- (1.) THIS civil second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 28.4.2009 passed by the Additional District Judge (Fast Track) No.3, Jaipur city, Jaipur in Appeal No.48/2009 (69/2009) by which the appeal filed by the appellant has been dismissed which was preferred against the judgment and decree dated 13.2.2009 passed by the Civil Judge (Junior Division), Jaipur City (West), Jaipur in Civil Suit No.207/1999.
(2.) BRIEFLY stated, the facts for the disposal of the present second appeal are that the present suit was filed by respondent nos. 1 to 7 in the trial court in November, 1999 for eviction for the reason that appellant neither tendered nor paid the rent of shop since October, 1998 and also dismantled the plaster of walls and the flooring. It was also alleged that the defendant-appellant was also intending to sub-let the suit shop, therefore, decree of eviction be passed and a mandatory injunction be also passed in favour of the appellant not to sub-let the shop in question. During the pendency of the suit, the suit property was sold by respondent nos. 1 to 7 to respondent nos. 8 and 9 vide registered sale-deed dated 10.2.2000. The respondent nos. 8 and 9 were impleaded as plaintiffs in the suit. It appears that an application under Order 22 Rule 10 CPC was filed which was allowed. The respondents filed written statement denying the averments made in the plaint. The plaint was amended subsequently and para 6 was added in the plaint which was in relation to the fact that the suit premises was sold to respondent nos. 8 and 9 on 10.2.2000 and the plaintiffs transferred their all rights in the property and also permitted respondent nos. 8 and 9 to continue the suit. Reply to this amended para was also given to the effect that it was not required to be replied. The learned trial court on the basis of pleadings of the parties framed as many as five issues including relief. It appears that the defence of the defendant-appellant was struck off under section 13(5) of the Rajasthan Tenancy Act and against the order striking off the defence, appeal preferred was also dismissed and during the course of arguments, issue no.3 was not pressed, therefore, the learned trial court finding that default was committed by the defendant-appellant, as such he was liable to be evicted from the suit premises. The trial court decided issue nos. 1, 2 and 4 in favour of the plaintiff and issue no.3 was not pressed by the plaintiffs. The learned trial court decreed the suit for eviction and arrears of rent vide its judgment and decree dated 13.2.2009. The defendant-appellant having felt aggrieved preferred an appeal which came to be decided by the learned Additional District Judge No.3, Jaipur city, Jaipur who vide its judgment and decree dated 28.4.2009 dismissed the appeal and upheld the judgment and decree passed by the trial court. Hence, the present second appeal has been filed. I have heard learned counsel for both the parties and carefully perused the material available on record. It has been the contention of the learned counsel for the appellant that in the instant case it is not the present respondent nos. 8 and 9 who filed the suit but they subsequently purchased the suit premises, therefore, the default committed, even if any default committed previously by the appellant, will be of no help to him and, therefore, the trial court committed illegality in decreeing the suit. It is contended that the suit was filed on various grounds and the arrears of rent of the time when the suit premises was in the ownership of earlier landlord cannot be claimed. It is contended that the fact of the matter is that the default could not be proved. In support of his submissions, learned counsel has placed reliance on the decisions in the case of Ram Tahal Modi Vs. Ratan Lal and K. Diwakaran and another Vs. Durga Prasanna Choudhary and others- AIR 1989 Patna 13, Sheikh Noor and another Vs. Sheikh G.S. Ibrahim (dead) by L.Rs.- AIR 2003 SC 4163, LRs of Dev Kumar Vs. Paras Raj&Ors.- 2003(2) RCR 577 and Akkho Vs. Smt. M.B. Augustus- 1983 RLR 383. On the other hand, it has been contended that the suit was based on the ground of default and the appellatne committed first default for the period from 1.10.1998 to 31.10.1999 and then again committed default for the period November 2006, December, 2006 and January, 2007. It is contended that mandatory injunction was sought by the plaintiffs in relation to not sub-letting the suit shop. According to the learned counsel, the present case is one where during trial the respondent nos. 8 and 9 became party to the suit as they filed an application under Order 22 Rule 10 CPC and in that regard suit was amended and in such circumstances when no arrears of rent has been claimed and the defendant-appellant has committed default even after purchasing the suite premises, therefore, the learned trial court has correctly decreed the suit. It is contended that the authorities cited by the learned counsel for the appellant are not of much help to him in the present facts and circumstances of the case. Learned counsel in support of his submission has placed reliance on the decisions in the case of Hukam Chand Vs. Om Chand&ors.- (2001)10 SCC 715, Dhurandhar Prasad Singh Vs. Jai Prakash University&others- (2001)6 SCC 534, Om Prakash @ Chandra Prakash Vs. Gulkandi Devi&anr.- 1999(2) RLR 165, Chandrasen Vs. Murarilal- 1976 RLW 190 and Basant Balecha Vs. Yashwant Singh- 2008(1) CDR 400 (Raj.). I have carefully considered the submissions made before me and also carefully perused the principles laid down in the above authorities by the Honourable Apex Court and this court. It is to be seen that in the instant case, it is not in dispute that respondent nos. 8 and 9 were made party before the trial court and they participated in the suit proceedings. The suit was decreed for eviction. The appeal preferred was dismissed. It is also not in dispute that even after purchase of the suit property by the respondent nos. 8 and 9, default was committed as the rent was not paid in accordance with the provisions of the Rent Act from November to December, 2006 and January, 2007. Thus, in this regard, the findings which have been recorded by the trial court and the appellate court appears to be reasonable, just and proper and this is a finding of fact. As regards contention of the learned counsel for the appellant that the previous landlord did not make any contract with respondent nos. 8 and 9 in relatioan to recovery of rent and the decree of eviction was bad in law in view of the decision rendered by the Honourable Apex Court in the case of Sheikh Noor and another Vs. Sheikh G.S. Ibrahim (dead) by LRs (supra) is concerned, it is suffice to say that the above authority of the Honourable Apex Court is not of help to the appellant for the reason that the present case is one where application under Order 22 Rule 10 CPC was moved and was allowed and amendment was made in the plaint and para 6 was inserted in the plaint and that was not denied and even subsequently defaults were made and in this regard issues which have been framed and evidence adduced by the plaintiff has been found sufficient to hold that the defendant-appellant committed second default. In the present case, the question is not of arrears of rent. The question is as to whether protection available in relation to default will still be there or not when the property is sold.
(3.) IN the case of Hukam Chand Vs. Om Chand&others (supra), the Honourable Apex Court has held that subsequent events are required to be taken into consideration in a case where transfer of interest of landlord takes place pendente lite. It does not stop the progress of the litigation and the transferee merely steps into the shoes of his predecessor-in-interest whether he is impleaded as a party or not. It has also been observed that such transferee becomes bound by the result of the eviction suit including any relevant directions, terms and conditions set out in the decree. It is also observed that such transferee may seek leave of the court to come on record. IN the above case before the Honourable Apex Court while the appeal was pending, appellant filed an affidavit informing the Honourable Apex Court that the respondent-landlord had sold the disputed tenanted land. The Honourable Apex Court in the above circumstances held that there was no reason to set aside the decree against the appellant tenant. In the case of Dhurandhar Prasad Singh Vs. Jai Prakash University&others (supra), it has been observed that 'Order 22 Rule 10 CPC is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during its pendency but such a suit may be continued with the leave of the court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interested in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom the interest had devolved'. In the case of Akkho Vs. Smt. M.B. Augustus (supra), this court had an occasion to consider the matter which came before this court in similar circumstances and this court observed that 'transferees have got legal right to participate in second appeal. The transferee-landlord can take advantage of default committed by tenant during period of earlier transferor-landlord irrespective of fact whether transferee has right to recover earlier arrears of rent or not. It has further been observed in relation to Section 109 of the Transfer of Property Act while taking into consideration the provisins of Rent Control Act, 1950 that the landlord transferred the suit premises during pendency of the appeal of tenant against decree of arrears of rent and eviction. It is not necessary to examine whether by sale-deed plaintiff transferor transferred right to recover earlier rent or to continue legal proceedings or to take benefit of ejectment decree and as such transferee landlord is entitled to defend appeal and to execute decree. In the case of Chandrasen Vs. Murarilal (supra),almost in the similar circumstances, a matter came before this court and this court while considering the provisions of Section 13(1)(a) of the Premises (Control of Rent and Eviction) Act in relation to transferee landlord has observed as under: The question, therefore, whether the arrears of rent have been transferred or not, is of no consequence unless of course the defendant's case was that the previous landlord had waived such default. In absence of such a defence, the transferee landlord can take advantage of the default committed by the tenant in payment of rent due from him to the previous landlord for bringing his case within the ambit of section 13(1)(a) of the Act.' ;