VINEET KOTHARI - (1.) THE defendant-tenant has filed the present second appeal before this Court under Section 100 of CPC on 10.12.1994 being aggrieved by the eviction decree dated 26.09.1994 granted by the learned first appellate court below of District Judge, Sirohi in Civil Appeal No.9/1990- Chhagan Raj S/o Bhanwar Lal Jain Vs. Bhagwati Prasad S/o Ganpant Lal Agarwal. The learned trial court dismissed the suit for eviction vide judgment and decree dated 20.12.1989 while dismissing the Civil Suit No.57/1989- Chhagan Raj Vs. Bhagwati Prasad but the first appellate court below had reversed the said decree and granted the eviction decree to the landlord and being aggrieved by the same, the present second appeal has been preferred by the defendant-tenant, who is now represented by his legal representatives after his death.
(2.) WHILE admitting the present second appeal, a coordinate bench of this Court vide the order dated 09.01.1995 has framed the following substantial question of law: - "Whether the court below was right and justified in passing a decree for ejectment under Section 13 (1) (i) under the Rajasthan Premises (Control of rent and Eviction) Act, 1950?" An interim stay order was also granted to the defendant subject to the condition of deposit of mesne profit of Rs.85/- before 15th of each month. The plaintiff came with a case before the learned trial court that premises in question, a residential house, which was given on rent to the defendant, Bhagwati Prasad way-back on 01.09.1968 for monthly rent of Rs.71/- per month, which was later on increased to Rs.85/- per month but the defendant failed to pay the rent from 08.07.1983 till the date of filing of the suit and thus Rs.255/- was due against the rent; and that the plaintiff required the suit property, which was situated outside the "Delwara Jain Temple" at Mount Abu for his own business needs; and that the defendant had constructed a residential house in the year 1975 of his own and two more residential houses about 2 years before the filing of the suit and, therefore, a decree of eviction deserves to be granted to the plaintiff- landlord. The learned trial court, however, dismissed the suit but the learned first appellate court below allowed the appeal of the plaintiff-landlord and granted eviction decree, against which the present appeal has been filed by the defendant-tenant. Mr. Manish Shishodia, learned counsel for the appellant-defendant-tenant urged that since the plaintiff had admitted in the plaint itself that the defendant was carrying on the business in the shop in the rented premises itself and thus being of commercial nature, the availability of the alternative accommodation by way of residence, which residence, was in fact owned by the defendant's wife, namely, Smt. Babli, being his second wife, after death of his first wife, could not furnish a ground of eviction under Section 13 (1) (i) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950 (for short, hereinafter referred to as 'Act of 1950'); and since the other grounds of bonafide need and default were not pressed by the plaintiff-landlord before the first appellate court, the learned lower appellate court below has erred in reversing the judgment and decree of the learned trial court and granting decree of eviction on the grounds of availability of alternative residential accommodation to the defendant u/s 13 (1) (i) of the Act of 1950. He, therefore, submitted that the substantial question of law framed above deserves to be answered in favour of defendant-tenant and the eviction suit deserves to be dismissed. On the other hand, Mr. Ravi Bhansali, learned counsel for the respondent-plaintiff-landlord vehemently urged that the premises in question was given only for residential purposes and in the rent note dated 01.09.1968 itself the word used is 'Makan' (Residence) and nowhere the word 'Dukan' (Shop) has been used in the rent-note executed by the defendant in favour of plaintiff on 01.09.1968; and even subsequently in the notice for eviction served by the Advocate, Sh. Jugraj Jain, (Ex.2), dated 29.07.1983, the word "Makan" (residential house) only has been used, of which eviction was sought on various grounds of bonafide need, default and alternative accommodation becoming available and, therefore, merely because the defendant has wrongly used some portion of the premises in question even for commercial purposes, that would not make section 13 (1) (i) of the Act of 1950 inapplicable to the facts of the present case and since from the evidence on record, it is clear that the premises in question was given for residential purposes only, therefore, the learned trial court was not justified in dismissing the suit u/s 13 (1) (i) of the Act of 1950 on the grounds established by the plaintiff, viz. that the defendant had suitable alternative residential accommodation in his possession and in fact he had three residential houses, which during the course of pendency of present second appeal has risen to 5 and one of the house is situated only at a distance of 100-150 feet away from the suit premises itself, in which the defendant or his legal representatives are now can reside or even carry on their business too; and therefore, the decree of eviction deserves to be upheld and the substantial question of law framed above, deserves to be answered against the defendant-tenant- appellant and in favour of plaintiff-respondent. I have heard the learned counsels for the parties at length and perused the record, judgments of the courts below and case laws cited at the bar.
(3.) SECTION 2 (v) of the Act of 1950, defines the word "Premises" as under: "(v). Premises means: - (a) any land not being used for agricultural purposes; and (b) any building or part of a building other than a farm building, let or intended to be let for use as a residence or for commercial use or for any other purpose, including - (i) the gardens, grounds, godowns, garages and out houses, if any, appurtenant to such building or part, (ii) any furniture supplied by the landlord for use in such building or part, (iii) any fittings, affixed to and amenities provided in, such building or part for the more beneficial enjoyment thereof, and (iv) any Land appurtenant to and let with any such building or part, but does not include a room or other accommodation in a hotel, dharamshala, inn, sarai, lodging house, boarding house or hotel." Section 13 of the Act of 1950, which provides for grounds for eviction to the extent of Clause (i), which is relevant for the purposes of deciding the controversy in hand is also reproduced herein below for ready reference: - "13. Eviction of tenants- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx (g) xxx (h) xxx (i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or The Apex Court dealing with similar provisions under the Delhi and Ajmer Rent Control Act, 1952 in the case of S. Kartar Singh Vs. Chamanlal & Ors. reported in 1969 (1) SCC 760, relied upon by the learned counsel, Mr. Maniash Shishodia, for the appellant-defendant, held that the original tenant was in occupation of the premises, which were used for a composite purpose, namely, residence and profession, therefore, there could be no eviction merely by acquisition of vacant possession of a residence by such tenant, and Section 14 (1) (h) (equivalent to Section 13 (1) (i) of the Act of 1950) can apply only where a tenant is in occupation of a premises which are only residential; then alone he would have to go, if he acquires or has a residential accommodation of his own. Distinguishing the previous judgment of the Supreme Court in the case of Dr. Gopal Dass Verma Vs. Dr. S.K. Bhardwaj & Anr. reported in (1962) 2 SCR 678 and English Law cited at the bar by Mr. S.C. Manchanda, Senior Advocate, the Hon'ble Apex Court observed that where the dominant intention to use the premises as a nursing home (Dr. Gopal Dass Verma's case) and the landlord claimed that tenant Labha Mal Arora was merely given permission or licence which was of a personal nature to have his office as well there, the Court held that the test of dominant intention was not applied in the case of Dr. Gopal Dass Verma's case and for the same reason, the English Law, cited at bar was of little avail to the landlord. The appeal of the landlord was accordingly dismissed. In the case of B.R. Mehta Vs. Atma Devi and Ors. reported in (1987) 4 SCC 183 again the Hon'ble Supreme Court held that ground that "tenant has ... built, acquired vacant possession of, or been allotted, a residence" under Section 14 (1) (h) of the Delhi Rent Control Act, 1958, would not be available, if the construction, acquisition or allotment of another residence to the tenant's wife is there and the tenant claimed that his wife was living separately in Government residence allotted to her and they were having strained relations and in such circumstances, the tenant cannot be evicted under the clause (h) of the Act. ;