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2013 DIGILAW 178 (RAJ)

Sushila Devi v. Devilal Prajapati

2013-01-22

VINEET KOTHARI

body2013
JUDGMENT 1. - This writ petition has been filed against the order dated 22.9.2012 passed by the learned Rent Tribunal, jodhpur (Presiding Officer, Mrs. Rekha Sharma, RJS), whereby, in pursuance of the detailed remand order passed by the learned Appellate Rent Tribunal (Hon'ble justice Banwari Lal Sharma, as His Lordship then was) vide Annex. 12 dated 24.10.2011 against the judgment and eviction decree dated 5.3.2011 is Case No. 208/2007, Devilal S/o Shankerlal Prajapati v. Smt. Sushila Devi the learned Rent Appellate Tribunal held that eviction suit was being contested by one (Mr. Shrigopal S/o Ramniwas Agarwal) as the power of attorney holder of defendant-tenant-Smt. Sushila Devi and the entire trial was completed on the basis of 'Vakalatnama' filed by said power of attorney only, Shrigopal S/o Ram Niwas and he only led the defence witnesses and was himself examined and cross examined before the Rent Tribunal. The Appellate Rent Tribunal further held that the affidavit in defence had also been filed by said Shrigopal, as power of attorney holder of Sint. Sushila Devi and therefore, the evidence led by defendant through said power of attorney holder Shrigopal could not be ignored by the Rent Tribunal and the Rent Tribunal ought to have first decided the issue as to whether the defence led by the said power of attorney holder, Shrigopal can be ignored and ex parte proceedings can be taken against the defendant-tenant; his Mother, Sushila Devi because no formal order for. proceeding ex parte on this basis was ever drawn against her by the Rent Tribunal. 2. After this remand order also, the learned Rent Tribunal has again passed the impugned order dated 22.9.2012 reiterating the earlier stand and held that in the absence of the original document, viz. power of attorney having been filed, the defence led by the defendant-tenant through her power of attorney holder and son, Shrigopal cannot be taken into account. Such an objection by landlord was entertained at the fag end of the trial. 3. Being aggrieved by this order, the defendant tenant has approached this Court by way of present writ petition under Article 227 of the Constitution of India. 4. Mr. S.D. Purohit has put in appearance on caveat instructions on behalf of respondent landlord. 5. Such an objection by landlord was entertained at the fag end of the trial. 3. Being aggrieved by this order, the defendant tenant has approached this Court by way of present writ petition under Article 227 of the Constitution of India. 4. Mr. S.D. Purohit has put in appearance on caveat instructions on behalf of respondent landlord. 5. The present litigation between the parties in the eviction matter has already travelled upto the Supreme Court against the order dated 25.1.2010 passed by this Court in D.B. Civil Second Appeal No. 41/2010 in some injunction matter between the parties. 6. Learned counsel for the petitioner-defendant, Mr. O.P. Mehta submitted that the copy of original power of attorney was filed in the eviction matter before the Rent Tribunal in Case No. 111/2007 filed by tenant against landlord, which was duly compared and taken on record, but in the present eviction Case No. 208/2007 filed by landlord, the application alongwith number of documents including copy of power of attorney was filed by tenant, which came to be dismissed and tenant-Sushila Devi took up the matter by way of SLP (SLP No. 15401/2010) and in that eviction suit and the document viz. the original power of attorney was again filed before the Appellate Rent Tribunal in Appeal No. 40/2011. He also submitted that in the rejoinder to the written statements filed by the defendant-tenant, the plaintiff-landlord had himself admitted the locus of said power of attorney holder had himself admitted the locus of said power of attorney holder, Shrigopal, who is son of defendant-tenant, Smt. Sushila Devi and therefore, the learned Appellate Court was justified in discussing in detail the entire factual matrix of the case and thereafter, directing the Rent Tribunal to reconsider the original Case No. 208/2007 without ignoring the defence of the tenant, which was earlier decreed by the learned Rent Tribunal on 5.3.2011 in favour of the landlord ignoring the defence led by said power of attorney holder, Shrigopal. 7. Learned counsel for the respondent-landlord, Mr. 7. Learned counsel for the respondent-landlord, Mr. S.D. Purohit however, supported the impugned order dated 22.9.2012 of the learned Rent Tribunal and submitted that in he absence of the original power of attorney being produced by the defendant before the Rent Tribunal, the defence led by said Shrigopal, power of attorney holder could not be taken into consideration by the learned Rent Tribunal and therefore, the impugned order is perfectly justified and legal. 8. Having heard the learned counsels at some length and upon perusal of the impugned order dated 22.9.2012, this Court is at loss to understand the attitude of learned Rent Tribunal in this regard in the face of the fact that the original power of attorney has already been filed previously in injunction suit by the defendant Sushila Devi, which matter reached upto the Hon'ble Supreme Court and the power of attorney being in the Court record though in different case, the same naturally could not be produced before the Rent Tribunal. The said fact coupled with the fact that very initiation of defence in the present case right from filing of 'Vakalatnama' by said power of attorney holder, Shrigopal on behalf of defendant-tenant-Sushila Devi, his mother, and before the Rent Tribunal, the defence was led by Shrigopal only, the power of attorney holder of Smt. Sushila Devi, the learned Rent Tribunal despite detailed remand order by the learned Appellate Rent Tribunal, in rather stubborn manner, has chosen to pass the impugned order, setting aside the defence of tenant again. The Presiding Officer of the Rent Tribunal appears to have cared a little about the facts on record and the detailed judgment by the superior Court and that is why in a totally reckless manner, she has reiterated the same stand as taken in the earlier order dated 5.3.2011. The purpose of power of attorney was only to justify the locus of Shrigopal, which otherwise stood all through the trial as valid and the Court had already verified the same upon its production. This clearly shows that the said Rent Tribunal is even now bent upon to pass the ex parte eviction decree against the defendant-tenant, ignoring the defence led by the son of defendant tenant- Sushila Devi as her power of attorney holder. Such reticent attitude of the lower Court or Tribunal in the face of the orders of superior Court cannot be appreciated. Such reticent attitude of the lower Court or Tribunal in the face of the orders of superior Court cannot be appreciated. Mere writing of long orders do not make them justified orders necessarily. 9. In supervisory jurisdiction under Article 227 of the Constitution of India, this Court would not normally interfere with the interlocutory order passed by the lower Courts or Tribunals, unless a serous miscarriage of justice or illegality is seen in the order passed by the lower Court or Tribunal. The present case presents a glaring example of such a bad exercise of judicial discretion vested in the Rent Tribunal below. 10. Consequently, this writ petition of tenant is allowed. The impugned order dated 22.9.2012 is set aside and the learned District judge, jodhpur metropolitan is requested to transfer the proceedings of the said Case No. 208/2007, Devilal v. Sushila Devi to other Competent Court of similar jurisdiction to decide the said eviction petition afresh to allay the apprehension of defendant-tenant. No order as to costs. Copy of this order be sent to both the Tribunals below.Petition allowed. *******