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Rajasthan High Court · body

2010 DIGILAW 1692 (RAJ)

Jyoti Prakash v. Samast Ganchan Samaj

2010-10-04

SANGEET LODHA

body2010
JUDGMENT 1. - This writ petition is directed against order dated 24.3.2008 passed by the Additional District Judge (F.T.) No. 2, jodhpur in Civil Original Case No. 166/2004, whereby the application preferred by the petitioner/ defendant under Section 151 of Civil Procedure Code, 1908 ('Civil Procedure Code') for declaring order dated 23.8.2005 determining the rent provisionally in terms of provisions of Section 13(3) of The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (in short "the Act") as null and void and so also for cancellation of consequential order dated 26.9.2006 striking out the defence of the petitioner/defendant against eviction in terms of provisions of Section 13(5) of Act, stands rejected. 2. The brief facts relevant to the controversy involved are that the respondent/plaintiff filed a suit against the petitioner/defendant in the year 1987, for eviction from the suit premises, on the ground of default in payment of rent in terms of provisions of Section 13(1)(a) of the Act. The respondent/plaintiff claimed that the petitioner/defendant has defaulted in payment of rent from 10.5.1985. The rent payable was determined provisionally by the Court in terms of the provisions of Section 13(5) of the Act which was deposited by the petitioner/defendant through his counsel. After the trial, the suit for eviction was dismissed by the trial Court vide judgment and decree dated 23.5.2001 giving benefit of the first default to the petitioner/defendant. 3. On 10.2.2002, the respondent/plaintiff filed a fresh suit for eviction on the ground of default in payment of rent inter alia stating that even after determination of the rent in the former suit, the petitioner/defendant has not paid the rent regularly and has committed second default. It was stated that on being , asked, the details of rent deposited, have not been furnished by the petitioner/defendant and since, he has defaulted in payment of rent for a period more than six months therefore, he is habitual defaulter. 4. The suit is being contested by the petitioner/defendant by filing a written statement thereto. The petitioner/defendant has denied the averments made in the plaint regarding the second default in payment of rent. 4. The suit is being contested by the petitioner/defendant by filing a written statement thereto. The petitioner/defendant has denied the averments made in the plaint regarding the second default in payment of rent. It is stated that the petitioner/defendant sent the amount of rent by money order which was not accepted by the respondent/plaintiff and since despite notice, he did not disclose his bank account number therefore, the petitioner/defendant has deposited the rent in the Court under Section 19A of the Act. However, no details of the rent deposited was set out in the written statement filed. 5. Since the suit for eviction was filed on the ground of default in payment of rent in terms of the provisions of Section 13(1)(a) of the Act, the trial Court vide order dated 23.8.2005, determined provisionally the amount of rent to be deposited by the petitioner/defendant in the Court or to be paid to the landlord for the period of default including the period subsequent thereto in terms of the provisions of Section 13(3) of the Act. No proof was produced by the petitioner/defendant in respect of deposit of rent for the period 1.3.1999 to 29.3.2002 therefore, the rent payable for the period of 36 months was determined @ Rs. 135/- and for the period subsequent thereto, the rent was determined provisionally @ Rs. 3,000/- per month in terms of provisions of Section 7(1) of the Act. It was specifically observed by the Court that if the petitioner/defendant has already deposited the rent for the period then, he may furnish the receipts/details of the rent deposited to the plaintiff and in that case he will be entitled for the adjustment of the amount already deposited. 6. The respondent/plaintiff filed an application under the provisions of Section 13(5) of the Act for striking out the defence of the petitioner/defendant against eviction stating that the rent determined by the Court vide order dated 23.8.2005 has not been deposited within the stipulated period. The petitioner/defendant filed an application under Section 151 Civil Procedure Code with the prayer to direct the plaintiff to disclose his bank account number to enable him to deposit the arrear of rent, else for appropriate order to deposit the rent in the Court. 7. The petitioner/defendant filed an application under Section 151 Civil Procedure Code with the prayer to direct the plaintiff to disclose his bank account number to enable him to deposit the arrear of rent, else for appropriate order to deposit the rent in the Court. 7. After due consideration of the material on record, the Court observed that after determination of the rent, vide order dated 23.8.2005, the rent has been paid by the petitioner/defendant to the counsel appearing for the plaintiff up to 31.3.2006. The amount of rent sent,by money order on 14.4.2006 was returned undelivered and, thereafter, the rent has not been paid. The Court observed that after the death of the counsel appearing for the respondent/plaintiff, it was duty of the petitioner/defendant to pay the regular monthly rent to the respondent/ plaintiff and if the rent was not being accepted by the respondent/plaintiff then, the same should have been deposited in the Court through tender. In this view of the matter, the Court arrived at the finding that the defendant has committed second default by not depositing the rent for the period subsequent to 31.3.2006. Accordingly, vide order dated 26.9.2006, the defence of petitioner/defendant , against eviction was ordered to be struck out in terms of provisions of Section 13(5) of the Act. 8. Aggrieved by order dated 26.9.2006, striking out the defence, a miscellaneous appeal preferred by the petitioner also stands dismissed by this Court vide order dated 6.7.2007, therefore, the order dated 26.9.2006 striking out the defence of the petitioner/defendant against eviction has attained finality. 9. However, the petitioner/defendant preferred yet another application under Section 151 Civil Procedure Code, praying that order dated 23.8.2005 passed by the trial Court determining the rent provisionally be declared null and void and the consequential order dated 26.9.2006 striking out the defence of the petitioner/defendant against the eviction may also be cancelled. The prayer as aforesaid was made on the ground that order dated 23.8.2005 was obtained by the respondent/plaintiff by committing fraud and therefore, the same is void ab initio. The petitioner/defendant submitted that the rent for the period 9.1.2001 to 8.1.2002 was deposited by the petitioner/defendant through his counsel Mr. The prayer as aforesaid was made on the ground that order dated 23.8.2005 was obtained by the respondent/plaintiff by committing fraud and therefore, the same is void ab initio. The petitioner/defendant submitted that the rent for the period 9.1.2001 to 8.1.2002 was deposited by the petitioner/defendant through his counsel Mr. A.R. Mehta during the pendency of the former suit and this fact, was within the knowledge of the respondent/plaintiff inasmuch as, the present suit on behalf of the plaintiff has been presented by the same counsel who was appearing on behalf of the petitioner/defendant in the former suit. It was further submitted that the rent for the aforesaid period was deposited on behalf of the petitioner/defendant by the counsel filling the tender in his own hand writing, who later appeared on behalf of the respondent/plaintiff in the present suit, therefore, it cannot be said that the plaintiff was not aware of the deposit of the rent in the Court. Accordingly, it was contended on behalf of the petitioner/defendant before the Court below that the order based on fraud is nullity and deserves to be ignored and therefore, the order determining the rent has to be treated to be non est and the subsequent order dated 26.9.2006 striking out the defence of the petitioner/defendant against eviction deserves to be cancelled. 10. The application was contested by the respondent/plaintiff by filing a reply thereto. It was stated on behalf of the respondent/plaintiff that the plaintiff is a social organisation wherein the office bearers have changed and therefore, the office bearer who has filed the present suit had no knowledge that in the previous suit, Mr. A.R. Mehta was the counsel for the petitioner/defendant. It was categorically stated that respondent/plaintiff has no knowledge about the deposit of rent by the petitioner/defendant during the pendency of the former suit for the period alleged. It was submitted that the order dated 23.8.2005 was passed by the Court after due consideration of the material on record and therefore, the same cannot be faulted with. It was further contended that the order dated 23.8.2005 and 26.9.2006 have attained finality and therefore, the Court has no jurisdiction to reconsider or review its own order by invoking provisions under Section 151 Civil Procedure Code. 11. It was further contended that the order dated 23.8.2005 and 26.9.2006 have attained finality and therefore, the Court has no jurisdiction to reconsider or review its own order by invoking provisions under Section 151 Civil Procedure Code. 11. After due consideration of the rival submissions, the Court below noticing the facts and circumstances of the case arrived at the finding that it cannot be said that the order-determining the rent provisionally has been obtained by the plaintiff by committing fraud. The Court observed that in the written statement filed and thereafter, up to the stage of determination of the rent, the petitioner/defendant had never apprised the Court that the rent for the period 9.1.2001 to 8.1.2002 has been deposited on his behalf by tender in question. The Court observed that the appeal preferred by the petitioner/defendant against the order dated 26.9.2006 stands dismissed by this Court therefore, the order stands merged in the appellate order and the same has attained finality therefore, it has no jurisdiction to review the same. The Court opined that the petitioner/defendant who has slept over his rights is not entitled for any relief by invoking inherent jurisdiction of the Court under Section 151 Civil Procedure Code. Accordingly, the application has been rejected. Hence, this petition. 12. It is contended by the learned counsel for the petitioner/defendant that the Court below has seriously erred in observing that since the petitioner/ defendant is an institution, its office bearers may not have knowledge regarding the payment of rent for the period in dispute. Learned counsel submitted that admittedly, the rent for the period 9.1.2001 to 8.1.2002 was deposited by then counsel of the petitioner/defendant by filing a tender in his own hand writing, who was the counsel appearing on behalf of the respondent/plaintiff in the present suit therefore, how it can be possibly said that the plaintiff was not aware of the fact of deposit of the rent in the Court. Learned counsel submitted that the order impugned passed by the Court below ignoring this vital aspect of the matter is not sustainable in eye of law. Learned counsel submitted that it is settled law that any order based on fraud is nullity and deserves to be ignored. Learned counsel submitted that the order impugned passed by the Court below ignoring this vital aspect of the matter is not sustainable in eye of law. Learned counsel submitted that it is settled law that any order based on fraud is nullity and deserves to be ignored. In this regard, learned counsel relied upon a decision of the Hon'ble Supreme Court in the matter of S.P. Chengalvaraya Naidu (dead) by LR's v. Jagannath (dead) by LR's, AIR 1994 SC 853 . Learned counsel submitted that it is fundamental principle of judicial Court that no party should suffer on account of fraud being played by other party to the proceedings, therefore, the true facts having been brought on record, it was the duty of the Court below to cure the defects crept in the order on account of false pleadings on the part of the respondent/plaintiff. Learned counsel submitted that the power under Section 151 Civil Procedure Code can always be invoked by the Court to do substantial justice and prevent the abuse of the process of the Court. Learned counsel submitted that on account of deliberate false statement on the part of the respondent/plaintiff, the petitioner/defendant has been put in such a situation that his right to defence stands taken away altogether and therefore, for the sake of justice, the application preferred by the petitioner/defendant invoking inherent jurisdiction of the Court deserves to be allowed as prayed for. 13. On the other hand, learned counsel appearing for the respondent/plaintiff submitted that on the basis of the knowledge of the counsel who was appearing on behalf of the petitioner/defendant in the former suit and on behalf of the respondent/plaintiff in the present suit, it cannot be presumed that the respondent/plaintiff had knowledge about deposit of the rent by the petitioner/defendant for the period in question as alleged. Learned counsel submitted that the allegation of fraud on the part of the respondent/plaintiff as alleged by the petitioner/defendant is ex facie baseless inasmuch as, at no stage of the proceedings, the petitioner/defendant had disclosed before the Court below that the rent as alleged was deposited by him during the pendency of the earlier suit. Learned counsel submitted that the allegation of fraud on the part of the respondent/plaintiff as alleged by the petitioner/defendant is ex facie baseless inasmuch as, at no stage of the proceedings, the petitioner/defendant had disclosed before the Court below that the rent as alleged was deposited by him during the pendency of the earlier suit. Learned counsel submitted that even by passing the order dated 23.8.2005 determining the rent provisionally, the petitioner/defendant was given an opportunity to furnish the details of the rent deposited to the respondent/plaintiff within a period of 15 days, however, no such information was supplied by the petitioner/defendant to the respondent/plaintiff. Learned counsel submitted that even in the written statement filed, neither the details of the rent deposited as aforesaid are set out nor there is any allegation of fraud being committed by the respondent/plaintiff. Accordingly, it is submitted by the learned counsel that the finding arrived at by the Court below that no fraud can be attributed to the respondent/plaintiff, cannot be faulted with. Learned counsel submitted that even otherwise, the defence of the plaintiff has been struck out for non deposit of the rent determined provisionally for the period subsequent to 31.3.2006 and therefore, nothing turns on the question that the rent was deposited by the petitioner/defendant for the period 9.1.2001 to 8.1.2002, on 31.3.2001. Accordingly, learned counsel submitted that the Court below has committed no error in refusing to exercise the power under Section 151 Civil Procedure Code. 14. I have considered the rival submissions and perused the record. 15. There is no quarrel with the proposition that the order obtained by playing fraud upon the opposite party or the Court can be reviewed/recalled by the Court in exercise of inherent powers. But then, the question comes for consideration of this Court in the present petition is as to whether the order sought to be declared null and void by the petitioner/defendant by invoking inherent jurisdiction of the Court under Section 151 Civil Procedure Code, was obtained by the respondent/plaintiff by playing fraud or misrepresentation. 16. Indisputably, the respondent/plaintiff in the plaint filed before the trial Court has stated that the petitioner/defendant has not paid the rent regularly subsequent to the determination of rent in the previous suit and thus, committed default. It has also been pleaded that the petitioner/defendant did not furnish the details regarding the rent deposited in the Court. 16. Indisputably, the respondent/plaintiff in the plaint filed before the trial Court has stated that the petitioner/defendant has not paid the rent regularly subsequent to the determination of rent in the previous suit and thus, committed default. It has also been pleaded that the petitioner/defendant did not furnish the details regarding the rent deposited in the Court. In reply to the averments made in the plaint as aforesaid, in the written statement filed, all that has been stated by the petitioner/defendant is that he has not committed the second default and he is not a habitual defaulter. No details regarding the payment of rent subsequent to the determination of the rent provisionally in the former suit, are set out in the written statement filed. To the contrary, it is stated in the written statement that since the plaintiff did not accept the rent, the same was sent by money order which was also not accepted therefore, a notice was given to him to disclose the bank account number and since even after the service of the notice, the bank account number was not disclosed therefore, the rent has been deposited in the Court under Section 19A of the Act. However, the details of rent deposited under Section 19A of the Act are not set out in the written statement. 17. Even thereafter, when the matter was taken up by the Court for determination of the rent provisionally for the period of default and subsequent thereto, the petitioner/defendant did not care to furnish the details of the rent already deposited. Consequently, in absence of any proof regarding deposit of the rent, the Court determined the arrear of rent payable for a period of three years i.e. from 1.3.1999 to 29.2.2002 and further, the rent payable for the subsequent period was determined in terms of the provisions of Section 7(1) of the Act. Even while passing the order, determining the rent provisionally, on the statement being made on behalf of the petitioner/defendant that the rent for the period 1.3.1999 to 29.2.2002 has already been deposited, the Court specifically observed that if the petitioner/defendant furnishes the receipts showing the deposit to the respondent/plaintiff, he will be entitled for the adjustment of the amount deposited and the respondent/plaintiff shall be at liberty to withdraw the amount deposited. It is not disputed before this Court that no details or the receipts of rent deposited were furnished by the petitioner/defendant to the respondent/plaintiff within the stipulated period or thereafter. 18. Strangely enough, even at the time of consideration of the application preferred by the respondent/plaintiff for striking out of the defence of the respondent/plaintiff against eviction for default in depositing the amount of rent in terms of the order dated 23.8.2005, the petitioner/defendant did not care to brought it to the notice of the Court and by producing the receipts, showing that the rent for the period as alleged, stands deposited. 19. The matter does not end at this. The validity of the order dated 23.9.2006, striking out the defence against eviction was challenged by the petitioner/defendant before this Court by way of miscellaneous appeal but, even before this Court it was not the stand of the petitioner/defendant that the Court below has erred in passing the order impugned determining the provisional rent or striking out of the defence inasmuch as, the rent already stands deposited by the petitioner/defendant. Thus, it appears that even the respondent/plaintiff was not aware about the correct factual position regarding the rent already deposited else, he would have furnished the necessary details before the Court at appropriate stage so as to avoid the payment of rent for the disputed period twice over so also the risk of striking out of the defence against eviction for default in payment of rent. 20. As a matter of fact, the allegations of fraud are levelled by the petitioner/ defendant only on the premise that the counsel appearing for the petitioner/defendant in the former suit who had deposited the rent in the Court on behalf of the petitioner/defendant, was the counsel appearing on behalf of the respondent/plaintiff in the present suit. In considered opinion of this Court, merely because, the rent was deposited on behalf of the petitioner/defendant by the counsel appearing for the respondent/plaintiff in the present suit, who was the counsel for the defendant in the previous suit, it cannot be inferred or presumed that the respondent/plaintiff had knowledge about the deposit of the rent as alleged during the pendency of the former suit. There cannot be any presumption of the knowledge to the respondent/plaintiff and therefore, it cannot be said that the respondent/plaintiff is guilty for committing fraud or misrepresentation. There cannot be any presumption of the knowledge to the respondent/plaintiff and therefore, it cannot be said that the respondent/plaintiff is guilty for committing fraud or misrepresentation. In this view of the matter, in considered opinion of this Court, the finding arrived at by the Court below on this aspect of the matter, does not suffer from any infirmity, illegality or jurisdictional error. 21. There is yet another aspect of the matter. The present suit has been filed by the respondent/plaintiff for eviction on the ground of default in terms of provisions of Section 13(1)(a) of the Act. Indisputably, since the suit filed is on the ground of default in terms of provisions of Section 13(3) of the Act, the Court was under an obligation to determine the amount of rent to be deposited in the Court or paid to the respondent/plaintiff by the petitioner/defendant provisionally, after hearing them and on the basis of the material on record, for the period of default and subsequent thereto. It was open for the, petitioner/defendant to furnish the detail of the amount of rent already deposited so as to claim adjustment. it is to be noticed that the details with regard to deposit of the rent for the period subsequent to 29.3.2002 was furnished by the petitioner/defendant which has been specifically noted by the Court in the order dated 23.8.2005 determining the rent provisionally. Moreover, admittedly, the defence of the petitioner/defendant against the eviction has been struck out by the Court vide order dated 23.9.2006 in terms of provisions of Section 13(5) of the Act for the default in payment of rent for the period subsequent to 31.3.2006. In this view of the matter, so far as striking out of the defence against eviction is concerned, the fact that the petitioner had deposited the rent for the period 9.1.2001 to 8.1.2002, on 31.1.2001 has no bearing, inasmuch as, in terms of the provisions of Section 13(4), the petitioner/defendant was under an obligation to deposit monthly rent subsequent to period up to which determination has been made, by the 15th of each succeeding month or within the time extended by the Court, which admittedly, he has failed to deposit after 31.3.2006. 22. 22. In view of the discussion above, in considered opinion of this Court, the order impugned passed by the Court below does not suffer from any jurisdictional error warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 23. In the result, the writ petition fails, it is hereby dismissed.No order as to costs.Petition dismissed. *******