- (1.) LIKE boxers in a ring, this is the fifth round of boxing between the landlord and the tenant. The fight is continuing not because of the fighters themselves, but because the trial court has failed to follow the directions issued by the first appellate Court and by this Court. Needlessly, the litigant are suffering the endless judicial voyage for the last thirty- five years. The landlord is still hoping for getting the tenant vacated from his premises; the tenant is enjoying the fruits of judicial lethargy. This fight must end now.
(2.) WAY back in 1971, the landlord, the respondent before this court, had filed a suit for eviction on the grounds of bona fide necessity, nuisance, change of user, and default in the payment of rent. However, the trial court dismissed the said suit vide its order dated 2. 12. 1974. Therefore, the landlord filed an appeal before the first appellate court. Along with the appeal, he also filed an application under Order 6, Rule 17 of the Civil Procedure Code (henceforth to be referred to as `the Code', for shorti ). The landlord pleaded that he should be permitted to amend the suit and to state that the tenant had already taken the benefit of the first default. Therefore, the benefit of the second default cannot be taken by the tenant. The landlord also filed an application under Order 41, Rule 27 of the Code, for bringing the document on record showing that in an earlier suit, the tenant had taken benefit of the first default. Vide Order dated 22. 8. 1978, the learned appellate court dismissed the application under Order 6, Rule 17 of the Code and held that the question of second default and benefit of Section 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (henceforth to be referred to as `the Rent Control Act', for short) could be considered without any amendment. However, it did allow the application under Order 41, Rule 27 of the Code and took the documents, namely Order dated 27. 10. 65 and 30. 11. 65 showing the first default by the tenant. Further, vide Order dated 27. 2. 1980, the landlord's appeal was allowed and the case was remanded back to the trial court. The first appellate court directed the trial Court to frame an issue about the comparative hardship of the parties. However, after remand, the landlord again filed an application for making the amendment with respect to the second default. The learned trial Court allowed the amendment and also framed an issue, issue No. 7 (a) about "whether the respondent has defaulted in payment for the second time or not? If yes, then its effect?" Since the tenant was aggrieved by the trial court's order, he filed a revision petition before this Court. Vide Order dated 23. 2. 83, this Court allowed the revision petition and disallowed the amendment. But, it did direct the trial Court to decide the case in terms of the Order dated 22. 8. 1978 and to consider the question of second default and about the non-applicability of Section 13 (6) of the Rent Control Act. Consequently, vide Order 15. 12. 83, the trial Court deleted the amendment in the plaint, but kept the issue of second default on record. Vide order dated 9. 2. 87 the learned trial Court dismissed the suit filed by the landlord. While dealing with the issue of second default, the learned trial Court ultimately held that this issue need not be answered. The stand taken by the trial Court was clearly in violation of the direction issued by the first appellate Court and by this Court. Therefore, the landlord again filed an appeal before the first appellate Court. Although, the appeal was filed in the year 1987, it was finally decided after lapse of 18 years vide order dated 3. 3. 05. Even after 18 years the first appellate Court has remanded the case back to the trial Court for deciding the issue of second default and to decide non-applicability of Section 13 (6) of the Rent Control Act. Since the tenant is aggrieved by the said order, he has filed the present appeal before this Court. Mr. Gopal Garg, the learned counsel for the appellant, has vehemently argued that the direction issued by the first appellate court and by this court to the trial court were that the trial Court shall decide whether the tenant had defaulted in payment of rent for second time and whether sub-section 4 of Section 13 of the Rent Control Act was to be applied or not. According to the learned counsel the said issue has been decided by the trial Court. Since the issue has been decided by the trial Court, there was no reason for the first appellants court to remand the case. Moreover, the power to remand the case is the vast power, therefore, it should be used sparingly. Instead of invoking its power under Order 41 Rule 24, the learned Judge has remanded the case back to the trial Court. Hence, the learned Judge has failed to exercise a power vested in him. Thus, the impugned order deserves to be set aside. On the other hand Mr. Bipin Gupta, the learned counsel for the respondent, has argued that instead of deciding the issue with regard to the second default, the learned trial Court has circumvented the entire issue. Therefore, the learned Judge has correctly held that the issue has not been decided by the trial Court. Furthermore, according to the learned counsel evidence had to be taken about the said issue which can only be done the best by the trial court. Therefore, he has supported the impugned order.
(3.) WE have heard both the learned counsels and have perused the impugned order. A bare perusal of the order dated 9. 2. 87, a copy of which was placed before the Court, clearly reveals that the learned trial Court has concluded that there was no specific direction issued by the first appellate court vide order dated 22. 8. 78 to consider the issue of second default. It has then proceeded to wonder whether the said issue could be considered suo moto by the Court. While considering this issue the learned trial Court has concluded that since application for amending the plaint was disallowed by the first appellate court and also by this Court subsequently, the evidence produced by the plaintiff cannot be considered. Moreover, according to the learned trial Court once the amendment has been disallowed by this Court, the very issue stands deleted. Thus, the trial Court has held that it need not decide the issue of second default. A bare perusal of the order dated 22. 8. 78 clearly reveals that the first appellate court had clearly directed that the order dated 27. 10. 65 and 13. 11. 65 should be taken on record. Moreover, vide order dated 23. 2. 83 this court had clearly held "that it would be open to the landlord plaintiff to show to the trial court that the defendant tenant cannot take benefit of Section 13 (4) of the Act and similarly it would be open to the defendant-tenant to show that he can take benefit of Section 13 (4) of the Act depending upon the facts and circumstances of the case which are on record. " It had further held "it is made clear that even though the amendment has been disallowed but the trial Court would in accordance of the order dated 22. 8. 79 passed by the Additional Civil Judge, Bharatpur in the appeal consider the objection of the landlord in respect of alleged non- applicability of Section 13 (4) of the Act. " Thus a clear direction was issued by this Court to consider the issue of second default and to examine the non-applicability of Section 13 (4) of the Rent Control Act. Undoubtedly, in case the appellant-tenant had defaulted previously in paying the rent, the fact was crucial for decision of the suit filed by the landlord for eviction of the tenant. Since the order dated 29. 10. 65 and 30. 11. 65 were already on record, it was essential for the trial Court to examine the issue of second default and to consider the non-applicability of Section 13 (4) of the Act. After all, in case the tenant has defaulted the second time, he could not save himself from eviction. Once an unequivocal direction has been given by this Court, there was no reason for the learned trial court to circumvent the issue. It is rather surprising that the learned trial Court has ignored the directions of this Court. Because of the omission committed by the trial Court, the dispute continues to exist even after a lapse of thirty five years. This is really a sorry state of affairs where the litigant continues to suffer because of the violation of the direction issued by this Court. ;