GOYAL, J. - (1.) THIS is the second appeal by the legal representatives of the deceased-tenant Dr. Kedar Nath against the judgment and decree dated 28. 11. 2000 whereby learned Additional District Judge No. 3, Jaipur City, Jaipur confirmed the judgment and decree of eviction dated 9. 9. 1997 passed by Additional Civil Judge (Junior Division) No. 5, Jaipur City, Jaipur.
(2.) THE plaintiff Smt. Dhapu Kanwar (since deceased) filed a civil suit for arrears of rent and eviction on 20. 12. 1976 against the defendant-tenant Dr. Kedar Nath with the averments that the suit shop was let-out at monthly rent of Rs. 20/- on 31. 8. 1955. Rent-note was executed on the same day. Eviction was sought on the grounds of default in payment of rent from 1. 1. 1974 and reasonable and bonafide requirement of her widow daughter Santosh. Vide amended plaint filed on 10. 1. 1995, it was pleaded that now the suit shop is required for her son Moti Chand alias Nath Mal and grand son. One additional ground of eviction was taken that the defendant is a doctor and the suit shop was given for practice but on account of ill health, the defendant has stopped going to the shop and it often remains closed for about two and half years. The defendant in his written statement while admitting himself to be the tenant, denied all the grounds of eviction. On the basis of the pleadings, issues were framed. Evidence was recorded. Learned Additional Civil Judge (Junior Division) No. 5, Jaipur City, Jaipur vide judgment dated 9. 9. 1997 held that monthly rent agreed upon was Rs. 20/-; that the plaintiff failed to prove default in payment of rent; that the plaintiff further failed to prove her reasonable and bonafide requirement and comparative hardship; that the plaintiff has proved that the suit shop has not been used by the defendant-tenant without reasonable cause for a period of more than six months and thus passed a decree of eviction. The defendant as well as the plaintiff filed separate appeals. The plaintiff filed cross objections also in the appeal filed by the defendant. The first appeal by the plaintiff was filed against the decision of the Trial Court on issue No. 7, which relates to fixation of standard rent. The Trial Court held that since the defendant has produced no evidence, this issue is decided against the defendant and in favour of the plaintiff. Even though the Trial Court did not fix the standard rent at the rate of Rs. 50/- per month as claimed by the plaintiff. The plaintiff preferred cross objections with regard to decision of the Trial Court on issue Nos. 2 & 3 both relating to default in payment of rent from 1. 1. 1974 and issue Nos. 4 & 5 relating to reasonable and bonafide requirement and comparative hardship. Learned Additional District Judge No. 3 vide impugned judgment dated 28. 11. 2000 dismissed the appeal of the defendant-tenant along with cross objections of the plaintiff-landlord but allowed the appeal of the plaintiff and thus fixed Rs. 50/- per month as standard rent payable from the date of the institution of the suit. It is made clear that the plaintiff-landlord died during the pendency of the first appeal, hence her legal representatives were brought on record. In this second appeal, this Court framed following substantial questions of law on 18. 5. 2001:-
(3.) BOTH the questions co-relate, hence are taken up together. Before adverting to the rival submissions, it would be appropriate to reproduce the provisions of Section 13 (1) (j) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act ). 13 (1) (j) Eviction of tenants:-Notwithstanding anything contained in any law or contract, no Court shall pass any decree, 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 therefore to the full extent allowable by this Act, unless it is satisfied that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The present suit was filed in December, 1976 on two grounds namely default in payment of rent and reasonable and bonafide requirement. During the pendency of the suit an application under Order 6 Rule 17 C. P. C. was moved by the plaintiff with the averments that now the suit shop is required for plaintiff's son and grand son and the defendant has stopped going to the shop and the shop remains often closed for about 2 1/2 years and thus the defendant is not using the shop. The defendant in reply of this application denied the proposed amendments with a plea that the defendant is not the doctor and the shop was not taken on rent for practice, rather the defendant is carrying on his business along with his sons and the suit shop never remained closed. This application was allowed and vide amended plaint submitted on 10. 1. 1995 this new ground as provided under Section 13 (1) (j) of the Act was taken. Both the courts below decided this issue in favour of the plaintiff-landlord. Learned counsel for the appellants-tenants contended that there is no plea that the suit shop has not been used without reasonable cause for the purpose it was let out and the phrase `immediately preceding the date of the suit' means that this ground must exist immediately preceding the date of the institution of the suit which in the instant case is 20. 12. 1976 while the said ground was introduced by way of amendment in January, 1995 which was not permissible under Section 13 (1) (j) of the Act. Reliance has been placed upon Pooran Mal vs. Rahman (1), wherein it was held that in absence of any plea of the landlord and without there being any evidence on the record to the effect that non-user of the disputed premises was continuously for a period of six months immediately preceding the date of the suit, decree on this ground is clearly perverse. It was further observed that the words `immediately preceding' have to be read in conjunction with the words `the date of the suit' and if so read, it is clearly borne out that a tenant shall be liable to be evicted if premises have not been used for a continuous period of six months before the date of the suit. While taking similar view in Gauri Lal vs. Gujar Mal Through His Legal Representatives (2), it was observed that if the non-user does not relate to a period of continuous six months immediately preceding the date of the suit, the provisions of Section 13 (1) (j) of the Act cannot be pressed into service by the landlord. Therefore, as per learned counsel for the appellant, this ground of non-user cannot be taken by way of amendment subsequent to the filing of the suit as this ground must have been in existence prior to the institution of the suit itself. Per contra, learned counsel for the respondents-landlords contended that for the purpose of this ground of eviction, the suit shall be deemed to have been instituted on 10. 1. 1995 and in support of this contention he placed reliance upon Chandgi Ram vs. Babulal (3), wherein placing reliance upon the judgment of the Hon'ble Supreme Court in B. Banerjee vs. Anita Pan (4), it was held that a new ground for eviction on personal necessity arose during the pendency of the suit and such amendment, if made during the pendency of the suit incorporating the ground of bonafide necessity, shall not relate back to the date of filing of the suit but shall be treated from the date of filing of the amended plaint. In Sant Lal vs. Harbans Singh (5), it was held that in a suit for eviction filed under Section 13 (1) (j) of the Act, when the tenant takes the defence that the shop was taken for and is being used for whole sale business and godown, it was not necessary for the plaintiff to plead and prove that non-user was without reasonable cause. It was also held that finding as to closure and non-user of premises by tenant for more than six months is a finding of fact. ;