BALIA, J. - (1.) THIS is defendant's second appeal against the decree of eviction passed by the Addl. District Judge, Churu on 29. 5. 93 on the ground that let out a premises have not been used for the purpose for which they were let out for continuous period of six months immediately preceding the date of the suit, the ground set fourth in section 13 (l) (j) of the Rajasthan (Premises of Control of Rent and Eviction) Act, 1950.
(2.) THE suit was dismissed by the trial court by holding that plaintiff has failed to prove that the defendant is not using the suit premises for a period of 6 months immediately before filing of the suit. This finding on issue No. 1 was reversed by the lower appellate court in its judgment dt. 29. 5. 93 and suit was decreed on that basis. Learned counsel for the appellant in the first place contended that no foundation for seeking eviction on the ground set forth under section 13 (l) (j) was laid in the pleadings of the plaintiff inasmuch as 'absence of reasonable cause for not using the suit premises by the defendant was not pleaded. He contends that unless ingredients of the ground of eviction stated in section 15 (1) of the Act have been pleaded, the question at all ought not to have been enquired into. He placed reliance on C. P. Massey Vs. Hirachand (1 ). Learned counsel for the respondent contended that plea of want of reasonable cause for non-user of the shop by the defendant is implicit in the pleading of the plaintiff which reads as under : ***** He further contended that it is the non-user of premises for six months by the. tenant immediately preceding the suit is primarily the ground of eviction under section 13 (l) (j ). The existence of reasonable cause for such non-user furnishes the ground of defence against eviction, where the tenant is found to be not using the suit premises of the prescribed period immediately before filing the suit. He, therefore, contends that when in his written statement, defendants has denied the factum of non-user and positively pleaded that he is using the suit shop for the purpose for which the same has been let out to him, want of specific plea or any evidence about absence of reasonable cause has no effect on the substance of the case. He placed reliance on a decision of this Court in Santlal Vs. Harbans Singh (2 ). Learned counsel for the appellant in this connection argued that decision in Santlal's case has not taken into consideration the earlier decision of the coordinate Bench in C. P. Massey's case. Therefore, the question requires reconsideration.
(3.) HAVING bestowed my anxious consideration on the contention and having perused the two decisions, I am of the opinion that learned counsel for the appellant is not right in his submission. In C. P. Massey's case the question about nature of pleadings required for the case falling under section 13 (1)0 was not directly raised and decided. From the judgment it appears that plaintiff has sought eviction on the ground of default, of non-user of suit premises and acquisition of suitable alternative accommodation by the defendant. The suit was decreed on the ground of default and acquisition of alternative accommodation as is apparent from the ground on which decree was founded mentioned in para 4 of the report. In the first appellate court the decree was not challenged on the ground that no ground existed under section 13 (1)0. Apparently inspite of the finding that suit premises has not been used for a period of 6 months, the suit was not decreed on that ground because the defendant had reasonable cause for non-user of the suit premises. Before the first appellate court plaintiff had given up the ground for eviction on account of availability of suitable alternative accommodation and the decree was affirmed only on the ground of default by the appellate court. The ground of default failed in the second appeal because section 13 A was inserted by Amendment Act, 1976 and the defendant appellant became entitled to protection from eviction under those provisions. Plaintiff respondent wanted to take recourse of finding in his favour that defendant did not use the suit premises for more than 6 months preceding the date of suit. The court opined that under clause 13 (1)0 a defendant is liable to be evicted only in the premises is not used without reasonable cause. It further came to the conclusion that plaintiffs own statement shows that defendant did not use the suit premises because his wife was residing elsewhere due to her service exigencies. The statement on the face of it showed that there was reasonable cause for the tenant not to occupy the suit premises during a period of 6 months preceding the date of the suit. Thus having found that on evidence, ground mentioned in section 13 (l) (j) is not made out. The court further observed that the plaintiff did not i even mention in the plaint that the plaintiff did not use the suit premises without reasonable cause. This absence of pleading about absence of reasonable cause was clearly used as corroboration for the conclusion at which the court has arrived on the basis of evidence about existence of reasonable cause. Therefore, the decision cannot be treated as an authority for the proposition that unless the worlds" without reasonable cause' have been pleaded the pleadings are not complete. The observation made in C. P. Massey's case relied on by learned counsel for the appellant is only obiter dicta and not the ratio of the decision. In Santlal's case this question directly arose before this Court. The Court answers the question in negative. It observed as under : " The other point that remains to be considered in regard to S. 13 (l) (j) is that the plaintiff had not alleged that the premises have not been used without reasonable cause. It is correct that the plaintiff has not stated in the plaint that the defendant has not used the shop without reasonable cause. It is also true that the plaintiff has not led any evidence regarding 'without reasonable cause'. The question is whether the plaintiff is required to plead and prove the fact 'without reasonable cause'. Having regard to the defence taken in para 3 of the written statement, filed by the defendants, I am definitely of the opinion that it was neither necessary for the plaintiff to have pleaded about 'without reasonable cause' nor was it necessary for him to lead evidence in this regard. The defendant did not come even with an alternative plea to the effect that the shop remained closed or was not used without reasonable cause. In these circumstances, there was no occasion for any of the parties to lead evidence in regard to the point of 'without reasonable cause'. " ;