- tenant, as he deposited the rent as per directions of the court under Section 13 (3) of the Act, the present default for the period 01.01.1984 to 31.07.1984 could not be treated as second default resulting into eviction decree, as the benefit of Section 13 (6) of the Act for such first default, deserves to be now given to the defendant- tenant. The learned lower appellate court of Additional District Judge No.1, Bhilwara in the impugned judgment dated 07.11.1997 also held that the learned trial court below in the present suit No.102/84 could not go beyond the terms of the previous judgment and decree of learned trial court dated 05.02.1983 into the evidence and record and the facts obtaining at the time of first suit; and since in the judgment and decree dated 05.02.1983 disposing of the first suit being Civil Suit No.57/79- Narsingh Prasad Vs. Ram Prasad, no such benefit u/s 13 (4)/ 13 (6) of the Act of 1950 was given in the present case for such default for subsequent period on 01.01.1984 to 31.07.1984, the tenant was entitled to such benefit under Section 13 (6) of the Act and thus the eviction decree of trial court came to be reversed by the first appellate court. While admitting the present second appeal, a coordinate bench of this Court had framed the following substantial questions of law for consideration by this Court on 28.11.1998, which reads as under: 1. Whether the first appellate court was right in holding the respondent to be first defaulter because there was no finding recorded by the trial court in its judgment though the tenant had been given benefit of first default by the trial court? 2. Whether the respondent having been declared as first defaulter in the previous suit was entitled to claim the benefit of Section 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act because there was no finding regarding default in previous suit?
(3.) MR . Manish Shishodia, learned counsel for the appellant- plaintiff-landlord urged that though the learned lower appellate court below in the impugned judgment and decree has referred to several judgments cited at the Bar, including the judgment of this Court in the case of Sobhraj Vs. Bhanwar Lal reported in 1974 RLW 251, which is duly referred in para 10 of the impugned judgment, however, the learned lower appellate court below, without discussing the facts and law laid down by this Court in the case of Sobhraj (supra) blindly on his own opinion, held that the benefit of first default was not given to the tenant for the alleged default in payment of rent for the period May, 1976 to March, 1979 in the judgment and decree dated 05.02.1983 at the time of disposal of first suit No.57/79 and consequently, the second suit could not be decreed on the ground of second default in payment of rent by the tenant. He further submitted that this Court recently in the case of Ranchod Mal & Anr. Vs. Govind Prasad & Ors. (SBCSA No.207/1999, decided on 29.08.2012) has also laid down that on the commitment of second default in payment of rent, the tenant cannot escape to the eviction decree, even if in the first round of litigation, no specific declaration of giving benefit under Section 13 (6) of the Act of 1950 was given by the courts below. On the other hand, Mr. Ravi Bhansali, learned counsel appearing on behalf of respondent-defendant-tenant supported the impugned judgment and decree of the first appellate court below and urged that in the absence of any specific benefit given under Section 13 (6) of the Act of 1950 in the first round of litigation, the tenant deserves to be given benefit of first default and the learned lower appellate court was justified in doing so. He, therefore, submitted that the present second of the plaintiff-landlord deserves to be dismissed. Having heard learned counsels for the parties and upon careful perusal of the reasons assigned in the judgments and decrees of the courts below and record of the case, this Court is of the opinion that the present second appeal of the appellant-plaintiff- landlord deserves to be allowed and the substantial questions of law, framed above, deserve to be answered in favour of appellant-plaintiff and against the defendant-tenant. ;