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Rajasthan High Court · body

2010 DIGILAW 935 (RAJ)

Gurnam Singh v. Rajasthan Mahila Vidhyalaya Anr.

2010-04-29

SANGEET LODHA

body2010
JUDGMENT 1. - This writ petition is directed against order dated 3.11.09 passed by the Rent Tribunal, Udaipur in Execution case no. 19/09, whereby an application preferred by the petitioners u/s 21 of the Rent Control Act, 2001 (in short "the Act") read with Section 151 of the Civil Procedure Code, 1908 ("CPC") praying for stay of the execution proceedings and revocation of the possession warrant, pending disposal of the objections raised on their behalf resisting the execution of certificate for recovery possession, stands rejected. 2. The respondent no.1 filed an application under Section 9 of the Act for eviction of its tenant M/s. Green Roadways from the commercial premises in question on the ground of reasonable and bona fide necessity. The firm M/s. Green Roadways was impleaded as party to the application through its partner Mr. Krishna Kumar Arora. 3. A reply to the application was filed on behalf of the firm by its partner Mr. Krishna Kumar Arora stating therein that the business of the firm is being carried out by a company established by Gurnam Singh and his brother Jora Singh, the petitioner no.1 & 4 herein and the rent of the premises is also being paid by them. However, it was further averred that the construction over the plot let out was raised by the firm and it was agreed upon between the parties that on premises being vacated, the cost of construction shall be reimbursed by the landlord, the respondent no.1 herein. Accordingly, it was submitted that if the respondent no.1/landlord is ready to reimburse the cost of construction then, the tenant firm has no objection against the decree of eviction being passed. 4. A rejoinder to the reply was filed on behalf of the respondent/landlord wherein it was stated that the two plots were let out by way of two separate rent notes to M/s. Green Roadways and M/s. Green Carrier and Contractor Pvt. Ltd. and, therefore, if M/s. Green Roadways has part with the possession to M/s. Green Carrier & Contractor Pvt. Ltd. then it amounts to sub letting and, therefore, the respondent/landlord is entitled to decree of eviction on the ground of sub letting as well. However, the issue was framed by the learned tribunal only with regard to the reasonable & bona fide necessity of the respondent/landlord. 5. However, the issue was framed by the learned tribunal only with regard to the reasonable & bona fide necessity of the respondent/landlord. 5. The respondent/landlord led its evidence, however, no evidence was led on behalf of the tenant M/s. Green Roadways. On the basis of the unrebutted evidence, the tribunal found the reasonable & bona fide necessity of the respondent/landlord proved and accordingly, while allowing the application the firm M/s. Green Roadways was directed to be evicted from the premises in question vide judgment dated 19.8.08 passed by the tribunal and consequently, a certificate for recovery of possession of the premises in question was issued in favour of the respondent/landlord. 6. It is stated that the petitioners who are the partners of the firm M/s. Green Roadways when came to know about the passing of the order by the tribunal, as aforesaid, when the sate-amin came to the disputed premises for taking possession thereof. In these circumstances, the petitioners filed objections before the Rent Tribunal u/s 21 of the Act read with Order 21 Rules 97 to 101 of Civil Procedure Code resisting the execution of order dated 19.8.08 and certificate for recovery of possession issued in pursuance thereof. The petitioners submitted that the respondent/landlord has obtained order of eviction against the firm M/s. Green Roadways in collusion with its partner Mr. Krishna Kumar Arora, respondent no.1 herein. The objections filed were accompanied by an application u/s 151 CPC praying for stay of the execution proceedings and revocation of the possession warrant. The application for stay stands rejected by the order impugned. Hence, this petition. 7. It is contended by the learned counsel for the petitioners that it was apparent on the face of record that the decree has been obtained by the respondent/landlord in collusion with one of the partner of the firm, respondent no.2 herein. Learned counsel submitted that in the reply filed on behalf of the firm by its partner Mr. Krishna Kumar Arora, it was stated in unequivocal terms that presently, the business of the firm at the disputed premises is being carried out by Jora Singh and his brother Gurnam Singh, the petitioner herein, and the rent of the premises is also being paid by them and therefore, there was no occasion for the said partner of the firm to agree for eviction from the suit premises on the payment of cost of construction. Learned counsel submitted that on account of collusion of the respondent/landlord with Mr. Krishna Kumar Arora, neither the witness produced on behalf of the respondent/landlord was cross examined nor any evidence was led on behalf of the tenant firm M/s. Green Roadways. Learned counsel submitted that it was also specifically mentioned in the reply filed on behalf of the firm that on account of dispute being arisen, the properties of the firm have been divided. Learned counsel urged that ignoring the admitted facts on record, the finding arrived at by the tribunal that the petitioners have not been able to establish prima facie case of fraud and collusion on the part of the partner of the firm, the respondent no.2 herein, is ex facie contrary to record and perverse. 8. Learned counsel submitted that the Rent Tribunal while passing the order impugned has observed that the petitioners in their applications have averred that the firm is having address at two places in Udaipur; one at the disputed premises and the other registered office of the firm at which the summons were served upon the respondent no.2 and it is further observed that since the petitioners themselves admitted having their office at 6-A, Nehru Bazar, Udaipur, they are estopped from agitating the point that the summons in the eviction case were not sent on the address of the firm. Learned counsel submitted as a matter of fact, in the application it was specifically pleaded that the premises on which the summons of eviction case are alleged to be served already stands vacated by the firm long back under the orders of the court of competent jurisdiction. Learned counsel submitted that when the firm was carrying on its business at the disputed premises then where was the occasion for the respondent no.1 to get the summon served at the address alleged to be registered office of the firm. Learned counsel submitted that the facts on the record establish beyond doubt that the order of eviction has been obtained by the respondent/landlord by collusion and fraud on the part of one of the partners of the firm, the respondent no. 2 herein. Learned counsel submitted that the dispute being arrived at between the partners of the firm, the same stands referred for adjudication to the arbitrator and, therefore, it is apparent that the interest of the respondent no. 2 herein. Learned counsel submitted that the dispute being arrived at between the partners of the firm, the same stands referred for adjudication to the arbitrator and, therefore, it is apparent that the interest of the respondent no. 2 is adverse to the firm and other partners. Learned counsel submitted that since the summons were served on one of the partners who was playing fraud with the firm and was in collusion with the respondent no. 1 against the interest of the firm, therefore, as per provisions of Section 24 of the Partnership Act, the service upon the firm cannot be treated to be complete. Learned counsel submitted that while deciding the application for stay, as a matter of fact, the tribunal has recorded the finding in terms that in the objections filed there is no such question involved which requires adjudication after recording the evidence. Learned counsel submitted that while deciding the stay application the tribunal could not have recorded the findings as aforesaid which tentamounts to deciding the objections raised finally. In support of his contention, the learned counsel has relied upon a decision of this court in the matter of M/s. Shiv Shanker Goyal v. Municipal Council Ajmer, AIR 1997 Raj. 176 . Learned counsel submitted that it is settled law that any decree obtained by collusion of fraud on the part of one of the partners of a firm, the other partners can raise objections and get them adjudicated prior to losing possession to the decree holder. In support of his contention, the learned counsel has relied upon the decision of the Hon'ble Supreme Court in the matter of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr., AIR 1997 SC 856 . Accordingly, it is submitted by the learned counsel that the order impugned passed by the tribunal deserves to be quashed and set aside and pending disposal of the objections filed on behalf of the petitioners, the execution of the certificate for recovery of possession deserves to be stayed. 9. Per contra, in the first instance, learned counsel appearing for the respondent no.1 raised a preliminary objection in terms that in view of the availability of remedy of appeal against the order impugned under sub- section (6) of Section 19 of the Act the writ petition preferred by the petitioners is not maintainable. 10. 9. Per contra, in the first instance, learned counsel appearing for the respondent no.1 raised a preliminary objection in terms that in view of the availability of remedy of appeal against the order impugned under sub- section (6) of Section 19 of the Act the writ petition preferred by the petitioners is not maintainable. 10. It is next contended by the learned counsel that the objections filed on behalf of the petitioners in execution proceedings before the tribunal are not maintainable inasmuch as the execution proceedings before the tribunal in terms of the provisions of Section 20 of the Act are summary proceedings and the provisions of Order 21 of CPC have no application to such proceedings. It is submitted that as a matter of fact, the applicability of the provisions of CPC stands specifically excluded by virtue of provisions of sub-section (3) of Section 21 of the Act, therefore, the objections as framed are liable to be rejected on this count alone. 11. Learned Counsel further submitted that a firm can be sued through any of its partners and, therefore, the service of the notice on one of the partner of the firm was sufficient. Accordingly, it is submitted that the objection raised by other partners of the firm regarding the lack of proper service cannot been entertained. Learned counsel urged that the allegations regarding collusion and fraud are not substantiated by any evidence on record and, therefore, the same are liable to be rejected as baseless. It is submitted by the learned counsel that while adjudicating the objections filed resisting the execution of the decree, it is always not necessary to hold a detailed enquiry or to permit the parties to adduce evidence for such determination. In support of his contention, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Silverline Forum Pvt. Ltd. v. Rajiv Trust & Anr., (1998) 3 SCC 723 . Lastly, learned counsel submitted that on account of filing of the objections, the execution proceedings cannot be treated to be stayed automatically and for obtaining the stay order, the necessary requirement as provided under Order 39, Rule 1 & 2 of CPC must be satisfied. Reliance in this regard has been placed on a decision of this court in Lalita v. District Judge & Ors., 2006 DNJ (Raj.) 727 . Reliance in this regard has been placed on a decision of this court in Lalita v. District Judge & Ors., 2006 DNJ (Raj.) 727 . Learned counsel submitted that the petitioners having failed to establish existence of prima facie case, balance of convenience and likelihood of irreparable loss being caused if the stay prayed for is not granted, the learned tribunal has committed no error in refusing to grant the stay prayed for. Learned counsel submitted that the findings arrived at by the learned tribunal cannot be said to be arbitrary, capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. I have considered the rival submissions and perused the material on record. 13. It will be appropriate first to consider the preliminary objection raised on behalf of the respondent no.1 regarding maintainability of the writ petition in view of availability of statutory remedy of appeal u/s 19 of the Act. It is to be noticed that under sub-section (6) of Section 19 the appeal lies to the Appellate Rent Tribunal only against the final orders passed by the Rent Tribunal. Indisputably, the order impugned in the present writ petition is interlocutory order passed by the tribunal on an application preferred by the petitioners for stay of the execution proceedings pending disposal of the objections filed by them resisting the execution of certificate for recovery of possession. In this view of the matter, the objection raised on behalf of the petitioners is devoid of any merit and the same is accordingly, rejected. 14. Undoubtedly, in terms of the provisions of Section 20 of the Act, the execution proceedings in relation to a final order or any other order passed by the tribunal are required to be conducted in summary manner. It is equally true that in the proceedings before the tribunal under the Act, it is not bound to follow the procedure laid down by CPC. But then, sub-section (3) of Section 21 of the Act specifically provides that in conducting the proceedings the tribunal shall be guided by principle of natural justice and subject to other provisions of the Act and the Rules made thereunder, it shall have power to regulate its own procedure. But then, sub-section (3) of Section 21 of the Act specifically provides that in conducting the proceedings the tribunal shall be guided by principle of natural justice and subject to other provisions of the Act and the Rules made thereunder, it shall have power to regulate its own procedure. In considered opinion of this court, while excluding the applicability of the provisions of CPC to the proceedings before the tribunal, the legislature has consciously and purposely incorporated the said provision that the proceedings before the tribunal shall be guided by the principle of natural justice, obviously, for the reason that the observation thereof is considered to be assurance of the justice and fairness. Further, by virtue of provisions of sub-section (3) of Section 21, the tribunal is not bound by the procedure laid down under the CPC but the same does not restrict its authority to adopt the procedure and apply the principle underlying the various provisions of CPC, if for finding out the truth and impart justice between the parties, it is considered necessary to adopt such procedure. Thus, in considered opinion of this court, if any objections are raised against the execution of any final order or any other order passed by the tribunal, the same have to be disposed of by the tribunal, of course, in summary manner, but in consonance with the principle of natural justice. Therefore, the contention of the petitioners that objections raised by the petitioners are liable to be rejected as not maintainable, is also devoid of any merit and deserves to be rejected. 15. Coming to the correctness of the order impugned passed by the tribunal, it is to be noticed that admittedly, the premises in question was let out by the petitioners to the firm M/s. Green Roadways which was sued through its partner Mr. Krishna Kumar Arora. In the reply to the application filed by Shri Krishna Kumar Arora, the respondent not herein on behalf of the firm, it has been specifically mentioned that a dispute having been arisen between the partners of the firm, the same stands referred to the arbitrator. It was further specifically mentioned in the reply to the application filed on behalf of the firm that presently the business of the firm is being looked after by Gurnam Singh and Jora Singh, the petitioners no.1 & 4 herein. It was further specifically mentioned in the reply to the application filed on behalf of the firm that presently the business of the firm is being looked after by Gurnam Singh and Jora Singh, the petitioners no.1 & 4 herein. Notwithstanding the factual position as aforesaid, the partner of the firm Mr. Krishna Kumar agreed to vacate the premises on the cost of construction being reimbursed by the respondent/landlord. Moreover, it has also come on record that the address on which the notices are alleged to be served was not the registered address of the firm at the relevant time inasmuch as, the premises at the address given had already been vacated by the firm under the orders passed by the competent court. Further, it is also not disputed that the firm was carrying on business at the disputed premises at the relevant time, yet, the summons were allegedly served at the premises already vacated by the firm. Thus, on the totality of the facts and circumstances of the case, in considered opinion of this court, the findings arrived at by the tribunal in regard to the prima face case and balance of convenience being not in favour of the petitioners cannot be said to be just and proper. It is pertinent to note that the premises in question is a commercial premises where presently the petitioners are carrying on their business, therefore, obviously, if the petitioners are asked to vacate the premises without disposal of the objections raised by them, they will suffer irreparable loss inasmuch as, it will result in the closure of their business at the premises in question altogether. 16. There is yet another aspect of the matter. The objections raised by the petitioners are yet to be decided by the tribunal and, therefore, while disposing of the stay petition there was no occasion for the tribunal to observe that the objections raised are not required to be kept pending inasmuch as, the same do not involve any such question, for disposal whereof the evidence should be permitted to be adduced. Without deciding the objections raised finally, the observation made by the tribunal as aforesaid treating the objections to be devoid of any merit are absolutely unwarranted and cannot be countenanced by this court. 17. Without deciding the objections raised finally, the observation made by the tribunal as aforesaid treating the objections to be devoid of any merit are absolutely unwarranted and cannot be countenanced by this court. 17. For the aforementioned reasons, in considered opinion of this court, the tribunal has seriously erred in rejecting the petition preferred on behalf of the petitioners for stay of the execution proceedings pending disposal of the objections raised by them resisting the execution of certificate for recovery of possession. 18. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dated 3.11.09 passed by the Rent Tribunal, Udaipur in execution case No.19/09 is set aside. The application preferred by the petitioners before the Rent Tribunal for stay of the execution proceedings is allowed in terms that the petitioners shall not be dispossessed from the premises in question in execution of the certificate for recovery of possession issued by the Rent Tribunal, Udaipur in case No.99/07 till the disposal of the objections filed on their behalf before the tribunal. The tribunal is directed to decide the objections raised by the petitioners after giving opportunity of hearing to both the parties expeditiously, preferably within a period of one month from the date of this order. The respondent/landlord shall be entitled to raise all legitimate objections against the maintainability of the objections filed on behalf of the petitioners. The objections shall be decided by the Rent Tribunal in accordance with law uninfluenced by any observations made by this court while deciding the present writ petition. No order as to costs.Writ Petition Allowed. *******