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Rajasthan High Court · body

2010 DIGILAW 1774 (RAJ)

Oriental Insurance Co. Ltd. v. Smt. Madhu Mogra

2010-10-25

AJAY RASTOGI

body2010
JUDGMENT 1. - Instant petition has been filed by the petitioner-defendant assailing the order of the Rent Tribunal dated 4.7.2007 whereby he was evicted from the rented premises and further directed to make payment of rent revised in terms of the order and the appeal preferred was also rejected vide order dated 19.3.2010. 2. Counsel for the petitioner submits that earlier suit for ejectment was filed by the respondent which was dismissed, against which a regular first appeal bearing No. 261/1999 was preferred in this Court, which the respondent withdrew and it was disposed of vide order dated 16.11.2005. 3. The main thrust of the submissions of the counsel for the petitioner is that before the opportunity could be granted by this Court the application for ejectment which was filed by the respondent was not maintainable before the Tribunal. He further submits that the lease deed executed in regard to the property in dispute was for a period of three years and with consent it was extended for a further period of three years and remained in force and in such circumstances, the finding which has been recorded by the Rent Appellate Tribunal is not legally sustainable. 4. The submission made is of no substance for the reason that no such objection was raised by the petitioner defendant before the Rent Tribunal with respect to seeking permission from this Court while withdrawing the regular first appeal filed by the respondent-plaintiff is concerned, the Rent Appellate Tribunal has examined the objection raised by the petitioner and did not find any merit for the reason that he is not entitled to seek protection of Chapters-2 and 3 of the Rent Control Act,2001 and accordingly the respondent-plaintiff served a notice under Section 106 of the Transfer of Property Act and only after expiry of the statutory period, application was filed for eviction before the Rent Tribunal and the earlier proceedings initiated are not at all relevant so far as the proceedings which the respondent-plaintiff initiated against the present petitioner under the provisions of Act of 2001. So far as the submissions made with respect to the enforcement of the lease deed is concerned, copy of which has placed on record as Annex.1, it clearly manifests that it was executed for a period of three years commencing from 1.9.1973 and ending on 31.8.1976 and with a stipulation that after expiry of three years he will have to pay 25% monthly increased rent on the enhanced rent for another period of three years. There is no documentary evidence placed on record that the lease deed was extended after expiry of further period of three years which indisputably expired on 31.8.1979 and thus the respondent-plaintiff served a legal notice under Section 106 of the Transfer of Property Act on 22.8.2003 sent by registered post duly served upon the petitioner on 25.8.2003 and after expiry of this period proceedings were initiated by the respondent-plaintiff under the Act of 2001. Both the Courts have recorded concurrent finding of fact and this Court does not find any manifest error being committed which may call for interference. 5. Counsel for the petitioner lastly prayed that some reasonable time may be granted to handover the vacant and peaceful possession of the rented premises to the respondent-plaintiff. 6. Counsel for the respondent on the other hand submits that time has been provided for handing over the vacant and peaceful possession under the mechanism provided under the Act of 2001. 7. Counsel for the petitioner lastly prayed that some reasonable time may be granted to handover the vacant and peaceful possession of the rented premises to the respondent-plaintiff. 6. Counsel for the respondent on the other hand submits that time has been provided for handing over the vacant and peaceful possession under the mechanism provided under the Act of 2001. 7. Taking note thereof, this Court while upholding the finding under the orders impugned herein considers it appropriate to grant six months time to the petitioner for handing over the vacant and peaceful possession of the rented premises to the respondent-plaintiff and modify the decree to the extent that petitioner will handover the vacant and peaceful possession of the property in question by 30.4.2011 and at the same time will pay the arrears of mesne profits, if there is any, in terms of the decree, within two months and shall also continue to pay the monthly mesne profits on or before 10th of each succeeding month, however, if petitioner commits any default in regard to payment of arrears of mesne profits or commits two consecutive defaults in payment of monthly mesne profits, the respondent shall be at liberty to file application for execution prior thereto and if the petitioner fails to handover the vacant and peaceful possession of the property in question on or before 30.4.2011, the respondent will be at liberty to file misc. application before this Court in regard to alleged deliberate disobedience, if any committed by the petitioner of the judgment impugned herein. 8. With these directions/observations, the petition stands disposed of.Petition disposed of. *******