PALLI, J. - (1.) THIS appeal came up for hearing on admission on 14-11-1994 before this Court. In the presence of the learned counsel for the parties it was ordered to list the case for final disposal and it is in these circumstances this appeal comes up before me for final disposal.
(2.) THIS second appeal arises out of the concurrent findings recorded by the learned courts below whereby the appellant-tenant has been ordered to be ejected from the premises in question and the suit filed by the respondents-landlords has been decreed. The premises in question is a 'kotha' which was rented out to the appellant-tenant for the purpose of 'bethak' at the rate of Rs. 121/- per month and the rent was enhanced to Rs. 141/- some time late. The tenant defaulted in the payment of rent and for that purpose a suit was filed on 18-8-1982. 18 Months rent was in dispute in those proceedings and on 4-3-1983 the entire rent was paid along with interest and proceedings were dropped giving the tenant the benefit of Sec. 13 (6) of the Rajasthan Premises (Control of Rent & Eviction ) Act , 1950 (For short "the Act" ). The tenant again did not pay the rent and the respondents- land lords were forced to file the present suit on the twin grounds; firstly, second default in the payment of rent and secondly, on the ground that the "kotha" was not being used for over six months and remains closed and thus this had given a right under the law to the landlords to seek decree of ejectment against the tenant covered under Sec. 13 (1) (i ). For facility of reference Sec. 13 (1) (i) and Sec. 13 (6) along with the proviso are reproduced hereunder : " 13 (1) (i) : 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. 13 (6): If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (1) of sub-section (1) shall be passed by the court against him : provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months. " (3a ). In reply, the tenant pleaded that there was no default in the payment of rent. The same has been offered and on refusal deposited in court from time to time and due to some mistake in calculation, only one month's rent was less and the same was also deposited later under orders of the court and on the question of non-user it was stated that the `bethak' was being used as a godown earlier as well as now and thus this ground of ejectment was not available to the plaintiff. The controversy between the parties was put in the issues and the only issues that require determination are issues nos. 1 and 5 and both these issues are reproduced hereunder : *** Issues nos. 2 , 3 and 4 were found unnecessary and ordered to be deleted as I see from the judgment of the learned trial court. Taking up first issue, the learned trial court examined in minutest details the rent due and the rent paid/deposited and after analysing the evidence it was recorded as a finding of fact that the tenant has not been depositing the rent due within the stipulated period and many defaults were committed by him in this respect. It was found that the rent deposited was less than it was due. On issue no. 5 the learned trial court has recorded a finding that the grain market has been shifted to some other place and the `kotha' in question was not being put to any use. The learned trial court took into consideration Ex. 2 , which has been addressed to the S. D. O. on the letter-head of the appellant- firm,wherein it has been said that the tenant has vacated the premises, i. e. godown of Jawari Lal Oswal and the premises of Lal Dass and Chunni Lal and thus the entry to this effect be recorded. It is further said that they have started their business in the Krishi Mandi. This letter is dated 8-3-1985. It appears that this letter had been written in connection with the licence, that is required by the general merchant commission agent. the learned trial court also took notice of the statement of witness P. W. 3 Peeru Khan, who works as a labour and he stated on oath that the disputed kotha is lying closed for the last four to five years and the defendants are not doing any business there. The letter Ex. 2 noticed above has been accepted to be correct by the appellant which is signed by Laxmi Chand. It has also been accepted by this witness that the electricity supply stands disconnected for the last seven years and the telephone that was earlier installed in this kotha stands shifted to the mandi. After carefully scruti- nising the pleadings, the oral as well as the documentary evidence,the learned trial court decreed the suit against which first appeal was filed by the appellant which came to be decided by the learned District Judge. The findings recorded by the learned trial court were affirmed and the appeal was dismissed by a well reasoned order in appeal by the learned District Judge. The learned counsel for the appellant Mr. M. Mridul opening his argument has raised a contention that proper pleas embracing Sec. 13 (1) (j) were neither raised nor an issue was framed and thus the judgment and decree passed by the learned courts below is erroneous and is liable to be set aside. The learned counsel further contends that the issue already framed does not cover the requirements as given in Sec. 13 (1) (j ). According to the learned counsel it is for the landlord-plaintiffs to plead that the premises have not been used without reasonable cause for the purpose for which they were let for the continuous period of six months immediately preceding the date of the suit. On a careful reading of the provision, I am unable to accept the argument raised by the learned counsel. This argument was also raised before the learned first appellate court and after examining the same,the learned first appellate court rightly found that issue no. 1 was wide enough to cover the ground and in my opinion it is well known that when the parties to the lis are vigilant enough knowing fully well the points involved and lead evidence thereon, the finding cannot be set aside merely because an issue was not raised. In the present case both the parties knowing fully well have led evidence and have further invited the decision of the court and now the appellant cannot turn round and say that proper issue was not framed. The contention of the learned counsel thus, carries no force. The learned counsel further stressed that there was no default in the payment of rent and the rent due was deposited as per the statutory require- ments. Here, again, I am not prepared to accept the argument for the simple reason that after mathematical calculation in detail, the learned trial court has found, as a matter of fact that the tenant not only made payment late but further defaulted in calculating the amount deposited and thus was not entitled to be granted any benefit as it was a second default which is covered under the proviso of Sec. 18 (6) of the Act which has already been reproduced above. It is also not open to me to disturb the concurrent findings of fact recorded by the learned courts below on this point in the second appeal. The learned counsel from the side of the appellant has pressed into service a decision of this Court reported as Bajrang Lal V. Ram Deo (1 ). The learned counsel strongly relies on the observations in this judgment wherein it is held that it was not necessary under Sec. 13 (1) (a) that there should be default in payment of rent of continuous six months and this clause is fully attracted, if defaults in payment of rent of six or more months are committed. Which is normally received back by the sender in original has not been produced, frame this decision has no application so far as the present case is concerned.
(3.) THE next judgment cited by the learned counsel in support of his contention is Smt. Manak Bai v. Kalyan Bux 1989 (2) RLR 704, a decision of Hon'ble Division Bench of this Court. In this judgment it was held that "if a tenant acts in any of the methods provided in S. 19-A (3), he can escape liability from eviction on the ground of default in payment of rent u/s. 13, in view of S. 19- A (4)". This point has also been dealt with by the learned fist appellate court and a finding has been recorded against the appellant that he has not been able to establish as to when the money order was sent. THE burden of proving the issue was on him and he, thus, failed to discharge the same. In Ex. 1 which has been placed on record from the side of the appellant, it is no where recorded as to when this amount was sent. THE form where it could be known as to when this amount was sent and for which period. THE tenant had admittedly committed second default and cannot escape the consequences by taking such pleas now. The learned counsel appearing for the respondents landlords has replied that it was not open for this Court to disturb the concurrent finding of fact recorded by the learned courts below. The learned counsel strongly relies on Ex. 2, the letterhead form, which is an admission on the part of the appellant in respect of the "kotha" lying closed. It has been clearly stated therein that the premises was not being put to any use and, therefore,licence be cancelled. Learned counsel has further pressed in service a decision of this Court reported as Sant Lal v. Harbans Singh (3), wherein it has been observed that "closing of the shop for six months or more immediately preceding the institution of suit amounts to non-user within the meaning of Sec. 13 (1) (j ). "it has been further held that "this finding amounts to a finding of fact ". At page 283 of this very judgment an argument was raised that since the plaintiff has not alleged the premises having not been used without reasonable cause, what would be its effect. The question was whether the plaintiff was required to plead and prove the fact "without reasonable cause". It was opined that it was neither necessary for the plaintiff to plead so nor it was necessary for him to lead evidence in this respect. In Godharam v. Vasudev Prasad Sharma (4), a decision of the Madhya Pradesh High Court , where in identical situation it was held that "no such pleading was strictly required nor evidence in that respect was needed". To the similar effect is the decision of Madhya Pradesh High Court reported in Bhagwandas Pawaiya V. Registered Firm Kailash Narayan & Bros. ;