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2008 DIGILAW 696 (RAJ)

Angrej Singh v. Kanta Devi

2008-03-05

SANGEET LODHA

body2008
JUDGMENT 1. - This writ petition is directed against order dated 13.9.07 passed by the Rent Tribunal, Bikaner , whereby applications dated 17.10.06 and 26.9.06, preferred by the petitioner landlord, seeking leave to amend the original application and prayer for review of order dated 13.9.06, declining framing of an additional issue, have been rejected. 2. The brief facts relevant to the controversy involved in the present writ petition are that the petitioner preferred a suit (No.366/99) for eviction of the respondent from the premises in question inter alia on the ground of default in payment of rent in terms of Section 13(1)(a) of the Rajasthan Premises(Control of Rent and Eviction) Act, 1950(in short "the Act of 1950"hereinafter) before the Additional Civil Judge(J.D.) No.3, Bikaner. The amount of rent payable was provisionally determined by the learned trial court in terms of Section 13(3) of the Act of 1950,vide order dated 6.3.03. However, after coming into force of Rajasthan Rent Control Act, 2001( in short "the Act of 2001" hereinafter), on 25.9.03, the suit was withdrawn by the petitioner in terms of Section 32 (3) of the Act of 2001 with liberty to file a petition under and in accordance with the provisions of the Act of 2001. 3. On 22.12.2003, the petitioner filed a petition u/s 9(1) of the Act of 2001 before the Rent Tribunal, Bikaner for eviction of the respondent from the shop in question on various grounds but, not on the ground of default in payment of rent. The respondent has filed a reply to the petition and the suit is being contested by him. On the basis of the pleading of the parties, the learned Tribunal framed the issues and parties have led their evidence. 4. At this stage, the petitioner preferred an application under Sections 21(3)/32(1)(b) of the Act of 2001 read with Order 14 Rules 1, 3, 5 and Section 151 CPC, praying for framing of an additional issue in the following terms:- " vk;k izfroknh fnukad 25-9-2003 mijkar fdjk;k tek u djokus ij fMQkWYVj gks x;k gSA " The application was preferred on the ground that the respondent has admitted in his statement during the trial that he has not paid the rent of the premises after 25th September, 2003. According to the petitioner, even after coming into force of the Act of 2001, the rights accrued under the Act of 1950 are not extinguished and on account of non payment of rent, the respondent has become defaulter, therefore, in terms of Section 13(5) of the Act of 1950, his defence against eviction deserves to be struck out. The learned Tribunal arrived at the finding that the petitioner having withdrawn the suit preferred under the provisions of the Act of 1950 after coming into force of the Act of 2001 , he cannot claim benefit said to have been accrued on account of any order passed in the earlier suit. Accordingly, the application preferred by the petitioner was rejected by the learned Tribunal vide order dated 13.9.06. Thereafter, the petitioner preferred an application dated 26.9.06 for review of order dated 13.9.06, which stands rejected vide impugned order dated 13.9.07.During the pendency of the application for review of order dated 13.9.06, the petitioner preferred yet another application dated 17.10.06 for amendment of the rent application, seeking leave to incorporate an additional ground for eviction of the respondent from the premises in question, on the strength of order dated 6.3.03 passed in the earlier suit. According to the petitioner since, the respondent has made default in payment of rent determined provisionally u/s 13(3) of the Act of 1950 in the earlier suit, therefore, in terms of Section 13(5) , the defence of the tenant against the eviction deserves to be struck out.After due consideration, the learned Tribunal found that on the basis of non payment of the rent determined provisionally under the provisions of the Act of 1950,the defence of the respondent against the eviction in proceedings under the Act of 2001 cannot be struck out. The learned Tribunal also observed that so far as the decree of eviction on the ground of default in payment of rent is concerned, the provisions incorporated in the Act of 2001 are different than the provisions existing in the Act of 1950. The learned Tribunal opined that the petitioner having withdrawn the suit , even , no right had accrued to the petitioner in the earlier suit inasmuch as the defence of the respondent had never been struck out by the trial court in terms of Section 13(5) of the Act of 1950. The learned Tribunal opined that the petitioner having withdrawn the suit , even , no right had accrued to the petitioner in the earlier suit inasmuch as the defence of the respondent had never been struck out by the trial court in terms of Section 13(5) of the Act of 1950. Accordingly, the application of the petitioner seeking amendment of the original application as aforesaid has also been rejected by the learned Tribunal by impugned order dated 13.9.07. Hence, this petition at the instance of petitioner landlord. 5. It is contended by the learned counsel for the petitioner that since the respondent has failed to comply with the order dated 6.3.03 passed by the learned trial court in the earlier suit under the provisions of the Act of 1950, therefore, he is liable to be evicted from the premises in question. The learned counsel contended that even after repeal of the Act of 1950 by the Act of 2001, the rights accrued and the liabilities incurred are not extinguished. The learned counsel urged that when a repeal is followed by a fresh legislation on the same subject, the court would undoubtedly have to look into the provisions of the new Act but, only for the purpose of determining whether they indicate a different intention. According to the learned counsel, the line of inquiry would be not whether the new Act expressly keeps alive old rights and liability but, whether it manifest an intention to destroy them. The learned counsel submitted that the learned Tribunal has not examined the question of law involved in correct perspective which has resulted in manifest injustice to the petitioner. 6. The learned counsel appearing on behalf of the respondent has reiterated the arguments advanced before the learned Tribunal. 7. I have considered the rival submissions and perused the record. 8. It is to be noticed that by virtue of the provisions of subsection (1) of Section 32 of the Act of 2001, the Act of 1950 stands repealed. But, notwithstanding,the repealed as aforesaid, by virtue of provisions of sub-section (3) of Section 32 of the Act of 2001, the petitioner was at liberty to proceed with the suit for eviction preferred by him pending before the Additional Civil Judge(J.D.)No.3, Bikaner. But, notwithstanding,the repealed as aforesaid, by virtue of provisions of sub-section (3) of Section 32 of the Act of 2001, the petitioner was at liberty to proceed with the suit for eviction preferred by him pending before the Additional Civil Judge(J.D.)No.3, Bikaner. However, instead of pursuing the suit pending, the petitioner preferred to withdraw the suit with liberty to file fresh petition in respect of the subject matter of the suit in terms of the provisions of Section 32(3)(a) of the Act of 2001. It is true that notwithstanding the repeal of the Act of 2001 by virtue of the provisions of sub-section 2(b) of Section 32, any right title privilege, obligation or liability acquired or incurred under the Act of 1950 is not affected. But then, the question is as to whether during the pendency of the suit, on account of an order passed by the learned trial Court determining the amount of rent provisionally, in terms of Section 13(3) of the Act of 1950 and default of the respondent in payment thereof, the petitioner has acquired any such right ,which can be enforced in a fresh proceeding under the Act of 2001? 9. Admittedly, in the earlier suit preferred by the petitioner under the Act of 1950, the decree of eviction was sought against the respondent inter alia on the ground of default in payment of the rent in terms of Section 13(1)(a) of the Act of 1950 and accordingly, the amount of rent was determined by the learned trial Court provisionally, in terms of Section 13(3) of the Act of 1950. However, no order was passed by the learned trial Court in terms of Section 13(5) of the Act of 1950 on account of default of the respondent in payment of such amount in terms of sub-section (4) of Section 13 of the Act of 1950. Suffice it to say that the defence of the tenant was not struck out by the learned trial Court during the pendency of the suit which now stands withdrawn by the petitioner. Suffice it to say that the defence of the tenant was not struck out by the learned trial Court during the pendency of the suit which now stands withdrawn by the petitioner. That apart, after withdrawal of the suit as aforesaid in terms of sub-section (3) of Section 32 of the Act of 1950, any order passed by the learned trial Court determining the rent provisionally, also does not survive.It is to be noticed that Section 9(1) of the Act of 2001 envisages default in payment or tender of amount of rent due for a period of four months, as a ground for eviction, but then, there is no provision akin to the provisions of Section 13(3) to 13(5) of the Act of 1950, providing for determination of rent provisionally or striking out the defence on account of non payment of the amount determined provisionally or the monthly rent subsequent thereto, has been incorporated in the Act of 2001, therefore, the question of striking out the defence of the tenant in proceedings for eviction u/s 9 of the Act of 2001 does not arise. Suffice it to say that even if, any such right had accrued to the petitioner during the pendency of eviction proceedings before the trial Court under the Act of 1950 , the same cannot be enforced in fresh eviction proceedings lodged under the provisions of Section 9 of the Act of 2001. Thus, the learned trial Court has committed no error in rejecting the application of the petitioner seeking amendment in the rent application and so also for review of the order dated 13.9.06 rejecting his application for framing of an additional issue. 10. I do not find any error in the order impugned passed by the learned trial Court. Accordingly, the writ petition is dismissed with no order as to costs.Petition dismissed. *******