P.C.JAIN,J. - (1.) THE judgment debtor petitioner has filed this petition u/S 115 C.P.C. against the order dated 23.3.1996 passed by Shri Ummaid Singh Solanki, Civil Judge (S.D.), Phalodi in execution case No. 3196 whereby petitioner judgment debtor's objections regarding the executability of the decree were rejected.
(2.) THE facts leading to the present petition, stated succinctly, are as follows: Non-petitioner respondent No. 1 has filed a suit for ejectment and recovery of arrears of rent against the petitioner in one Balkishan on the footing of a rent note executed by non-petitioner No. 2 in favour of non-petitioner No. 1 in respect of the suit premises. The plaintiff non-petitioner No. 1 inter alia, sought ejectment of the defendants on the ground of default in payment of rent and also on the ground that Balkishan non-petitioner No. 2 sub-let the suit premises to Bhagirath in violation of the condition of the tenancy. Both the defendants contested the suit. The petitioner as defendant No. 1 denied the tenancy and alleged that the defendant No. 2 petitioner Bhagirath was in possession of the suit premises as tenant of the plaintiff. The default in payment of rent was also denied. It would be pertinent to refer to the issues framed by the learned Munsiff in the above suit. (a) Whether defendant No. 1 took the suit premises on rent from the plaintiff on 16.2.1970 at the monthly rent of Rs. 30/- and executed a rent note in favour of the latter on 15.4.1970 ? (b) Whether the rent of the above shop was enhanced from Rs. 30/- to Rs. 44/- with effect from Kartik Sud Ekam Samwat 2033 and whether defendant No. 1 paid rent thereafter at the above rate ? (c) Whether the defendant No. 1 sublet the suit shop to defendant No. 2? d) Whether the defendant No. 1 committed defaults for a period of more than six months prior to the institution of the suit and as such defendant No. 1 has become a defaulter ? (e) Whether the plaintiff is entitled to get Rs. 1476/- from defendant No. 1 ? f) Whether the suit of the plaintiff is not maintainable for want of non-compliance of the provisions of Order 1 Rule 8 C.P.C. ? (g) Whether eviction is possible ?. (i) Whether defendant No. 2 only took the suit shop from the plaintiff and the rent note is only benami ? (ii) Whether defendant No. 2 is the tenant of the plaintiff ? (h) Relief. The learned Civil Judge decreed the suit of the plaintiff against both the defendants. Under issue No. 3, the learned Civil judge held that defendant No. 1 sublet the shop to defendant No. 2. Under issues Nos. 7 and 8, the learned Civil Judge held that since defendant No. 1 sublet the suit shop to defendant No. 2 without the consent of the plaintiff, the plaintiff is entitled to get a decree of eviction on the ground enumerated in Sec. 13(1)(d) of the Rajasthan Premises (Control of Rent and Eviction) Act.
(3.) WHEN the plaintiff non-petitioner No. 1 filed application for execution of the above decree, the same was resisted by the petitioner on the ground that the decree A passed by the learned Civil Judge was a nullity in the eye of law inasmuch as the learned Civil Judge did not find the ground mentioned in Sec. 13(1)(e) of the Act fulfilled by the plaintiff. The provisions of Sec. 13 of the Act interdict the Court from passing any decree or making any order in favour of a landlord whether in execution of decree or otherwise, evicting the tenant unless one of the grounds mentioned in Section 13 is proved in favour of the landlord and against the tenant. In the instant, case a perusal of the judgment of the learned Civil Judge eloquently shows that the plaintiff did not allege that defendant No. 1 sublet the suit shop to defendant No.2 with his consent. Though the averment of subletting was made. The relevant issues framed by the Court is issue No.3, but it does not reflect the mandate of Clause (e) of Sec. 13 of he Act He submitted that defendant No. 1 non-petitioner No. 2 has sublet suit shop to him. Only subletting is not a ground for eviction. According to Clause (e), the subletting should be without the consent of the landlord. In the present case, the landlord did not make any specific averment that defendant No. 1 sublet the shop to defendant No. 2 without his consent. Only a general averment of subletting have been made and issues has, also been framed on the same ground. The learned Civil Judge has therefore, not recorded finding which can correspond to Clause (e) of Sec. 13(1) of the Act. He has relied on Sunder Das v. Ram Prakash, AIR 177 SC 1201 : 1977(2) RCR 143(SC), Roshanlal v. Madanlal, 1976 RCR 112 (SC) : (1975) 2 SCC 785: AIR 1975 SC 2130, and Siba Pada Rai v. Sudhangsu Kumar Singh, AIR 1980 Cal 90 and Nand Bala Daisy v. B.B. Mukherjee, 1987(1) Ren CR 547 (Cal).;