Hon'ble N.C. SHARMA, J. - - (1.) PHOOL Chand deceased was admittedly tenant of the respondents in a shop premises facing north and forming part of a building known as Pratap Bhawan standing on Plot No. S 4 B on Kabir Marg, Bani Park, Jaipur. He had taken this shop premises on rent on March 14, 1963 from the respondents on a monthly rent of Rs. 30/-. Electric consumption charges calculated on the basis of readings in electric meter and water charges on proportionate basis were payable by him besides the monthly rent. According to the respondents-landlords, the tenant, PHOOL Chand, had deposited with them a sum of Rs. 60/- to be retained as advance till the tenant continued to occupy the shop. Initially, the tenant paid the rent for the period March 14, 1963 to March 31, 1963 on April 4, 1963 and thereafter he started paying it monthly according to Gragarian calender month. Although, the duration of tenancy Was fixed, as ten months, but it was also agreed that whenever the landlords wanted to get the premises vacated, they could determine the tenancy by serving notice of one month's duration. Irregular payments of rent were made upto the month of April 1966. Thereafter an amount of Rs. 59.60 was tendered by money order containing a remittance note that after appropriating the advance deposit of Rs. 60/- and deducting the money order commission of Rs. 0.90 paise, rent was being remitted in respect of the period from May 1, 1966 to August 31, 1966. This remittance was received by the plaintiffs on September 20, 1966 and the appropriation of the amount remitted was recorded towards the payment of rent for the months of May a.06.1966. Certain more remittances of rent were made as detailed in para 5 of the plaint which were appropriated towards payment of rent upto the end of the month of March 1967. Since the tenant had deducted money-order commissions from all these remittances made by money orders, they could not be termed as valid and proper tender of the monthly rent. Nothing was tendered or paid on account of rent in respect of the periods April 1967 and onwards. Upon these facts, the plaintiffs have pleaded that the non-tender and non-payment of rent by the deceased tenant, PHOOL Chand, for a period exceeding six months, as a ground for eviction of the appellants. Besides, Kailash Chandra, plaintiff No. 3, had passed the Diploma in Mechanical Engineering from Alwar Polytechnic in June 1967 and he was sitting idle and without employment. He reasonably and bona fide required the suit shop in order to start his workshop. It was alleged that since PHOOL Chand tenant used to carry on his business alone in the demised shop and since he has expired, his heirs are not legally entitled to retain the shop. Comparative hardship, in these circumstances, would not be greater to the appellants in case a decree for ejectment is passed against them and would be greater to the landlords-respondents in case such a decree is refused to them. This is the second ground upon which ejectment of the appellants from the suit premises is claimed. Although, the tenancy of PHOOL Chand deceased had determined by effluxion of time, yet, by way of abundant caution, the plaintiffs'-landlords', by serving upon PHOOL Chand, a notice dated November 16, 1967 on 18.11.1967, effectively determined his tenancy on and by December 18, 1967. It may be mentioned here that during the pendency of the suit instituted by the plaintiffs-respondents against PHOOL Chand-tenant, the latter expired on June 15, 1973 and since thereafter the appellants were in possession of the suit shop and the right to sue survived against them, they were impleaded as defendants to the suit. The plaintiffs thus, claimed a decree for Rs. 292.95 as arrears of rent and money-order commission wrongly deducted by PHOOL Chand from the rents remitted by money orders and Rs. 1/- as cost of notice and for ejectment of the appellants from the shop in dispute.
(2.) PHOOL Chand tenant contested the suit by filing a written statement on April 16, 1968. After his death when his widow Kapoori Devi, son Rajendra Kumar and daughters Santosh Devi and Premwati were substituted as his legal representatives, they also contested the suit and filed another written statement. According to them, the amount of Rs. 60/-, which was deposited by PHOOL Chand with the respondents, was advance rent for two months and not a deposit under stipulation for adjustment on vacation of the demised premises. When the respondents deliberately did not accept rent and did not give receipt by appropriating the amount of Rs. 60/- towards rent, PHOOL Chand had to remit the amount of Rs. 59.60 by money order after appropriating the above amount of rent towards rent and after deducting the money order commission for the period upto August 31, 1966. According to the appellants. PHOOL Chand, was always ready and willing to pay the monthly rent but since the respondents avoided to accept the same, the former had to make remittances of rent by money order after deducting the money order commission. Since the respondents refused to accept the rent of the month of June 1967 remitted by money order, PHOOL Chand had to stop further remittances. The requirement of the suit shop reasonably and bona fide for the purposes of Kailash Chandra was denied and it was pleaded that the real intention of the landlords was to enhance the rent. According to the appellants, Kailash Chandra was employed as permanent government servant in the Overhaul Centre of Post and Telegraph Department at Jaipur and was not sitting idle. The latter had no intention to start a workshop in the demised premises. The respondents' plea that the appellants have no right to continue to occupy the suit shop after the death of PHOOL Chand, is disputed and it is asserted that the heirs of a deceased statutory tenant have also been included in the definition of 'tenant' as given in Sec. 3 (vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, hereinafter, "the Act"). It was further stated that the plaintiffs had five more shops belonging to them and, out of them, they had lately let out four shops and one shop was still vacant with them. Had a shop been really required for Kailash Chandra, he would have occupied the same and started his workshop. As the agreed rent of the premises was excessive, PHOOL Chand had instituted a suit for determination of the standard rent of the demised premises under Sec. 6 of the Act, on February 23, 1968 and had also presented therein an application for fixation of provisional rent till the determination of the standard rent. It may be mentioned that both the landlords and tenant Phool Chand made applications before the trial Court under Sec. 13 (4) of the Act for determining the arrears of rent due against Phool Chand and for issuing directions to him to deposit the same in court. The trial Court determined a total amount of Rs. 542.50 as arrears of rent, interest and the amount which Phool Chand had deducted as money order commissions and directed the tenant to pay to the landlords or to deposit the same in Court by November 6, 1968. This amount was deposited by the tenant, Phool Chand in time. Now, a brief narration regarding suit for determination of standard rent of the demised premises instituted by Phool Chand tenant. That suit was instituted on February 23, 1968. In that suit provisional rent of the premises was fixed as Rs. 25/ per month. Munsiff, Jaipur City (West), by his decree dated October 31, 1974, determined the standard rent of the premises as Rs. 30/per month which, it is to be noted, was also the agreed rate of rent. Rajendra Kumar and Smt. Kapoori Devi, respectively son and widow of deceased tenant Phool Chand filed Civil Appeal No. 132 of 1979, against the decree of the Munsif, Jaipur City (West) and one of the contentions put forward by these persons before the appellate Court was that the Munsif had not fixed any date in his decree with effect from which the standard rent fixed would come into force. The Additional District Judge No. 4, Jaipur City, who decided the said appeal on August 2, 1979, modified the decree of Munsif, Jaipur City (West) and fixed October 31, 1974 as the date from which the standard rent determined at Rs. 30/- per month would have effect. Landlords filed a revision before this Court and it was urged on their behalf that the first appellate Court had not made it clear as to at what rate the landlords would be entitled to receive rent in between Feb. 23, 1968 and Oct. 30, 1974. For obvious reasons, the revision petition filed by the landlords was summarily dismissed on February 7, 1980 by this Court stating that when standard rent had been fixed at Rs. 30/- per month from October 31, 1974, that meant that the landlords would be entitled to receive rent at the agreed rate prior to October 31, 1974 which was also Rs. 30/- per month. Reverting to the ejectment suit, out of which this second appeal arises, the Additional Civil Judge, Jaipur City, after trial, held that Phool Chand had executed the rent-note dated March 14,1963, in favour of the plaintiffs-landlords and the tenancy was later on started from the first day of every month. The rent note Ex. 1 was held to be admissible in evidence. As to the determination of tenancy, it was held that the same determined by effluxion of time of 10 months and even otherwise it was validly determined by one month's notice as stipulated in the rent note. On the question of defaults in the payment or tender of rent by the tenant, the trial Court held that with respect to the amount of Rs. 60/, it was, clearly stipulated in respect that this advance payment of rent will remain under deposit with the landlords tile the tenant vacated the demised premises. The tenant was, therefore not entitled to appropriate this amount of rent towards the rent due for the months of May a.06.1966 while remitting the amount of Rs, 59.10 by money order. Thus, when the plaintiffs had instituted the suit, the tenant had neither paid nor tendered the rent of six months which was a ground of ejectment furnished by Sec. 13(l)(a) of the Act. Apart from that the tenant had not always regularly deposited rent month by month in Court by the fifteenth of the succeeding month as required by Sec. 13 (4) of the Act. When the provisional rent was fixed at Rs. 25/ per month in the standard-rent suit, the tenant deposited rent at that rate but when the standard rent was fixed at Rs. 30/- per month, he did not deposit the deficit amount at the rate of Rs. 5/per month in respect of the period from September 1, 1968 to October 31,, 1974. Consequent to these non-compliances of second part of the provision contained in Section 13 (4) of the Act, the defence of the defendants was liable to be struck off under Sec. 13 (5) of the Act and they were not entitled to the protection afforded by Sec. 13 (4) of the Act. On the question of reasonable and bona fide requirement of the suit premises by the landlords, the trial Court held that Kailash Chandra plaintiff intended to start machinery work and for that purpose he needed the suit premises reasonably and bona fidely. On the question of comparative hardship, it was found that Rajendra Kumar defendant was doing service and he had also a shop in the name of his daughter in Jawahar Nagar, Jaipur where business in cement is being carried on. The defendants have, thus, alternative accommodation as well as means with them and, therefore, comparative hardship would be greater to the landlords in case decree for ejectment is refused to them. The trial Court under issue No. 7A framed by it held that the demised premises had been taken on rent from the plaintiff by Phool Chand and that he alone was carrying on business in it. So far as his son Rajendra Kumar is concerned, he is in service. The licence was also in the name of Phool Chand alone and it was only with effect from January 1, 1976 that licence was got changed in the name of Vimal Kumar. It was held that the defendants were not carrying on business along with deceased Phool Chand till the death of the latter or members of his family. On the basis of these findings, the trial Court, on November 21, 1978, decreed the suit of the plaintiffs for ejectment of the defendants from the suit premises. Aggrieved by this decree, the appellants filed Civil First Appeal No. 261/1978, in the Court of District Judge, Jaipur City, which was heard and dismissed by the Additional District Judge No. 1, Jaipur City on August 24, 1983. Before the first appellate Court, the appellants challenged the findings of the trial Court on issues relating to defaults in payment, tender and deposit of rent, reasonable and bona fide necessity of the suit premises for the purpose of Kailash Chandra, comparative hardship in refusing and granting of decree of ejectment and the non-carrying of business by the appellants along with, deceased tenant, Phool Chand, till latter's death. The first appellate Court reversed the findings of the trial Court on first three matters, just above mentioned, but upheld the findings of the trial Court on issue No. 7A. On the question of defaults, the first appellate Court held that in the standard rent suit. provisional rent was fixed at the rate of Rs. 25/- per month which had been deposited in Court by the defendants. In the standard rent suit, the first appellate Court had specified October 31, 1974 as the date from which the standard rent determined by the Munsif, Jaipur (West) at Rs. 30/- per month would take effect. The landlord's filed a revision petition against the appellate decree in this Court and this Court had passed orders in revision without any notice to the defendants and consequently the defendants did not commit defaults in deposit of rent month by month in trial Court as required by Sec. 13(4) of that Act. So far as rent for the month of June 1976 was concerned, its tender was presented in Court on July 16, 1976 and deposit was made on July 17, 1976 as Advocates were on strike at Jaipur on July 15, 1976. It could not, therefore, be held that deposit of rent of the month of June 1976 was not made within the prescribed time. On the question of personal necessity, it was held that Kailash Chandra plaintiff was in service in Indian Post and Telegraph Department and, therefore, he does not reasonably and bona-fide require the suit premises for his use and occupation. As to comparative hardship, as Kailash Chandra was in service, no question of hardship to the plaintiff arises. Similarly, there was no hardship to the defendants as his son Rajendra Kumar did not carry on any business in the suit shop. Coming to issue No. 7A, the first appellate court held that Rajendra Kumar son of the deceased tenant Phool Chand was in service for the last 15 years and that Phool Chand, during his life time, was carrying on his business in the shop as sole proprietor. According to the first appellate Court, Phool Chand was holding 'statutory tenancy' which was not heritable. Even after the amendment of the Act in the year 1975, the defendants did not become 'tenant' of the plaintiffs within the meaning extended to that term by Sec. 3 (vii) (b) of the Act. So far as Vimal Kumar is concerned, his age was only 10 or 11 years at the time of the death of Phool Chand and moreover he was not a heir of the deceased in accordance with personal law applicable to the deceased and he was also not ordinarily carrying on business with the deceased in the suit premises as member of his family upto his death. Thus, although the first appellate Court reversed the findings of the trial Court on issues No. 3, 4, and 7B framed in the suit, but in view of its affirming the findings on issue No. 7A, it dismissed the first appeal filed by the appellants. The defendants and Vimal Kumar have come in second appeal to this Court and the landlords have filed cross-objections against the findings on issues No. 3, 4 and 7B given by the first appellate Court against them.
(3.) IT may be mentioned that in their grounds of appeal filed on November 14, 1983, the appellants attacked the decree of the first appellate Court mainly on the ground that the said court has not correctly interpreted the provisions regarding 'statutory tenant' as given in Section 3 (vii) of the Act and has erred in not holding the appellants to be statutory tenants despite the fact that Rajendra Kumar was sitting on the shop with his deceased father in the morning and evening and Vimal Kumar, grand-son of Phool Chand, deceased was also carrying on business along with Phool Chand in the shop upto his death and substantial questions of law were also framed in that light in para 7 (f) (i) to(iii) of the grounds of appeal. Mr. B.P. Agrawal, learned counsel for the appellants contended that the decision of their Lordships of the Supreme Court in Smt. Gian Devi Anand V. Jeevan Kumar and others (1) had not been delivered when this second appeal was filed and that in Smt. Giandevi Anand's case, five Judges Bench of the Supreme Court has now authoritatively laid down that the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and that the tenancy rights both in respect of residential premises and commercial premises are heritable. Accorrdingly, the learned counsel contended that on the death of the statutory tenant Phool Chand, the appellants stepped into the position of Phool Chand and all the rights and obligations of the deceased tenant Phool Chand including the protection afforded to the said deceased tenant under the Act devolved on the appellants as heir of deceased statutory tenant Phool Chand. IT was urged that the view expressed to the contrary by the Supreme Court in its decision in Ganpat Ladha Vs. Shashikant Vishnu Shinde (2) did not lay down the correct law and was expressly overruled in Smt. Gian Devi Anand's case (Supra). The learned counsel also relied and referred to the decision in Damadi Lal vs. Parashram (3) and in V. Dhanapal Chettiar vs. Vesodai Ammal (4) in support of his contention. In reply, learned counsel for the respondents-landlord urged that Phool Chand was a statutory tenant and he had died on 15.6.73 i.e. before the definition of "tenant" was enlarged by the Amending Act of 1975 in this State and that statutory tenancy was not heritable. IT was contended that it has been found as a fact that the appellants are not tenants within the extended definition given in the expression in Sec. 3 (vii) (b) even by the Amending Act of 1975. In support of his cross-objections, Mr. Satish Chandra Agrawal, learned counsel for the landlords, urged that the appeal has not been properly constituted in as much as Vimal Kumar appellant No. 4 was neither a party in the suit and nor in the first appeal and he has been wrongly impleaded as one of the appellants. It was next contended that the defendants had not deposited in court rent month by month under section 13 (4) of the Act within the time prescribed by that provision and therefore they were not entitled to the benefit of protection conferred by section 13 (6) of the Act. The learned counsel also challenged the findings of the first appellate Court on issues relating to reasonable and bona-fide requirement of the premises for the purpose of Kailash Chandra and comparative hardship. It was urged that Kailash Chandra was a diploma-holder in Mechanical Engineering and he could not be expected to sit idle for so many years in the hope of availability of the shop till the eviction decree was passed and executed. The learned counsel submitted that Kailash Chandra had been employed as a temporary clerk in Post and Telegraph Department. He cannot be denied to have his shop to open a workshop and he cannot be expected to go on continuing with his clerical job which is insufficient to maintain himself and his family. On the question of comparative hardship, it was urged that on the one hand, there was a qualified diploma-holder in Mechanical Engineering who is under-jobed on a clerical post and on the other hand, Phool Chand, who was a sole proprietor of the business carried on in the shop, has died and his only son Rajendra Kumar is already employed and was not doing business in the shop, comparative hardship in these circumstances, it was contended, was greater to the landlords. The learned counsel, thus, urged for reversal of the findings of the first appellate court on issues No. 3,4 and 7B and for maintaining and restoring the decree of the trial Court, on the basis of these grounds, of ejectment pleaded and pressed by the landlords as well. Learned counsel for the appellants supported the findings of the first appellate Court on issues Nos. 3, 4 and 7B in his reply to cross-objections. It was plaintiffs' case that duration of tenancy of Phool Chand was for 10 months and it determined by effluxion of time on January 14, 1964 and in any event by its determination by notice to quit on December 18, 1967 and issue No. 5 pertaining to it was decided by the trial Court in favour of the plaintiffs. Findings on issue No. 5 given by the trial Court were neither challenged by the appellants before the first appellate Court and nor before this Court. Section 3 (vii) of the Act defined the term "tenant" and the definition of this term, as it stood upto the death of Phool Chand on June 15, 1973, read as under- "Tenant" means the person by whom or on whose account or behalf rent is, or, that for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act." Thus, the term "tenant" upto the death of Phool Chand on June 15, 1973 and even upto the time the Act was amended in 1975 meant and included both the contractual tenant as well as the statutory 'tenant'. Phool Chand was the person who was continuing in possession of the premises in suit after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of the Act and was statutory tenant in any event from December 18, 1967 till his death on June 15, 1973. ;