- (1.) THIS is an appeal by Kajodmal defendant, against whom a suit for ejectment and arrears of rent was filed by Baluram plaintiff respondent in the court of Civil Judge, Sikar.
(2.) THE plaintiff's case was that the defendant appellant had taken a shop belonging to the plaintiff on rent for three years at a monthly rental of Rs. 8/5/ -. A rent note was executed by the defendant on the 10th of December, 1944. THE plaintiff obtained a certificate under sec. 15 of the Rajasthan Premises (Control of Rent and Eviction) Act of 1950 (hereinafter to be referred to as the Rent and Eviction Control Act) as he required the shop for his personal use. It was also alleged that a notice had been served on the defendant. It was prayed that the defendant be ejected from the shop in dispute and a decree for arrears of rent for three years i. e. , from 10th of October, 1948 to 10th of December, 1951, be awarded against the defendant. The defendant admitted that the shop had been taken on rent for three years from the plaintiff and that the monthly rental was Rs. 8/5/ -. He however pleaded that no notice had been given to him and further pleaded that the plaintiff had no personal necessity for the shop in dispute As regards arrears of rent, it was pleaded that it was due only for a year and a half. The learned Civil Judge framed several issues but in this appeal I am concerned only with the issues Nos. 2 and 4 which are as follows : - " (2) Whether the plaintiff needs the shop for his own use ? (4) Whether notice for ejectment was not given to the defendant ?" The learned Judge of the first court recorded his finding on issue No. 2 in favour of the plaintiff and on issue No. 4 he held that it was a case of tenancy at will which could be determined by the landlord at any time by demanding possession and that a notice prescribed by sec. 106 of the Transfer of Property Act was not necessary in the case. Holding that the plaintiff had orally demanded possession of the shop and had also given a notice in writing to the defendant, the learned court held that the plaintiff was entitled to have the shop vacated. A decree both for ejectment and for arrears of rent was given to the plaintiff. The defendant went in appeal and the learned District Judge, Jhunjhunu, confirmed the decree of the first court. He did not go into the question whether the plaintiff needed the shop for his own use as his view was that it was not for the civil court to go into this finding and that the finding of the Rent Controller in this respect while granting a Certificate for ejectment was conclusive. A point was raised before him that as the tenancy was for three years and no registered lease had come into being as required by sec. 107 of the Transfer of Property Act, the tenancy should therefore be deemed from month to month and a notice under sec. 106 of the Transfer of Property Act was necessary. This objection was over-ruled on the ground that the defendant admitted the tenancy as well as its terms and the point was neither raised before the trial court nor in the grounds of appeal and it could not therefore be allowed to be raised far the first time in appeal. It was held that after the expiry of the term fixed by the lease the lessee continuing in possession will in the absence of an assent by the lessor only be a tenant by sufferance, and he could be sued in ejectment at any time without any previous notice or demand of possession. Against the decree of the appellate court the defendant Kajodmal has come in second appeal to this Court. There points were urged by Mr. D. M. Bhandari on behalf of the appellant. They are as follows: - (1) The tenancy being for three years it could be created only by a registered lease in accordance with the provisions of sec. 107 of the Transfer of Property Act and sec. 17 of the Registration Act. As no such lease came into being the defendant would be considered to be a tenant from month to month and therefore he could not be ejected without a notice under sec. 106 of the Transfer of Property Act. (2) Evan if the rent deed is taken to be a valid lease for three years the defendant was allowed to remain in possession for about five years after the ex-perty of the term of the lease and for some time after the expiry of the lease rent was realised from him. The tenancy therefore became in any case a month to month tenancy after the expiry of the lease. (3) According to the provisions of sec. 13 (l) (h) of the Rent and Eviction Control Act the lower appellate court ought to have gone into the question whether the premises were required reasonably bonafide by the landlord for the use or occupation of himself or his family. The opinion of the Rent Controller in this respect was not conclusive. In reply to the three points raised by the learned counsel for the appellant, it was argue by the learned counsel for the respondent that Jaipur Registration Act was not in force at the time the rent deed in question was executed. The unregistered rent note would therefore, be read into evidence. The rent note even if it did not amount to a lease was sufficient to bind the executant (the tenant defendant) and therefore he was bound to vacate the property after the expiry of three years. As regards the second point, it was argued that under sec. 116 of the Transfer of Property Act the tenancy could continue after the expiry of three years only if the landlord had accepted rent from the tenant for any period after the expiry of the term of had assented to his continuing in possession otherwise. It was not shown by the defendant appellant that any rent was accepted by the plaintiff for the period after the expiry of the lesse or assent had been given otherwise by him for the continuance of the tenancy after the expertly of the term of three years. The tenancy could not therefore be said to have been renewed after the expertly of the lease. As regards the third point it was argued that under sec. 15 of the Rent and Eviction Control Act the Rent Controller is not authorised to grant a certificate on the ground set forth in clause (h) of sub-sec. (1) of sec. 13 of the Rent and Eviction Control Act unless he is satisfied after taking all the facts and circumstances into consideration that it is reasonable to grant the same, and, the Controller who has granted a certificate in the present case will therefore be deemed to have granted the certificate after taking all the facts and circumstances into consideration as required by sec. 15 of the Rent and Eviction Control Act. His decision was therefore final and the Civil court could not go into the question of the premises being required reasonably bonafide by the landlord for the use or occupation of himself or his family. It was argued that under sec. 25 of the Rent and Eviction Control Act the order of the Rent Controller could not be called in question in any court. I have considered the arguments of both the learned counsel. So far as the points Nos. 1 and 2 raised by the learned counsel for the appellant are concerned. I do not find any force in them. At the time the rent note in question was executed the Registration Act was not in force in the territories of the erstwhile Jaipur State. The rent note was executed on the 10th of December 1944 and the Registration Act of Jaipur came into force on the 25th of October 1955 when it was published in the Jaipur Gazette. The registration of the rent note was therefore not compulsory. Neither sec. 17 nor sec. 49 of the Registration Act therefore applied to the case and the document could be read in evidence. The document shows that the executant had agreed to remain in possession only for three years and thereafter to surrender it to the landlord. The executant was therefore bound to surrender the possession of the property after the expiry of the term of three years. In the case of Maqbool Ahmed and others vs. Debi (l) it was held by the Allahabad High Court that a mere rent note or a Kabuliat does not amount to a lease but the person executing the rent note is however bound by its terms as a matter of his undertaking although the other party who has not signed the document would not be bound by them. I agree with this view and hold that even though a registered lease had not come into being the defendant appellant was bound by the terms of his rent note and was bound to surrender the possession of the property after three years. The period of three years having expired the plaintiff could call upon the defendant to vacate the shop in dispute without any notice under sec. 106 of the Transfer of Property Act which applies only in the absence of a contract or local law or usage to the contrary. As in the present case there was a contract for vacating the shop in dispute after three years, sec. 106 of the Transfer of Property Act did not apply and no notice in accordance therewith was necessary. The defendant himself did not consider it necessary to raise a plea to this effect clearly in his written statement. I have no reason to hod against the finding of both the lower courts that notice under sec. 106 of the Transfer of Property Act. was necessary for a suit for ejectment in the present case. Coming to the second point, I do not find in the pleadings of the defendant that any rent had been accepted by the plaintiff for the period after the expiry of the term of three years, much less is there any evidence to this effect. If the defendant wanted to show that the landlord had accepted rent from him for the period after the expiry of the lease or had otherwise assented to his continuing in possession it was his duty to raise a specific plea to this effect and to produce evidence thereon. This has not been done. Simply because the plaintiff has sued for arrears of rent for the three years only next preceding the suit it cannot be assumed that any rent was paid for any period after the expiry of the term Whether any rent was paid or not the plaintiff could not bring a suit for the recovery of arrears of rent for more than three years and from the mere fact that the suit had been brought for arrears of rent for three years only it cannot be assumed that any rent was accepted for the period between the expiry of the term and the period for which arrears of rent were claimed in the suit. The third contention of the learned counsel of the appellant however appeals to me. Under sec. 13 of the Rent Control and Eviction Act a decree could be given in ejectment in favour of a landlord whether or not the period of tenancy has terminated so long as the tenant was ready and willing to pay rent therefore to the full extent allowed by the Act only if the court was satisfied that the premises are required reasonably bonafide by the landlord for the use or occupation of himself or his family. This is quite clear on a reading of the opening para of sub-sec. (1) of sec. 13 with its clause (h) From the wordings it is quite clear that it is the court which should be satisfied that the premises are required reasonably bonafide by the landlord for the use or occupation of himself or his family. No doubt it is a condition precedent for the bringing of a suit for eviction that the landlord should obtain a certificate from the Rent Controller who would not grant a Certificate on the ground set forth in clause (h) of sub-sec. (1) of sec 13, unless he is satisfied after taking all the facts and circumstances into consideration that it is reasonable to grant the same. All that the Rent Controller is required for the granting of the certificate on the ground mentioned above is that he should be satisfied that it was reasonable to grant the certificate. This he could not do arbitrarily but was required to do after taking all the facts and circumstances into consideration. The fact that the Rent Controller cannot grant a certificate for ejectment on the ground set forth in sec. 13 (1) (h), unless he is satisfied in accordance with sec. 15 does not mean that his opinion is conclusive and a civil court cannot examine for itself whether such necessity exists or not. If the finding of the Rent Controller under sec. 15 were conclusive, then sec. 13 (1) (h) would not have been worded as it is, and there would have been inserted some such provision as "that the Rent Controller has granted a certificate under sec. 15 on the ground that the premises are required reasonably bonafide by the land lord etc. " There was no necessity for the insertion of the present language if it were the intention of the legislature that the question about the necessity under clause (h) becomes conclusive after the Rent Controller has given a certificate of ejectment under sec. 15 and the civil court cannot go into the question and decide it for itself. In the case of Devi Shankar Bhattacharjee vs. Dr. Jogendra Bhusan Sanyal (2) a similar question came up for consideration before the Culcutta High Court under sect. 13 of the culcutta Rent Ordinance of 1946. Permission of the Rent Controller had to be obtained before filing a suit for ejectment on the ground that the landlord bonafide required the premises for his own use. The Rent Controller in the said case gave his permission and it was contended by the landlord that the court in a suit for ejectment after the permission of the Rent Controller could not go into the question whether the requirement was bonafide. It was held that the court itself had to decide whether the elements mentioned in clause (d) of the proviso existed. The provisions in the said clause were some what similar to those of clause (h) of sub-sec. (1) of sec. 13 of the Rent and Eviction Control Act. It was held that the court must come to its own conclusion on the point and the Rent Controller's decision merely removed the bar to the entertainment of the suit. It did nothing further. Under sec. 15 of the Rent and Eviction Control Act a landlord is required to obtain a certificate from the Rent Controller so that frivolous suits might not be filed. The grant of the certificate only removes a bar to suit and does not furnish the landlord with a document which would shut the civil court from an enquiry as to whether the landlord reasonably bonafide required the premises for his own use or for that of his family. It is just like obtaining the previous sanction of the Advocate General to bring a suit under sec. 92 C. P. C. The court can go into all the relevant questions even after the sanction of the Advocate General. Sec. 25 of the Rent and Eviction Control Act, to my mind, is not relevant to the case as no order of the Government or the Controller is being called in question in this court. The learned first appellate court was therefore not justified in not going into this question itself. The appeal is allowed, the decree of the first appellate court is set aside and the case is remanded to it for decision of the appeal in accordance with law and in the light of the observations made above. Costs of this appeal shall abide the result in the lower appellate court after this remand. . ;