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2009 DIGILAW 2384 (RAJ)

Hindustan Engineering Co. v. Kailash Chand

2009-11-16

SANGEET LODHA

body2009
JUDGMENT Hon'ble LODHA, J.-This writ petition is directed against order dated 4.5.2009 passed by the Rent Tribunal, Bhilwara in Rent Case No. 6/2001, whereby while rejecting the application preferred by the petitioner for deciding the issue No.3 as preliminary issue, the finding has been recorded that the petition for fixation of rent preferred by the respondent is not barred by time. 2. A suit for fixation of rent preferred by the respondent against the petitioner before the Additional Civil Judge (Junior Division No.1), Bhilwara under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, was withdrawn with liberty file a fresh suit under the provisions of Rent Control Act, 2001 (in short 'Act of 2001'). 3. Thereafter, the respondent preferred a petition under the Act of 2001 before the Rent Tribunal, Bhilwara which is being contested by the petitioner by filing a reply thereto. The petitioner has taken the stand before the Rent Tribunal that in view of the provisions of Sec. 32 of the Act of 2001, the respondent could have filed a fresh petition within a period of 270 days from the date of commencement of the Act of 2001, but it has been filed after the expiry of 270 days, therefore, the same deserves to be dismissed as barred by time. 4. On the basis of the pleadings of the parties as aforesaid, the Rent Tribunal has inter alia framed an issue as to "whether the petition is liable to be rejected as barred by time"? 5. During the pendency of the petition, - the petitioner preferred an application before the Rent Tribunal for deciding the issue No. 3 framed as above as preliminary issue. 6. The application preferred by the petitioner as aforesaid has been rejected by the Rent Tribunal holding that the limitation of 270 days prescribed do not apply to the fresh suit and the same can be filed within the period of limitation at any time. 7. It is contended by the learned counsel for the petitioner that while deciding the application of the petitioner as to whether the issue No.3 being a legal issue deserves to be decided as preliminary issue, the learned Tribunal had no occasion to record the finding that the petition preferred by the 5 respondent is within limitation. 7. It is contended by the learned counsel for the petitioner that while deciding the application of the petitioner as to whether the issue No.3 being a legal issue deserves to be decided as preliminary issue, the learned Tribunal had no occasion to record the finding that the petition preferred by the 5 respondent is within limitation. The learned counsel submitted that no arguments on the said issue were heard by the learned Tribunal and while considering the prayer of the petitioner to decide the issue No. 3 as preliminary issue, the finding as aforesaid has been recorded which in substance decides the said issue itself. 8. In all fairness, the learned counsel for the respondent submitted that while deciding the application the Tribunal should not have recorded the finding on the issue itself. However, the learned counsel submitted that instead of remaining the matter, it will be appropriate that the said issue is decided by this Court after hearing both the parties. 9. In considered opinion of this court, while deciding the application preferred by the petitioner the Tribunal had no occasion to record the finding that the fresh petition under the Act of 2001 can be filed at any time and the limitation of 270 days provided shall not apply to the fresh petition. Obviously, the issue framed has to be decided after consideration of the rival submissions and the Rent Tribunal should not have dealt with the issue in such a cursory manner. This Court do not find any reason for deciding the issue No.3 as preliminary issue and the same can be very well decided by the Tribunal along with the other issues. But in any case, finding recorded by the learned Tribunal in cursory manner while deciding the application preferred by the petitioner cannot be sustained and the same deserves to be set aside. 10. Accordingly, the writ petition is allowed. The order impugned passed by the learned Rent Tribunal is set aside. The application of the petitioner for deciding the issue No.3 as preliminary issue shall stand rejected. The learned Tribunal shall decide the issue No.3 along with other issues after hearing both the parties at the time of final decision in the matter. No order as to costs.