Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 708 (RAJ)

Shyam Sunder Bohra v. Ankit Seth

2010-03-29

SANGEET LODHA

body2010
JUDGMENT 1. - By The Court-This writ petition is directed against Order dated 18.02.2010 passed by the rent Tribunal, Bhilwara in Rent case No. 85/03 whereby an application preferred by the petitioner questioning admissibility in evidence of award dated 10.12.2004 passed by the permanent lok adalat, bhilwara in case no. 152/04, on the ground of deficiency of stamp, has been rejected. 2. The facts germane to the controversy involved are that Shri Dharmdev, the grand father of respondent/applicant filed an application of eviction of the petitioner/non applicant from the suit premises on the ground of reasonable herein. 3. During the pendency of the aforesaid application seeking eviction of the petitioner from the suit premises, the respondent filed a suit for partition against his grand father and father, in respect of the disputed property on 25.11.2004 before the permanent lok adalat bhilwara. The notices were issued on 04.12.2004 and the matter was compromised between the parties on 10.12.2004 where under the premises in question was agreed to be given to the respondent herein. Accordingly, the permanent lok adalat passed the award dated 10.12.2004 in terms of the compromise arrived at between the parties. 4. On the strength of the award, dated 10.12.2004, the respondent herein preferred an application for his substitution as the applicant in the main application seeking eviction of the petitioner form the premises in question, which was allowed by the rent Tribunal and the respondent herein stands substituted as the applicant in the matter. The said Order has attained finality. 5. During the course of evidence, the petitioner raised an objection before the rent Tribunal that since the award dated 10.12.2004 (Ex.11) is unregistered therefore, the same is inadmissible in evidence. The Learned Tribunal observed that in the application for eviction of the tenant from the suit premises, the question of the title or ownership over the disputed premises is not required to be gone into but the liabilities arising in the matter have to be determined therefore, the document produced for collateral purposes cannot be held to be inadmissible in evidence. Accordingly, the objection raised by the petitioner was rejected by the learned Tribunal vide Order dated 20.01.2010. 6. The validity of the aforesaid Order was assailed by the petitioner before this Court by way of a writ petition (no. Accordingly, the objection raised by the petitioner was rejected by the learned Tribunal vide Order dated 20.01.2010. 6. The validity of the aforesaid Order was assailed by the petitioner before this Court by way of a writ petition (no. 993/10) which was dismissed as withdrawn vide Order dated 16.02.2010 giving liberty to the petitioner to make an appropriate application before the Tribunal as prayed for. 7. Thereafter, the petitioner preferred an application before the Tribunal under Section 39 read with Section 2 (xx) of the Rajasthan Stamp Act, 1998 (in short "the Act") contending that unstamped award dated 10.12.2004 is not admissible in evidence for any purpose till the stamp duty as provided under Section 41 and 42 of the Act is paid. 8. The application has been rejected by the Tribunal for the parity of the reasons assigned vide Order dated 20.01.10 for rejection of the petitioner's objection regarding the admissibility of the said document being unregistered. 9. It is contended by the learned counsel for the petitioner that it is undisputed fact on record that the respondent has been substituted as applicant in the main application before the Tribunal on the basis of the award dated 10.12.2004 as he had become owner of the disputed property, therefore, it cannot be disputed that the award dated 10.12.2004 has been filed by the respondent before the Tribunal to show his title over the disputed property and the same cannot be treated to be for collateral purposes, the learned counsel submitted a conjoint reading of the provisions of Sections 2(xx), 39, 41 and 42 of the Act makes it abundantly clear that final Order passed by any civil Court in a suit for partition is treated to be an instrument of partition and the same is required to be compulsorily stamped. Accordingly, it is submitted by the learned that the said document is not admissible in evidence even for collateral purpose. In support of his contention, learned counsel has relied upon decision of madras High Court in the matter of Jagadeesh v. B.M. Billan, AIR 2007 Madras 334 , a decision of Delhi High Court in the matter of Rakesh kumar Gupta & Anr. In support of his contention, learned counsel has relied upon decision of madras High Court in the matter of Jagadeesh v. B.M. Billan, AIR 2007 Madras 334 , a decision of Delhi High Court in the matter of Rakesh kumar Gupta & Anr. v. Umesh Kumar Gupta & Anr., AIR 2008 Delhi 73 and a decision of Andhra Pradesh High Court in the matter of Y. Laxmi Prasanna v. Y. Narasayya & Anr., AIR 1975 Andhra Pradesh 91 and a decision of the Hon'ble Supreme Court in Avinash Kumar Chouhan v. Vijay Krishna Mishra, JT 2009 (1) SC 656 . 10. On the other hand. Learned counsel appearing on behalf of the respondent submitted that a petition for eviction of a tenant, the Tribunal is not required to go into the question of title over the suit premises ana the document has not been produced by the respondent so as to establish his title but only to show that on account of the award passed by permanent lok adalat as aforesaid, the respondent has become landlord of the premises in question let out to the petitioner/tenant. Learned counsel submitted that the respondent already stands substituted as applicant in the main application pending consideration before the Tribunal in the capacity of the landlord and it is always open for the petitioner to contend that he is not tenant of the respondent/landlord and obviously, if any such question is raised, the same shall be determined by the Tribunal in accordance with law. Learned counsel submitted that if the petitioner is aggrieved by the Order impugned, the, it is always open for him to assail the validity thereof before the appellate Tribunal him. Learned counsel submitted that if the petitioner is aggrieved by the Order impugned, then, it is always open for him to assail the validity thereof before the appellate tribunal while assailing the validity of the final Order if any, passed by the Tribunal against him. Learned counsel submitted that on the facts and in the circumstances of the case, the view taken by the Tribunal while rejecting the application preferred by the petitioner is a possible view taken by the matter and therefore, at this stage, the question of interference by this Court in exercise of its supervisory jurisdiction under Art. 227 of the Constitution of India does not arise. In support of his contention the learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matter of Shiv Shakti co-op. Housing Society, Nagpur v. M/s. Swaraj Developers & Anr., AIR 2003 SC 2434 , Sadhana Lodh v. National Insurance Co. Ltd. & Anr., AIR 2003 SC 1561 , Shayam Sunder Bohra v. Ankit Seth (Sangeet Lodha, J.), 1575 2003 (3) CDR 590 (SC) and Girdharibhai v. Saiyed Mohamad Mirasaheb Kadri, AIR 1987 SC 1782 . 11. I have Considered the rival submissions and perused the material on record. 12. It goes without saying that a contract of tenancy between landlord and tenant must exist before the landlord can file an application for eviction under the provisions of Act of 2001 respectively. In Order to appreciate the issue involved, it will be appropriate to reproduce the provisions of Sections 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 up to 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 up to his death." 13. 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 die rent or the entitlement to receive the rent, The definition of "landlord" as set out under Section 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. 14. Thus, in considered opinion of this Court, on the facts and in the circumstances of the case, the view taken by the Tribunal while deciding the application preferred by the petitioner is a possible view of the matter and if according to the petitioner the same suffers from any infirmity or illegality, the validity there of can always be questioned by him before the rent appellate Tribunal while assailing the final Order, if any, adverse to his rights is passed by the Tribunal while deciding the rent application. 15. In Sadhatta Lodh's case (supra), the Hon'ble Supreme Court while considering the scope of interference by the High Court in exercise of the supervisory jurisdiction under Art. 227 of the constitution of India observed:- "7. The supervisory jurisdiction conferred on the High Courts under Art. 227 of the constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law, In exercising the supervisory power under Art. 227 of the Constitution to review or re-weight the evidence upon which the inferior Court or Tribunal purports to have passed the Order or to correct errors of law in the decision." 16. For the aforementioned reasons, in considered opinion of this Court, the Order impugned passed by the Tribunal does not suffer from any jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Art. 227 of the constitution of India. 17. For the aforementioned reasons, in considered opinion of this Court, the Order impugned passed by the Tribunal does not suffer from any jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Art. 227 of the constitution of India. 17. In the result, the writ petition fails, it is hereby dismissed. No. Order as to costs.Writ Petition Dismissed. *******