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Rajasthan High Court · body

2011 DIGILAW 1997 (RAJ)

Ved Prakash Sharma v. Nahar Singh Maheshwari

2011-09-16

ALOK SHARMA

body2011
JUDGMENT 1. - A petition for eviction was laid on or about 31.1.2008 before the Rent Tribunal, Jaipur City, Jaipur on the ground of default in payment of rent, and was, numbered as 101/2008. 2. The Property in issue was House No. 1/95 Malviya Nagar, Jaipur. Reply to the eviction petition came to be filed on 5th April, 2008. The substance of the reply was that there was no arrears of rent and in fact construction over the first floor of the tenanted premises have been got conducted with the consent of the previous owner and the tenant was entitled to adjustment of the amount spent on construction towards rent due and as such no amounts were due or could be due up to 30th November, 2008. 3. Issues were framed on 17.5.2008. The main issue was, as to whether the tenant was a defaulter and was liable to be evicted for the aforesaid reason with reference to Section 9 of the Rajasthan Rent Control Act, 2001 (hereinafter to be referred to as "the Act of 2001") and further as to what relief the landlord was entitled to in the event it was established that the tenant was defaulter in payment of rent and liable to eviction. 4. The tenant there-upon appears to have proceeded to stall the eviction proceedings on one count or another. In the first instance, an application for cross examination of witnesses was filed before the Rent Tribunal. It is relevant to note that the Rent Tribunal is a Tribunal of summary jurisdiction and has to power to decide the eviction petition on the basis of affidavits on record. The said application, however came to be dismissed by the Rent Tribunal vide order dated 10.9.2008. The order dated 19.2.2008 was challenged by the tenant in S.B. Civil Writ Petition No. 1086/2009 before this Court. When the writ petition came up for consideration before this Court on 8th July, 2009, counsel for the landlord pointed out that the proceedings had been taken only with a view to delay the eviction petition and that neither cross examination of witnesses was necessary nor such a cross examination was indefeasible right of the tenant in summary proceeding before the Rent Tribunal. It was submitted by the counsel for the landlord that in the alternative, even if the writ petition were to be allowed and the cross examination of the landlord's witnesses allowed, dates be fixed for cross examination of witnesses. On the aforesaid submission of the counsel for the landlord, the Court vide order dated 8.7.2009 disposed of the writ petition No. 1086/2009 and set aside the order dated 10.9.2008 passed by the Rent Control Tribunal, Jaipur City Jaipur. The tenant was allowed to cross examine the witnesses for the landlord. It was directed that such cross examination would be undertaken on the next date following the date already fixed before the rent Tribunal. The Court was pleased to direct that the Tribunal should fix its calender for the case, in a manner such that the eviction petition be expedited and be completed as provided under the Act of 2001. It is relevant to note that Under Section 15(5) of the Act of 2001 the Tribunal is to dispose of the eviction petition within a period of two hundred forty days from the date of service of notice of petition on the non-petitioner. 5. After the proceedings before the Tribunal were commenced following the order dated 8th July, 2009 passed in Writ Petition No. 1086/2009, the tenant once again moved an application before the tribunal on or about 18.8.2009 for taking certain documents on record. A further application was also moved on 20.8.2009 by the Vashudev Samtyani as evidence in defence. However, the said application was dismissed on 21.8.2009. 6. Against the order dated 21.8.2009 passed by the Rent Control Tribunal, S.B. Civil Writ Petition No. 11961/2009 was laid before this Court once again. On hearing the matter, this Court found that soon after the disposal of the aforesaid petition, the tenant had submitted an affidavit of a third witness i.e. Vasudev Samtyani and on objection being raised by the landlord, the Tribunal after hearing the parties and with reference to the order dated 8.7.2009 passed in Writ Petition No. 1086/2009 had rightly declined to take on record the affidavit of Vasudev Samtyani. The Court also noted that the Act of 2001 clearly aimed at providing an efficacious remedy and the provisions incorporated in Sections 15, 16 and 21 of Act of 2001 were meant for expeditious trial of the applications before the Tribunal. The Court also noted that the Act of 2001 clearly aimed at providing an efficacious remedy and the provisions incorporated in Sections 15, 16 and 21 of Act of 2001 were meant for expeditious trial of the applications before the Tribunal. Reference was made particularly to Section 15 (3) which provided that while issuing notices on the petition filed before the Tribunal, the notices were to be accompanied with the petition and the copies of affidavits of the witnesses, on whom reliance was placed. The Court held that the petitioner tenant was under a duty to prohibit his reply, affidavit and documents all together . The Court further held that the Act of 2001 did not provide for the cross examination of the witnesses of the parties as of right and it had been left to the discretion of the Tribunal to consider and allow any request for cross examination, in the interest of justice. With reference to the facts at hand in the said petition, the Court held that the petition challenging the decision of the Tribunal disallowing the affidavit of Vasudev Samtyani could not be set aside and accordingly, dismissed the writ petition vide order dated 18.1.2010. 7. From the record of the case, it is evident that event after the decision dated 18.1.2010 passed by this Court in Writ Petition No. 11961/2009, the tenant again, with a view to delay the proceedings before the Rent Tribunal, changed his counsel and sought adjournment, whereupon the Rent Tribunal vide order dated 2.2.2010 imposed costs of Rs. 1000/- on the tenant and fixed the matter for final arguments. 8. In the meantime, against the order dated 18.1.2010 passed by the learned Single Judge in S.B. Civil Writ Petition No. 11961/2009 a D.B. Civil Special Appeal (Writ) No. 97/2010 was filed. The Division Bench vide order dated 8.2.2010 upheld the order dated 18.1.2010 and dismissed the appeal. 9. Still determined to stall the proceedings, the tenant moved an application u/s 10 CPC for staying the proceedings of the Rent Tribunal on the ground that a suit was pending before the District Court, Jaipur. The said application came to be dismissed by the Tribunal on 16.4.2010. Against the order dated 16.4.2010 passed by the Tribunal dismissing the petitioner's application u/s 10 CPC, the petitioner tenant approached this Court once again by way of SB Civil Writ Petition No. 6947/2010. 10. The said application came to be dismissed by the Tribunal on 16.4.2010. Against the order dated 16.4.2010 passed by the Tribunal dismissing the petitioner's application u/s 10 CPC, the petitioner tenant approached this Court once again by way of SB Civil Writ Petition No. 6947/2010. 10. On consideration of the matter, a learned Single Judge of this Court came to the conclusion that the application before the Tribunal had been filed in series of other applications "only just to defer the proceedings for one or the other reasons". The Court further held in its order dated 17.5.2010 passed in Writ Petition No. 6947/2010 that "so far as relief claimed in the suit filed by the petitioner pending before the learned trial Judge is concerned, is basically that the sale deed should not be registered without first adjustment of the amount which has been paid/incurred by him in repairs and maintenance of the property in question, as alleged. However, at the same time, the petitioner, in the written statement filed in eviction proceedings initiated against him, took a plea that what has been incurred must be adjusted towards the rent; but what has been prayed for in the pending suit and the plea taken in the written statement filed in eviction proceedings has no inter-relationship and section 10 in the facts of the instant case has no application. So far so submission for consolidation of both the proceedings is concerned, it has no relationship with the dispute which has been raised by the non-petitioner plaintiff in eviction proceedings under the Act of 2001 and even otherwise it is not permissible under law and taking note of what has been observed (supra), the petitioner has filed applications one after another, this Court otherwise is not inclined to interfere with the order impugned in the facts of the instant case." 11. The petitioner tenant however was not dissuaded by repeated observations of this Court that he was cynically misusing the easy excess to the Courts to delay the eviction proceedings filed by the landlord, on one ground or the other. 12. On 21.2.2010, the tenant again moved an application for consolidation of the petition for eviction before the Rent Tribunal with the suit filed by him before the District Court, Jaipur. The said application dated 21.5.2010 was dismissed by the Tribunal with costs of Rs. 1000/- vide its order dated 29.5.2010. 13. 12. On 21.2.2010, the tenant again moved an application for consolidation of the petition for eviction before the Rent Tribunal with the suit filed by him before the District Court, Jaipur. The said application dated 21.5.2010 was dismissed by the Tribunal with costs of Rs. 1000/- vide its order dated 29.5.2010. 13. In this back-ground, even though the matter in the petition for eviction before the Rent Tribunal under the Act of 2001 was at the stage of final hearing, the tenant in March, 2011 once again moved two applications, one under Order 7, Rule 11 CPC and another under Order 6, Rule 17 CPC, the first for dismissal of the suit and the second, to allow an amendment to the written statement filled by him on 5.4.2008. 14. Vide order dated 22.3.2011, the learned Tribunal was pleased to dismiss the application purporting to be one under Order 7, Rule 11 read with Section 151 CPC on the ground that the entire evidence having been led before the Tribunal and the, matter being ripe for final arguments, there was no occasion whatsoever to entertain the application under Order 7, Rule 11 CPC. This order is not under challenge before this Court. 15. In so far as the application under Order 6, Rule 17 read with Section 151 CPC is concerned, the learned Tribunal held that (i) the application was wholly belated and (ii) the said application for amendment was founded upon the material all through in the knowledge of the tenant. Based on these two grounds, the Tribunal dismissed the said application for amendment, more-so with reference to the stage of the petition-it being ripe for final arguments. 16. The proceedings under the Rent Control Act, 2001 are, in terms of thee legislative intendment, to be expeditiously concluded by resorting to the summary proceedings. The act of 2001, therefore, does not detail any procedure for the adjudication of landlord tenant dispute/s including for petitions for eviction and merely dictates that adjudication should be complaint with the principles of natural justice. The proceedings under the Act of 2001 were never intended to be dragged in the manner the petitioner tenant has in the present case as would be evident from the history of the litigation detailed herein above. The proceedings under the Act of 2001 were never intended to be dragged in the manner the petitioner tenant has in the present case as would be evident from the history of the litigation detailed herein above. More specific to the application for amendment sought by the petitioner tenant, it would be in place to refer to the Proviso to Order 6, Rule 17 CPC, which reads as under : "Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial: 17. A conjoint reading of Section 15 of the Act of 2001 which mandates a summary procedure and expeditious disposal of eviction petition with the Proviso to Order 6, Rule 17 CPC is indicative of grossest misuse of judicial process by the tenant in not only repetitively seeking to delay the adjudication o eviction petition, but also in over-looking the directions of this Court on two occasions that the eviction petition be expedited and he Court's observations that the petitioner was only seeking to delay adjudication of the eviction petition on one ground or the other. 18. From the facts on record, it is evident that the application under Order 6, Rule 17 CPC for amendment was even otherwise grossly belated and did not satisfy the Proviso to Order 6, Rule 17 CPC which clearly states that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. 19. Finally, this Court has to be conscious of the fact that the petitioner tenant is seeking to invoke jurisdiction under Article 227 of the Constitutions of India. As annunciated by the Apex Court in Shalini Shyam Shetty v. Rajendra Shanker Patil, reported in 2010(2) WLC (SC) Civil 457 : (2010) 8 SCC 329 , the jurisdiction of this Court under Article 227 is extremely narrow and limited to be invoked only in cases where the Courts of Tribunal exceed their authority and the orders passed entail abuse of procedure or perversity on law or facts. In the present case, the discretion of the Rent Tribunal is extremely reasonable and justly exercised. In the present case, the discretion of the Rent Tribunal is extremely reasonable and justly exercised. There is no material o record hold to the contrary of bring the case of the petitioner within the scope of Article 227 of the Constitution of India. 20. The upshot of this discussion herein above is that keeping in mind the shocking facts of persistent obstruction of the proceedings of the Rent Tribunal by the petitioner tenant, the petition deserves to be dismissed with exemplary costs. 21. Accordingly the petition is dismissed with costs of Rs. 10,000/- to be paid by the petitioner to the Respondent No. 1.The say application also stands dismissed.Petition Dismissed. *******