- (1.) BRIEF facts giving rise to this first appeal are that the respondent-plaintiff filed a suit on 21.9.1993 for eviction from the suit shop on the grounds of default in payment of rent, reasonable and bonafide necessity; sub-letting and nuisance with the averments that the shop measuring 15'x 20' ft situated on Moti Lalo Atal Road, Jaipur was let out to the appellant-defendant on monthly rent of Rs. 500/- on certain terms and conditions mentioned in para 2 of the plaint. The tenancy was oral. The defendant did not pay rent from the month of May, 1992. The plaintiff requires the suit shop for his own profession. The plaintiff has no residential house of his own at Jaipur. He wants to construct residential house upon the details of other grounds of eviction, he prayed for decree of eviction.
(2.) THE defendant in his written statement pleaded that the suit shop was let out to his father by plaintiff's father. Denying all the grounds of eviction, it was pleaded that rent upto September, 1990 was paid to Mr. C.N. Sharma, father of the plaintiff. THEreafter, he was informed vide letter dated 31.10.1991 that rent from October, 1990 may be paid to the plaintiff. Hence he paid the rent to the plaintiff but the plaintiff declined to accept the rent. Rejoinder was submitted by the plaintiff. Amended pleadings were also filed by the parties from time to time. On the basis of the pleadings of the parties the trial court framed ten issues. After recording evidence of the parties, it was held vide judgment dated 25.10.2000 that landlord required the suit shop reasonably and bonafide, and that the comparative hardship would be caused to the landlord, if the decree of eviction is not passed. Issues No. 3 with regard to partial eviction and No. 6 with regard to default in payment of rent were also decided in favour of the landlord. Issues No. 4, 5 and 10 relating to subletting, nuisance and inconsistent use of the shop for the purpose it was let out were decided against the plaintiff. In conclusion, the trial court decreed the suit of the landlord for eviction, hence this appeal. I have heard learned counsel for the parties. Learned senior counsel Mr. B. Dutt appearing for the appellant-tenant raised three points. first point is that the suit for eviction was not maintainable, the second and third points are that issues with regard to comparative hardship and partial eviction were wrongly decided by the trial court in cursory manner without considering all the evidence. Attention in this regard was drawn to the application moved on behalf of the appellant-tenant on 31.5.2002. Section 14(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) reads as under:- 14(3) Restriction on Eviction: Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub- section (1) of section 13 before the expiry of five years from the date the premises were let out to the tenant.
(3.) ACCORDING to learned senior counsel, the suit shop was let out for business purposes and according to the case of the plaintiff-landlord the original landlord was Sh. C.N. Sharma father of the plaintiff who vide letter Ex.10 dated 30.10.1991 informed the appellant-tenant to pay rent to the plaintiff from 1.10.1990 and thus the plaintiff became the new landlord and fresh terms and conditions were agreed between them as mentioned in para 2 of the plaint and thus the plaintiff had no right to file a suit for eviction on the grounds set forth in clause (h) of sub-section (1) of Section 13 of the Act before the expiry of five years from the date the premises were let out the tenant. reliance is placed upon. T.K. Lathika vs. Seth Karsandas Jamnadas (1), Smt. Menoka Rani Pal vs. Smt. Maya Rani Karmakar (2), Govind Narain vs. Mohan Singh (3), Ram Saran Sharma vs. Kamala Acharya (4), A. Ranganatham Chetti and Others vs. M. Ethirajulu Nayudu (5), Martin & Harris Limited vs. Vith Additional Distt. Judge & Ors. (6), Ram Narayan Sharma vs. Shakuntala Gaur, (7), Sardar Singh vs. Prakash Singh (8). Per contra, learned counsel for the plaintiff-landlord contended that initially Sh. Thanwar Das father of the appellant- tenant was the tenant in the year 1979/1980. Sh. Thanwar Das expired on 25.10.1986 and thereafter the appellant-tenant stated paying the rent as tenant to Sh. C.N. Sharma the original landlord and thereafter to the plaintiff on receiving information as such vide letter Ex.10 dated 30.10.1991 and monthly rent of Rs. 500 was never enhanced and no rent note was executed and terms and conditions of the tenancy were not altered and thus no new tenancy came into existence, hence Section 14 (3) of the Act is not attracted. It was next submitted that the suit for eviction was instituted in September, 1993 and no such objection was taken by the appellant-tenant in written statement, during trial and even in the memo of appeal and as such the appellant- tenant waived this right if available to him. He placed reliance upon 1. Dhirendra Nath Gorai 2. Subal Chandra Nath Saha And others vs. Sudhir Chandra Ghosh and Others (9), SK. Sattar SK. Mohd. Choudhari vs. Gundappa Amabadas Bukate (10), V.N. Sarin vs. Ajit Kumar Poplai and another (11) and also relied upon Martin & Harris Limited's case (supra). In T.K. Lathika's case (supra). In T.K. Lathika's case (supra) the original landlord gifted the tenanted premises to his daughter, the transferee landlord. Proviso 3 to Section 11 (3) of Kerala Buildings (Lease and Rent Control) Act provided that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. The daughter without waiting for the moratorium period of one year from the date of gift to expire filed eviction petition. Having found two differences in the terms of the old and fresh lease that (i) name of landlord was changed from father to daughter and (ii) rent payable was increased from Rs. 65 per month to Rs. 150 per month. It was held that moratorium period would apply from the date of fresh lease deed. This judgment is no instrument of transfer of the suit shop by the original landlord in the name of the plaintiff. A perusal of the letter Ex. 10 dated 31.10.1991 goes to show that Sh. C.N. Sharma, original landlord (HUF), informed the tenant to pay the rent to his son Sh. Manoj Kumar Sharma, the plaintiff, from 1.10.1990 as on account of a family settlement on 27.2.1990, the suit shop had fallen to his share. In para 6 of the written statement, it was admitted by the appellant-tenant that the original landlord Sh. C.N. Sharma did not receive the rent on account of his family reasons and he was informed by pay rent vide this letter to the plaintiff. Ex. 55 is memorandum of family settlement and Ex. 56 is the registered memorandum of family settlement cum partition deed. On perusal of these documents, it is evident that the suit shop was part of the entire properties of HUF and this shop came to the share of the plaintiff on account of family partition and as such it does not amount to any transfer of the property as defined under Section 5 of the Transfer of Property Act, 1882. Such plea was taken in Sk. Mohd. Choudhari and V.N. Sarin's case (both supra). In V.N. Sarin's case (supra) while dealing with the similar provisions contained in Section 14(6) of Delhi Rent Control Act, the Hon'ble Supreme Court held that the process of partition, therefore, involves the transfer of enjoyment of the properties into an enjoyment in severalty by them of the respective properties allotted to their shares. Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. Thus, it cannot be said that the suit shop has been acquired by the plaintiff by transfer and so Section 14(3) of the Act cannot be invoked by the appellant. On the same reasonings as discussed hereinabove, the judgment delivered in Smt. Menoka Rani Pal's case (supra) is also not applicable because the transferee landlady acquired the title of the suit premises by purchase and thus eviction on the ground of reasonable requirement was not allowed in view of the West Bangal Premises Tenancy Act. In Govind Narain's case (supra), the terms of the tenancy were changed and new tenancy agreement was entered into or a new lease was executed by the tenant and thus the existing tenancy was deemed to have been surrendered and the fact that tenant continued to remain in possession will be of no consequence and Section 14 (3) of the Act would apply meaning thereby the premises will be deemed to have been let out to the tenant from the date of commencement of the new tenancy and not from the date of original tenancy. In the instant case, the suit shop was let out to father of the appellant much before 25.10.1986. On the death of appellant's father on 25.10.1986, the appellant continued to pay the rent to the original landlord and continued to pay the rent at the same rate of Rs. 500 per month to the plaintiff in pursuance of letter Ex.10 dated 31.10.1991. No rent note was executed, rent was not enhanced and not terms and conditions of the tenancy were changed, hence no new tenancy came into existence. Similarly the judgment of this Court delivered in Ram Saran Sharma's case (supra) would also not apply as eviction suit was filed by the new landlord who become absolute owner of the suit property by virtue of valid gift deed. The decision of Privy Council in. A. Ranganatham Chetti and Others's case (supra) is also not applicable as though the physical possession was continuous from 1912 onwards, the possession from 1.10.1922 was attributable to a new tenancy. But the instant case is not of a new tenancy. But the instant case is not of a new tenancy. In Martin & Harris Limited's case (supra) the respondent No. 3 had purchased the premises on 30.6.1985 and issued a notice to the tenant on 20.9.1985 but filed application for eviction in January, 1986 and the case was taken up for hearing after there years of purchase. The point for consideration was whether the landlord's application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Leeting, Rent and Eviction) Act was not maintainable in view of the proviso to the said section as it was filed before the expiry of there years from the date of purchase of the suit premises by the landlord. It was held that the proviso to Section 21(1) bars entertainment of the application, therefore, the stage at which the Court has to consider whether grounds mentioned in clause (a) are made out or not will be reached when the Court takes up the application for consideration on merits. In the instant case, Section 14 (3) of the Act provides that no suit for eviction on the ground set forth in clause (h) of sub-section (1) of Section 13 shall lie before the expiry of five years. But as stated hereinabove in Marthin's case (supra) the landlord became owner of the suit premises by purchases, thus on the basis of this judgment also, the contention of learned senior counsel for the appellant-tenant is not acceptable. On the basis of the similar reasoning the judgment delivered in Ram Narayan Sharma's case (supra) is also not applicable as it was also a case of purchaser landlord. Now another submission made by learned counsel for the plaintiff-landlord that appellant-tenant waived his right even if available to him is taken up. It is not disputed that no such objection was taken in the written statement, during the trial and even in the memo of appeal by the appellant-tenant. According to learned senior counsel for the appellant-tenant, Section 14(3) of the Act puts a complete embargo on institution of the suit for eviction on the ground of personal requirement, such question of law can be raised at any stage. In Sardar Singh's case (supra), this Court held that objection under Section 14(3) of the Act can be allowed to be raised in second appeal, despite that such objection was not pressed before first Appellate Court. There is important distinction between the facts of two cases as in the instant case, no such objection was raised even upto the filing of this appeal in this Court while in Sardar Singh's case (supra) such objection was taken in the written statement. Assuming that such objection can be raised in this appeal, the point is whether the appellant-tenant waived this right. Learned senior counsel for the appellant-tenant submitted that since the provisions of Section 14(3) of the Act create a complete restriction on filing the suit for eviction on the ground of personal requirement before the expiry of five years, no such waiver can be pleaded. On the other hand learned counsel for the plaintiff-landlord contended that such a right can be waived. In Dhirendra Nath Gorai's case (supra) the judgment debtor who received the notice of the proclamation of sale, did not attend at the drawing up of the proclamation or did not object to the non-compliance with Section 35 of the Bengal Money Lenders Act which provide that the Court should specify in the sale proclamation the property to be sold. It was held that non-compliance with Section 35 in specifying the property to be sold is a defect in the proclamation within the meaning of the second proviso to Order 21 Rule 90 C.P.C. and such mandatory provision can be waived only if it is not conceived in the public interest but in the interest of the party that waives it. In Martin & Harris Limited's case (supra), it was held that provision of six months notice prior to the filing of application for eviction was mandatory and thus application was premature, but the tenant had later given a go-by to this contention for reasons best known to himself and so he had waived the right of prohibition imposed by statute. It was also held that this prohibition was for protection to the tenant and waiving of such protection by the tenant did not contravene the law. The prohibition was not in public benefit but for his private benefit so he could waive it. In the instant case, the provision contained in Section1 4 (3) of the Act are for protection of the tenant and the tenant-appellant in the instant case, did not take any objection in this regard till final submissions made in this appeal. Consequently, it must be held that the provision for five years period before filing the suit, though is mandatory and confers protection to the tenant concerned, it can be waived by him. In the facts of the present case there is no escape from the conclusion that the appellant- tenant did not think it fit to pursue that point and on the contrary joined issues on merits and having lost therein and got and adverse decision did not think it fit even to challenge the decision on that ground even while filing an appeal. Thus, it must be held that the appellant-tenant had waived this right available to him under Section 14(3) of the Act. ;