Ramesh Chand Vs. Surya Prasad

Ramesh Chand vs Surya Prasad

Disposition Application dismissed Court Rajasthan Decided May 12, 2004

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Citation: sooperkanoon.com/757149
Court: Rajasthan High Court
Judge: A.C. Goyal, J.
Decided On: May 12, 2004
Case Number: S.B. Civil Second Appeal No. 82 of 2004
Subject: Tenancy
Disposition: Application dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ] Determination as to Juvenile - Appellant was found to have completed the age of 16 years and 13 days on the date of alleged oc...

Key legal issue: Tenancy
Outcome / disposition: Application dismissed
Acts & sections: Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1); Code of Civil Procedure (CPC) - Sections 100

Parties & Advocates

Appellant / Petitioner

Ramesh Chand

Advocate B.L. Mandhana, Adv.

Respondent

Surya Prasad

Advocate J.P. Goyal, Adv.

Legal References

Acts: Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1); Code of Civil Procedure (CPC) - Sections 100
Reported In: RLW2004(3)Raj1945; 2004(3)WLC456

Excerpt

- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 5. the defendant ramesh chand as well as the plaintiff-landlord both filed first appeals and both the appeals were dismissed by learned additional district judge no......defence against eviction under sub-section (5) of section 13 of the act. civil misc. appeal no. 34/2002 preferred by the tenant against this order was also dismissed by learned additional district judge no. 1, alwar on 5.9.2002.8. in view of these facts, learned counsel for the appellant submitted that though the defence against eviction was struck out, the plaintiff was bound to prove the statutory default under section 13(1) (a) of the act. according to learned counsel for the appellant the plaintiff had already filed a suit for fixation of standard rent under section 6 of the act and the trial court determined the provisional standard rent under section 7 of the act on 1.5.1991 @ rs. 50/- per month and the defendant-tenant deposited the entire arrears of rent at this rate from january, 1990 to may, 1991 on 26.5.1991 and thus there was no default in payment of rent. it was also contended that as per section 7 (3) of the act the proceedings of the suit for the recovery of arrears of rent should have been stayed by the trial court upon the payment by the tenant in the court of the total amount due to the landlord on the basis of such provisional rent.9. on behalf of the plaintiff-respondent it was contended that both the courts below have arrived at this conclusion that the defendant-tenant committed default in payment of rent and this is concurrent finding of fact and there is no perversity in the same and no substantial question of law arises in this second appeal and the instant case was for eviction and there was no question of staying the proceedings in view of the earlier suit filed for fixation of standard rent.10. i have considered the rival submissions and the judgments of courts below. admittedly the present suit for eviction was filed on 18.2.1991 with a plea that the defendant-tenant has neither paid nor tendered the amount of rent due from him for 13 months i.e. 1.1.1990 to 31.1.1991 @ rs. 20/- per month. in additional para 4 of the written statement.....

Full Judgment

A.C. Goyal, J.

1. The defendant-tenant Ramesh Chand has preferred this appeal against the concurrent judgment and decree of eviction.

2. Facts in brief giving rise to this second appeal are that the plaintiff-respondent filed a suit for eviction on 18.2.1991 with the averments that Sh. Gangaram (since deceased) is the tenant in suit shop on monthly rent of Rs. 20/- from 24.5.1958. Eviction was sought on grounds of default in payment of rent, reasonable and bonafide requirement of the plaintiff, closure of the shop by the tenant for more than a year, substantial damage to the suit shop, unauthorized possession of Sh. Ramesh Chand and sub-letting to the defendant No. 2 Sh. Tara Chand.

3. Vide written statement while admitting the tenancy all the grounds of eviction were denied.

4. As many as 11 issues were framed. After recording the evidence of the parties the learned Additional Civil Judge (Junior Division) No. 3, Alwar passed the decree of eviction only on the ground of default in payment of rent.

5. The defendant Ramesh Chand as well as the plaintiff-landlord both filed first appeals and both the appeals were dismissed by learned Additional District Judge No. 1, Alwar vide impugned judgment dated 6.12.2003.

6. I have Heard learned counsel for the appellant and the respondent. As per Section 13 (1) (a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) in case the tenant has neither paid nor tendered the amount of rent due from him for six months a decree of eviction shall be passed in favour of the landlord.

7. The Trial Court vide order dated 2.5.1998 determined the arrears of rent provisionally as provided under Section 13 (3) of the Act and directed the tenant to pay the monthly rent subsequent to the date of the determination also. Thereafter, on application of the plaintiff-landlord the Trial Court vide order dated 1.4.2000 passed an order stricking out the defence against eviction under Sub-section (5) of Section 13 of the Act. Civil Misc. Appeal No. 34/2002 preferred by the tenant against this order was also dismissed by learned Additional District Judge No. 1, Alwar on 5.9.2002.

8. In view of these facts, learned counsel for the appellant submitted that though the defence against eviction was struck out, the plaintiff was bound to prove the statutory default under Section 13(1) (a) of the Act. According to learned counsel for the appellant the plaintiff had already filed a suit for fixation of standard rent under Section 6 of the Act and the Trial Court determined the provisional standard rent under Section 7 of the Act on 1.5.1991 @ Rs. 50/- per month and the defendant-tenant deposited the entire arrears of rent at this rate from January, 1990 to May, 1991 on 26.5.1991 and thus there was no default in payment of rent. It was also contended that as per Section 7 (3) of the Act the proceedings of the suit for the recovery of arrears of rent should have been stayed by the Trial Court upon the payment by the tenant in the court of the total amount due to the landlord on the basis of such provisional rent.

9. On behalf of the plaintiff-respondent it was contended that both the courts below have arrived at this conclusion that the defendant-tenant committed default in payment of rent and this is concurrent finding of fact and there is no perversity in the same and no substantial question of law arises in this second appeal and the instant case was for eviction and there was no question of staying the proceedings in view of the earlier suit filed for fixation of standard rent.

10. I have considered the rival submissions and the judgments of courts below. Admittedly the present suit for eviction was filed on 18.2.1991 with a plea that the defendant-tenant has neither paid nor tendered the amount of rent due from him for 13 months i.e. 1.1.1990 to 31.1.1991 @ Rs. 20/- per month. In additional para 4 of the written statement the defendant-tenant came out with a case that the plaintiff filed the suit for fixation of standard rent on 2.1.1990 and also applied for provisional standard rent determination under Section 7 of the Act and thus the defendant was supposed to deposit the rent at the rate determined by the Trial Court and the Trial Court determined the provisional standard rent @ Rs. 50/- per month on 1.5.1991 and thereafter, the defendant deposited the arrears of rent from January, 1990 to May, 1991 on 26.5.1991. It amounts to clear admission of the defendant that rent from 1.1.1990 to 31.1.1991 was due when the suit for eviction was filed by the plaintiff on the ground of default in payment of rent. This submission made by learned counsel for the appellant is true that the court would determine as to whether the defendant-tenant committed default in payment of rent before passing a decree of eviction on the basis of striking out the defence against eviction. In the instant case, both the courts below the arrived at concurrent finding that the defendant-tenant committed statutory default in payment of rent prior to institution of the suit for eviction. Second submission made on behalf of the appellant is also devoid of merit that in view of the pendency of the suit for fixation of standard rent the proceedings of the instant suit filed for eviction and arrears of rent should have been stayed. Thus, no substantial question of law arises in this second appeal.

11. Consequently, this second appeal along with stay application is dismissed at the admission stage.

Same Court & Year Rajasthan · 2004 Same Parties Ramesh Chand vs Surya Prasad Same Subject Tenancy Same Judge A.C. Goyal, J. Acts & Sections Rajasthan Premises (Control of Rent and Eviction) Act, 1950 -...

Tenancy Substantial question of law Written statement finding of fact question of law district judge