VINEET KOTHARI, J. - (1.) THIS second appeal has been filed by the plaintiffs - landlords Guman Mal and ors, legal representatives of one Sanwal Chand, being aggrieved by the judgment and decree of the first appellate court dated 31.1.2008 whereby the suit filed by the plaintiffs - landlords was rejected as hit by the provisions of Section 14(3) of the Rajasthan Rent Control Act, 1950. The trial Court had, however, decreed the suit No. 23/2001 on 19.1.2007 directing eviction of the defendant - tenant on the ground of personal bona fide necessity of the plaintiffs. The suit premises is a shop situated at Bhinmal, Dist. Jalore.
(2.) MR . O.P. Mehta, learned counsel appearing for the plaintiffs - appellants submitted that the controversy involved in the present case is covered by the recent decision of this Court in the case of Late Mahadev and ors. v. Babu Lal and ors., reported in 2006(4) RDD 1868 in which this Court has held that Section 14(3) of the Act does not give a fresh protection of five years every time the landlord changes with respect to the suit premises let out for commercial purposes and it was further held that the irregularity, if any, in the institution of the suit before expiry of five years from the commencement of the tenancy also stands cured if the period of five years expires before the decree on the ground of personal bona fide necessity is passed by the trial Court. He further relied upon the decision of this Court in the case of Kahtoon Begum (deceased v. Bhagwan Das and ors., reported in 2004(1) RCR(Rent) 272 : 2004(1) WLC (Raj.) 761 in which case it was held by a coordinate Bench of this Court that the objection under Section 14(3) of the Act can even be waived by the tenant. Another judgment relied upon by the learned counsel for the appellants - plaintiffs was in the case of Ranchod B. Das v. LRs. of Kanhaiya Lal, reported in 2005(1) RCR(Rent) 339 : 2005(2) WLC (Raj.) 10. The learned counsel for the appellants urged that since the defendant had admitted that the father of the present plaintiffs Sanwal Chand had let out the shop in question to the present defendant Babu Lal in the year 1986, therefore, the execution of the fresh rent note by Guman Mal, the present plaintiff No. 1 on 21.12.1996 after death of his father Sanwal Chand in favour of the same tenant increasing the rent, did not bring into existence any fresh tenancy and even though there was no plea raised by the defendant in this regard, the first appellate Court held that the suit was not maintainable in view of Section 14(3) of the Act, which was absolutely incorrect. He also raised objection to the use of tenor of language by the first appellate Court deprecating the judgment of the learned trial Court by which the suit was decreed by the learned trial Court. On the side opposite, Mr. Suresh Shrimali appearing for the tenant urged that by a fresh rent-note dated 21.12.1996, a new tenancy came into existence and since the suit was instituted by the present plaintiffs on 26.5.2001 before expiry of 5 years, therefore, the suit was rightly rejected by the first appellate Court and since it was a question of law, the same could be raised before the first appellate Court also for the first time. He however, admitted that the original tenancy was created by the father of the present - plaintiffs Sh. Sanwal Chand in respect of the same suit shop in favour of the present defendant Babu Lal.
(3.) HAVING heard the learned counsel, this Court is of the opinion that the first appellate Court has erred in allowing the appeal of the defendant - tenant on the anvil of Section 14(3) of the Act. This Court in the case of Late Mahadev and ors. v. Babu Lal and ors. (supra) has held as under : "A bare reading of sub-section (3) of Section 14 of the Act, read in the context of object for which the said provision was enacted by the legislature would indicate that no suit for eviction on the ground of personal bona fide necessity can be brought about in the first five years of tenancy. Since this provision gives a protection to the tenant; in the tenanted premises let out for commercial and business purposes and he is assured for first five years and protected against the eviction sought on the ground of personal bona fide necessity of the landlord covered under Section 13(1)(h) of the Act, there is no indication in the provision of Section 14 in general or sub-section (3) of Section 14 in particular to provide a fresh protection of five years every time upon change of landlord upon purchase of property or otherwise change of ownership in the tenanted premises. The personal bona fide necessity is the cause of action and the suit filed for seeking eviction on that ground is the legal process and the decree of eviction is the recognition of that cause and right and relief granted to the landlord. Therefore, there appears to be no intent of the legislature to grant extension of period of five years every time, the property changes hands to a new landlord who steps into the shoes of the erstwhile landlord. It is a pro- tenant provision and therefore, the protection will go with the period of tenancy and it does not have the relationship with the change of ownership of the property whatsoever. There is no intention of the legislature to bar such a decree of eviction after a period of five years from the first date of tenancy even if it were to be held that a fresh period of five years would be available to the tenant from the new landlord upon change of ownership though it is no so held, as discussed above. The words of Section 14(3) are "no suit......... shall lie against a tenant" and not "no suit shall be instituted". There is a difference between the two words 'instituted" and "lie". The word 'instituted' denotes a point of time whereas the word "lie" denotes a period of time. Therefore, even if a suit is instituted within a period of five years, the said irregularity gets cured over the period, by lapse of time and the purpose of protection given by Section 14(3) of the Act is achieved with the lapse of five years and after five years, if such a decree of eviction is passed, such decree cannot be said to be hit by Section 14(3) of the Act and cannot be declared to be nullity for this reason. This is so because the decree of eviction is not merely a determination of right of the landlord to evict the tenant from tenanted premises but also a relief granted on the grounds of eviction established before the Court of law. If at the time of grant of such relief the statutory bar does not come in the way of the Court, it can always be so granted." ;