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2011 DIGILAW 1463 (RAJ)

Bhag Singh v. Savitri Devi

2011-07-25

DINESH MAHESHWARI

body2011
JUDGMENT 1. - The learned counsel for the contesting party, respondent No.1, has appeared in caveat; and with the consent and at the request of the learned counsel for the parties, the matter has been considered finally at this stage itself. 2. After having heard the learned counsel for the parties and having perused the material placed on record, this Court has formed an opinion that the impugned order dated 25.05.2011 cannot be sustained and the application as moved by the petitioner with reference to Section 10 of the Code of Civil Procedure ('CPC') deserves to be restored for re-consideration of the learned Rent Tribunal, Sriganganagar. As the application is being restored for reconsideration, this Court would not be making any comments on the merits of the case; and only a brief reference to the background would suffice. 3. The respondent No.1 has filed a petition for eviction (No.32/2007) on or about 04.05.2007 praying for eviction with the allegations that the petitioner has been the tenant in the premises in question and has defaulted in making payment of rent and has also denied the title of landlord. The petitioner has filed a reply, inter alia, alleging a transaction of his brother with the son of the respondent No.1 where for certain blank signed papers were handed over to the 2 son of respondent No.1 and who allegedly created a power of attorney thereupon and on that basis, got executed a sale deed. The petitioner also submitted that he had already filed a civil suit on 14.12.2006 in the Court of District Judge, Sriganganagar for declaration against such sale deed. In nutshell, the petitioner has clearly denied existence of relationship of landlord and tenant between the parties and on the contrary, he has set up specifically a title in himself. The petitioner moved an application with reference to the provisions of Section 10 CPC in the eviction petition and prayed for stay over the proceedings in the petition for pendency of the previously instituted suit filed by him wherein question of his title to the property is involved. 4. The learned Rent Tribunal has proceeded to reject the application by the impugned order dated 25.05.2011 with the observations that the matters in issue in the two proceedings i.e., the civil suit and the eviction petition were not directly and substantially the same; and the parties were also not the same. 5. 4. The learned Rent Tribunal has proceeded to reject the application by the impugned order dated 25.05.2011 with the observations that the matters in issue in the two proceedings i.e., the civil suit and the eviction petition were not directly and substantially the same; and the parties were also not the same. 5. Though learned counsel for the parties have advanced several arguments for and against the order impugned but it does not appear necessary to dilate on the same. Suffice is to observe for the present purpose that though the Rent Tribunal has referred to pleadings and contentions of the respective parties but thereafter has proceeded to decide the application only with the observations that the issues in the two proceedings were not directly and substantially the same and the parties were also not the same. The fact of the petitioner having not only denied the existence of relationship of landlord and tenant but having asserted himself to the owner of the property, appears not to have been considered by the 3 learned Tribunal. Though in the petition for eviction, the question of ownership as such is not to be considered and the title is not to be pronounced upon but then, the defence plea as raised by the petitioner would be required to be gone into so as to arrive at the finding as to whether there exists a relationship of landlord and tenant or not. It is also noticed that in the petition in question, the respondent No.1 has precisely asserted the ground of denial of title; and such ground is contested by the petitioner while asserting a title in himself. Thus, in the opinion of this Court, the application could not have been rejected with an abstract reference to the principle that the question of ownership is not germane to the petition for eviction. The questions as involved in the present case in their peculiar nature ought to have been examined after reference to all the pleadings of the parties in the two matters. It is also not in dispute that the petitioner as well respondent No.1 are the parties in the previously instituted suit filed by the petitioner. Effect of this aspect has also not been considered. 6. It is also not in dispute that the petitioner as well respondent No.1 are the parties in the previously instituted suit filed by the petitioner. Effect of this aspect has also not been considered. 6. This Court would hasten to observe that the matter is being considered in the writ jurisdiction and hence, this Court is not pronouncing finally on the merits whether on the plea of the parties or even on the application as moved by the petitioner. All such questions are, of course, for consideration of the learned Rent Tribunal but it appears appropriate that the decision on the application moved by the petitioner ought be taken with reference to all the material on record and the core issues involved in the matter. In these circumstances, it appears appropriate that the impugned order be set aside and the application be restored for reconsideration of the learned Rent Tribunal. 7. Accordingly, this writ petition is allowed to the extent indicated; the impugned order dated 25.05.2011 is set aside; the application moved by the petitioner with reference to Section 10 CPC shall stand restored for re-consideration of the Rent Tribunal, Sriganganagar. Th e parties to appear on the next date already fixed before the Tribunal and the Tribunal shall consider the application forthwith. There shall be no order as to costs of this writ petition.Writ petition allowed. *******