- (1.) THIS is an appeal by the defendant-tenant against the judgment and decree of the learned District Judge, Alwar. The plaintiff responded filed a suit in the court of the Munsif, Alwar for the ejectment of the defendant from a certain house on the allegation that the defendant had not paid rent since 1947 and that the house was required reasonably bonafide by the plaintiff for his personal use. Before filing the suit the plaintiff had obtained a certificate from the Rent Controller, Alwar for bringing the suit for eviction under sec. 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred to as the Act. The suit was filed on the 20th of March, 1952, before amendment was made in the Act by the amending Act of 1952 under which the necessity to obtain la certificate from the Controller was done away with. THIS amendment Act came into force on the 29th of March, 1952.
(2.) VARIOUS pleas were taken by the tenant-defendant in his written statement but I am concerned with only two as out of the pleas taken in the written statement only these two pleas have been pressed in appeal. They are as follows - (1) That the defendant was all the time willing to pay the rent to the full extent allowable by the Act but the plaintiff himself did not receive it, and that the plaintiff was not entitled to eject the defendant on this ground because no notice was served on him as required by sec. 13 (l) (a) of the Act. (2) That the plaintiff did not require the house reasonably bonafide for his own use or occupation or that of his family. A new question was raised in appeal that no notice as required by the Transfer of Property Act was served upon the defendant and, therefore, the plaintiff was not entitled to sue. The first court found all the issues in favour of the plaintiff decreed the suit. The defendant went in appeal to the court of the District Judge, Alwar who too agreed with the first court and dismissed the appeal. Before the learned District Judge point of notice under the Transfer of Property Act was pressed for the first time on behalf of the defendant but the learned District Judge held that in view of the language of sec. 13 of the Act such notice was not necessary. I am say here that the learned District Judge has not given any finding as to whether any notice was severed by the plaintiff on the defendant demanding the arrears of the rent from the defendant as required by sec. 13 (l) (a) of the Act because he though that in view of his finding on the question whether it was necessary for the plaintiff to prove in Civil Court that the house was required reasonable bonafide for his own use or occupation or that of his family, it was not necessary to go into this question. In this second appeal three points have been urged by Sri B. K. Bhargava on behalf of the appellant. They are as follows - (1) That the learned District Judge was wrong in holding that in view of the language of sec. 13 of the Act not notice for eviction under the Transfer or Pro-perly Act was necessary; (2) That the learned District Judge was wrong in holding that because the Rent Controller has granted a certificate to the plaintiff under sec. 14 of the Act for filing a suit for eviction against the defendant on the ground inter alia that the house was required reasonably bonafide by the plaintiff for his own use or occupation or that of his family, the civil courts were barred from going into this question over again ; and (3) That no notice was given by the plaintiff to the defendant demanding the alleged arrears of rent as required by sec. 13 (1) (a) of the Act and so the suit for eviction could not be brought on the ground of non-payment of rent. Sri R. C. Vyas on behalf of the respondent argued that the defendant did not take the plea of non-service of notice under the Transfer of Property Act in his written statement, and, therefore, he cannot raise this question in second appeal. He further argued that he defendant has admitted that he received a notice from the plaintiff and, therefore, it was sufficient to hold that a notice under sec. 13 (1) (a) of the Act was served upon the defendant. He argued that by virtue of sec 25 of the Act the certificate issued by the Controller should not be questioned in civil courts and, therefore, the lower courts were perfectly justified in holding that the Controller having issued the certificate for ejectment on the ground inter alia that the house in dispute was required reasonably bonafide by the landlord for his own use or occupation or that of his family, they were not entitled to go in this question. I have considered the arguments of both the learned counsel. So far as the first ground is concerned, I have no hesitation in saying that the defendant having not taken it in his written statement and no issue having been framed in the first court, he is not entitled to raise it in appeal. After all it was a question of fact whether a notice was received by the defendant and whether the said notice complied with the provisions of the Transfer of Property Act and the defendant ought to have raised it in the first court so that an issue might have been framed thereon and evidence recorded. I, therefore over-rule the first objection taken by the learned counsel for the appellant. Taking up the ground No. 2; I am unable to agree with the learned District Judge that because a certificate was granted to the plaintiff by the Controller to bring a suit for eviction of the defendant on the ground that the house was required reasonably bonafied by the plaintiff for his own use or occupation or that of his family, the Civil Court was barred from going into this question. I have read sec. 14 of the Act carefully and I find that sec. 14 only bars a suit on the ground inter alia that the premises are required reasonably bonafied by the landlord for his own use or occupation or that of his family unless a certificate is obtained from the Controller. The certificate is necessary so that the suit might be entertained but it is not the last word on the subject and simply because the Controller has issued a certificate on the ground that the premises were required by the landlord reasonably bonafied for his own use or occupation or that of his family, the civil court have got full jurisdiction to go into this question. Under certain provisions of law, it may be necessary to obtain the permission of particular authorities to bring civil suits as. for example, under sec. 92 of the Civil Procedure Code the permission of the Advocate General is necessary for bringing such suit. It, however, does not. mean that because the permission of the Advocate General has been obtained on certain grounds, those grounds should not be considered by the Civil Court independently on the evidence before him. Similar is the case under the Act. The certificate from the Controller is required to file a suit in the Civil Court The Civil Court has however, got perfect jurisdiction to go into the grounds on which eviction is prayed for. Sec. 13 clearly says that no court shall pass any decree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . evicting the tenant, whether or not the period of the tenancy has terminated, so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied - (a) that the tenant has neither paid nor tendered the whole of any arrears of rent due within one month of the service on him of a notice of demand from the landlord : (h) that the premises are required reasonably bonafied by the landlord for the use or occupation of himself or his family. It is thus clear that the law requires the civil court to be satisfied that the conditions necessary for evicting a tenant as given in sec. 13 (1) are fulfilled. Simply because a certificate has been issued under sec. 14 on the ground covered by clause (h) of sec. 13 (1), the civil court cannot refuse to examine the evidence before it whether those conditions are fulfilled. In my opinion, the learned District Judge was not justified in holding that conditions laid down in clause (h) of sec. 13 (1) of the Act were fulfilled simply because a certificate had been issued by the Controller to the plaintiff on that ground. The learned District Judge has remarked in passing that Ramgopal had said that the house in suit was required reasonable bonafide by the plaintiff for his own use or occupation or that of his family and that his evidence has been believed by the first court. The learned District Judge, however, does not say whether he himself believes the evidence of Ramgopal and whether his evidence alone was sufficient to prove that the house was required reasonably bonafide for his own use or occupation or that of his family by the plaintiff. The learned District Judge ought to have gone into the evidence on the record irrespective of the question that the controller had granted the certificate under sec. 14 to the plaintiff on the ground covered by c!ause (h) of sec 13 (4 ). It may be said that if it is proved that the conditions laid down by clause (a) of sec. 13 (1) are fulfilled then the ejectment can be decreed. Only on that ground and it would not be necessary to go into the ground given in clause (h ). But the question is whether in this case the plaintiff has been able to prove that the conditions laid down by clause (a) are satisfied. Learned District Judge has not gone into this question at all. He was not justified in treating this question as unnecessary simply because a certificate under sec. 14 had been granted to the plaintiff. On this ground also the court had to see itself on the evidence before it whether any arrears rent were due and if so whether the tenant had neither paid nor tendered the whole of those arrears of rent due within one month of the service on him of a notice of demand from the landlord. To decide this question, it was necessary that either the primary or secondary evidence as required by the Law of Evidence ought to have been coming forward to prove that a notice as required by sec. 13 (1) (a) was served on the defendant. Under the circumstances, I cannot uphold the decree of the learned lower appellate court. The appeal is allowed, the decree of the lower court is set aside and the case is sent back to it for disposal in accordance with law and in the light of the observations made above. The lower appellate court shall give an opportunity to the parties to produce whatever additional evidence they like on the following points - (1) Whether any arrears of rent were due and the defendant had neither paid nor tendered the whole of them which one month of the service on him of a notice of demand from the landlord; and (2) Whether the premises are required reasonable bonafide by the landlord for the use or occupation on himself or his family. On no other points additional evidence will be allowed. The costs of this appeal shall abide the result of the appeal before the learned District Judge after this remand. . ;