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2009 DIGILAW 562 (RAJ)

Nanak Ram Lalwani v. Gajendra

2009-02-20

A.M.KAPADIA, SANGEET LODHA

body2009
JUDGMENT 1. - This special appeal is directed against order dated 8.12.08 passed by the learned Single Judge of this Court whereby a writ petition preferred by the appellant against order dated 31.5.06 passed by Rent Control Tribunal, Udaipur in Rent Case No. 53/06 rejecting an application preferred by the appellant under Order 11, Rule 14 of Civil Procedure Code, 1908( in short "CPC" hereinafter) read with Section 21 of the Rajasthan Rent Control Act,2001 (in short "the Act of 2001" hereinafter), stands dismissed. 2. The respondent filed an application u/s 9 of the Act of 2001 for eviction of the appellant from the disputed shop on the ground of reasonable bona fide necessity. The application is being contested by the appellant by filing a reply thereto. It is submitted that the appellant has raised a preliminary objection with regard to maintainability of the petition on the ground that the respondent is not owner of the property. According to the appellant, the shop in question was in the ownerships of late Shri Utsav Lal Sharma and after his death, in the ownership of his son Shri Shanti Swaroop. Thereafter, Shri Shanti Swaroop sold the shop to Smt. Chosar Devi. It is contended that since the respondent is not the owner of the shop in question, therefore, the question of his bona fide and personal necessity as landlord does not arise. In the list of document filed alongwith the reply, the appellant has relied upon a sale deed executed by Shri Shanti Swaroop in favour of Smt. Chosar Devi, applicant Shri Prakash Chand and Shri Roshan Lal in the year 1974. 3. . On the basis of the pleading of the parties, the Rent Tribunal has framed the issues, wherein issue No. 2 framed is as to "whether the applicant (respondent herein) is not the owner of the disputed premises?". 4. The appellant preferred an application under Order 11, Rule 14 of CPC read with Section 21 of the Act of 2001 for summoning the sale deed dated 21.6.74 executed by Shri Shanti Swaroop in favour of Smt. Chosar Devi regarding eastern side of the land in dispute and so also the sale deed dated 21.6.74 executed by Shri Shanti Swaroop in favour of Shri Roshan Lal and Gajendra whereby the western side of the property in dispute was sold to them. The application preferred as aforesaid has been rejected by the Rent Tribunal on the ground that in the matter of eviction of a tenant from the suit premises, the question of landlord's title over the suit premises cannot be gone into by the Tribunal therefore, it is not necessary to direct the landlord to produce the document with regard to his title over the shop in question. The Rent Tribunal opined that if the original applicant, the respondent herein, fails to prove the relationship of landlord and tenant then obviously, the application for eviction of the tenant, the appellant herein, from the shop in question is bound to fail. 5. It is contended by the learned counsel that the appellant has taken a specific stand before the Rent Tribunal that the respondent is not the owner of property and therefore, the application for eviction preferred on the ground of his bona fide and personal necessity is not maintainable and accordingly, in this regard a specific issue has already been framed therefore, the Rent Tribunal was not justified in rejecting the application preferred by the appellant seeking direction against the respondent to produce the documents. 6. We have considered the submission of the learned counsel and perused pleading of the parties before the Rent Tribunal and other material on record. 7. It goes without saying that a contract of tenancy between landlord and tenant must exist before the landlord can file a suit for eviction under the provisions of Act of 2001. The words "landlord" and "tenant" stand defined under Section 2(c) & 2(i) of the Act of 2001 respectively. 7. It goes without saying that a contract of tenancy between landlord and tenant must exist before the landlord can file a suit for eviction under the provisions of Act of 2001. The words "landlord" and "tenant" stand defined under Section 2(c) & 2(i) of the Act of 2001 respectively. In order to appreciate the issue involved, it will be appropriate to reproduce the provisions of Section 2(c) & 2(i) of the Act of 2001, which read as under:- "2(c) "landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent,trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant; 2(i) "tenant" means- (i) the person by whom or on whose account or behalf rent is, or but 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 an order or decree for eviction passed under the provisions of this Act; and (ii) in the event of death of the person referred to in sub-clause(i), (a) in cases of premises let out for residential purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily residing with him in such premises as member of his family upto his death; (b) in case of premises let out for commercial or business purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily carrying on business with him in such premises as member of his family upto his death." 8. A bare perusal of the definition of "landlord" quoted hereinabove makes it abundantly clear that the ownership of the premises is not the essential characteristic of a landlord, rather, it is the receipt of the rent or the entitlement to receive the rent. The definition of "landlord" as set out u/s 2(c) is very wide and it includes in itself even the persons who are not actual landlords in common parlance. The definition of "landlord" as set out u/s 2(c) is very wide and it includes in itself even the persons who are not actual landlords in common parlance. Thus, for the determination of the question of landlord and tenant relationship in a suit for eviction under the provisions of the Act of 2001, the question of title or ownership of the premises is not required to be gone into, but, the questions with regard to the landlord and tenant relationship, their rights and liabilities arising in the matter have to be determined. 9. Adverting to the facts of present case, it is to be noticed that the appellant has not only denied the title of the respondent over the premises, it has even denied the existence of landlord and tenant relationship. Obviously, if the respondent-applicant is not able to establish the landlord and tenant relationship in terms of the provisions of Act of 2001, the application for eviction filed by him is bound to fail. But, if the appellant is occupying the premises as tenant of the respondent landlord then, he has no right to question his title over the premises in the question in suit for eviction and the Rent tribunal is not required to determine the question of title or ownership over the disputed premises. 10. In this view of the matter, in our considered opinion, the Rent Tribunal has committed no jurisdictional error in rejecting the application preferred by the appellant under Order 11, Rule 14 of CPC. In this view of the matter, the order impugned passed by the learned Single Judge dismissing the writ petition does not suffer from any error warranting interference by us in this intra court appeal. 11. At this stage, it is submitted by the learned counsel for the appellant that the appellant may be given liberty to make an appropriate application before the Rent Tribunal for amendment of the issues. In our opinion, on account of the order passed by the learned Single Judge and the order as aforesaid passed by us, the appellant is not precluded from making an appropriate application before the Rent Tribunal for amendment of the issues,if necessary. 12. In the result, the special appeal fails, it is hereby dismissed. No order as to costs.Appeal Dismissed. *******