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2013 DIGILAW 380 (RAJ)

Laxman Das v. Sheela Devi

2013-02-13

VINEET KOTHARI

body2013
Hon'ble KOTHARI, J.—This writ petition under Article 227 of the Constitution of India has been filed by the petitioner-tenant against the order dated 12.10.2012 passed by learned Rent Tribunal, Jodhpur, whereby the Rent Tribunal refused to frame the issues as provided in Order 14 of CPC in the eviction application filed by the respondent/landlady seeking eviction of the tenant from the suit shop No. 9 in question, situated at Masuria Section 7, Jodhpur for the bonafide necessity of her son. The petitioner/tenant is carrying on the business of "Kirana" in the name and style of M/s. Durga Kirana Store in the shop in question. 2. The learned trial court while passing the order impugned has obser-ved that the summary proceedings prescribed u/Sec.21 of the Rajasthan Rent Control Act, 2001, (for short, hereinafter referred to as 'Act of 2001') does not specifically require the Rent Tribunal to frame the issues and Rent Tribunals are not bound by the procedure laid down in the Civil Procedure Code, 1908. but is guided by the principles of natural justice, and the other provisions of the Act of 2001 itself, and Rules framed thereunder. Therefore, the application filed by the petitioner/tenant when the evidence was already completed by the parties, for framing the issue cannot be entertained; and thus, the application of the petitioner/tenant was rejected with cost of Rs. 1000/-. 3. Learned counsel for the petitioner/tenant. Mr. Narendra Thanvi, relied upon the decisions, which decisions were also cited before the learned Rent Tribunal in the case of Central Academy Educational Society vs. M/s. The Pratap Commercial Co. Pvt. Ltd. reported in 2010(2) RLW 1327 (Raj.) and submitted that if a serious dispute is raised by the defendant/tenant and in the present case, the petitioner/tenant had averred that the son of landlady. for whose need the eviction was sought, was already doing some business at some different premises; and in such circumstances, the learned Tribunal ought to have framed the issue in this regard and then allowed the parties to lead evidence and then decide the issues in question. He, therefore, submitted that the impugned order, which is a non-speaking one, deserves to be set aside under Article 227 of the Constitution of India and issues should be framed in such application under Section 9 of the Rent Control Act, 2001. 4. On the other hand, Mr. He, therefore, submitted that the impugned order, which is a non-speaking one, deserves to be set aside under Article 227 of the Constitution of India and issues should be framed in such application under Section 9 of the Rent Control Act, 2001. 4. On the other hand, Mr. Manish Patel, learned counsel for the respondent/landlady relying upon later decision of the coordinate bench of this Court in the case of Fakhruddin vs. Rent Tribunal, Ajmer & Ors., reported in 2011(1) RLW 689 (Raj.) submitted that the later decision after considering the previous decision cited by the learned counsel for the petitioner in the case of Central Academy Educational Society (supra), and Makhan Lal Bangal vs. Manas Bhunia reported in AIR 2001 SC 490 has found that in view of summary proceedings prescribed under Section 21 of the new Rent Control Act of 2001, the Tribunal cannot be compelled to frame the issues in an eviction application filed before it under Section 9 of the Act of 2001. 5. The relevant portion of both the judgments relied upon by the learned counsels are quoted below for ready reference. In the case of Central Academy Educational Society (supra), decided on 18.2.2010 a coordinate bench of this Court held as under:- "16. Indisputably, the issues arises when a material proposition of facts or law is affirmed by one party and denied by other. The object of any issue is to tie down the evidence, arguments and decision to a particular question so that there may be no doubt on what the dispute is. The correct decision of the civil lis largely depends on correct framing of the issues, correctly determining the real points in controversy which need to be decided, (vide Makhan Lal Bangal vs. Manas Buhania AIR 2001 SC, 490.) It is true that the eviction of a tenant in terms of the provisions of Section 9 can be sought for only on the grounds specified but then, the existence of the ground necessarily depends upon the basic facts being proved. Therefore, if there is difference between the parties on the material question of law and facts, then, in civil proceedings for just decision of the matter, it is always advisable to frame the issues/points of determination. 17. Therefore, if there is difference between the parties on the material question of law and facts, then, in civil proceedings for just decision of the matter, it is always advisable to frame the issues/points of determination. 17. It is true that the provisions of the Act does not mandate framing the issues or points of determination but then, if after due consideration of the matter the tribunal arrives at the conclusion that for a right decision of the matter, so as to impart justice between the parties, it is necessary to spell out the points of determination specifically and unambiguously then it is not precluded from framing of issues/points of determination and while taking such exercise, the tribunal can always apply the procedure and principles underlying. Order XIV of the CPC. However, necessity of framing the issues has to be determined by the court taking into account the pleadings of the parties in each case. Thus, in considered opinion of this Court, the tribunal could not have rejected the application preferred by the petitioner for framing the issues by simply saying that it will not be appropriate to frame the issues in light of the Rules Needless to say that any application preferred by the parties to the proceedings has to be dealt with by the tribunal in a just reasonable manner and the same should not be rejected in a cursory manner without touching the question raised, by a non speaking order. 18. The provisions of sub-sec. (6) of Section 15 providing for summary inquiry to be made by the tribunal which is deemed necessary for decision of the petition also does not preclude the tribunal from framing the points of determinations and proceed with the inquiry accordingly. Therefore, the contention of the petitioner that since the procedure to be adopted by the tribunal while deciding the petition is summary procedure therefore, the tribunal cannot frame the issues as in case of the trial of regular suit, is also devoid of any merit. 19. Since, the tribunal has not applied its mind to the pleadings of the parties so as to take a decision with regard to framing of issues therefore, the matter deserves to be remanded to the tribunal for deciding the application preferred by the petitioner afresh after hearing both the parties." 6. 19. Since, the tribunal has not applied its mind to the pleadings of the parties so as to take a decision with regard to framing of issues therefore, the matter deserves to be remanded to the tribunal for deciding the application preferred by the petitioner afresh after hearing both the parties." 6. In the case of later decision in the case of Fakhruddin vs. Rent Tribunal, Ajmer & Ors. (supra) decided on 12.11.2010, a coordinate bench of this Court has held as under:- "6. Now, comes the issue as to whether framing of issue is mandatory. Perusal of Section 21 of the Act of 2001 shows that the Rent Tribunal is having powers to regulate its own procedure. Aforesaid provision was made keeping in mind the objects of the Act of 2001. Looking to the large pendency of the rent control cases, summary procedure is provided for speedy disposal of cases. If aforesaid object apart from the provisions of the Act of 2001 are looked into, then it is clearly coming but that Code of Civil Procedure has not been made applicable entirely. If the prayer made by the Petitioner is accepted to make provisions of the Code of Civil Procedure applicable to rent control cases, by making it as a rule, it would amount to frustrate the very object of enactment of the Act of 2001. Hence, for the aforesaid reason also, prayer made cannot be accepted. This is more so when the Rent Tribunal will decide the controversy raised by the petitioner after taking up every aspect of the matter into consideration. 7. I have even considered the judgments referred by learned Counsel for Petitioner. In the case of Central Academy Educational Society (supra), it has been held that the Rent Tribunal is not bound by the procedure laid down in Code of Civil Procedure and it is also not mandatory to frame issue. However, in the facts of that case, order was set aside therein. Paras 17 of the judgment is quoted thus: "17. In the case of Central Academy Educational Society (supra), it has been held that the Rent Tribunal is not bound by the procedure laid down in Code of Civil Procedure and it is also not mandatory to frame issue. However, in the facts of that case, order was set aside therein. Paras 17 of the judgment is quoted thus: "17. It is true that the provisions of the Act does not mandate framing the issues or points of determination but then, if after due consideration of the matter the Tribunal arrives at the conclusion that for a right decision of the matter, so as to impart justice between the parties, it is necessary to spell out the points of determination specifically and unambiguously then it is not precluded from framing of issues/points of determination and while taking such exercise, the Tribunal can always apply the procedure and principles underlying Order XIV of the Code of Civil Procedure. However, necessity of framing the issues has to be determined by the Court taking into account the pleadings of the parties in each case. Thus, is considered opinion of this Court, the Tribunal could not have rejected the application preferred by the Petitioner for framing the issues by simply saying that it will not be appropriate to frame the issues in light of the Rules. Needless to say that any application preferred by the parties to the proceedings has to be dealt with by the Tribunal in a just reasonable manner and the same should not be rejected in a cursory manner without touching the question raised, by a non-speaking order. 8. The matter in hand in arising out of an application for setting aside the order of eviction and possession. The Tribunal has given reasons to dismiss the application denying framing of issues. So far as the judgment of the Hon'ble Apex Court in the case of Makhan Lal Bangal (supra) is concerned, the procedure applicable in election petition is altogether different, then the procedure provided under the Act of 2001. Since provisions of law applicable in this matter are quite different than in the judgment aforesaid, the case of Makhan Lal Bangal (supra) has no application to this case." 7. Since provisions of law applicable in this matter are quite different than in the judgment aforesaid, the case of Makhan Lal Bangal (supra) has no application to this case." 7. Having heard the learned counsel for the petitioner-defendant/tenant and the respondent/landlord at length, this Court is of the opinion that judgment in the case of Central Academy Educational Society (supra) relied upon by the learned counsel for the petitioner/tenant, is of little help of the petitioner/tenant here because the impugned order of the learned Rent Tribunal, there was found to be non-speaking order for not framing the issues on the point for determination and, therefore, the Tribunal was asked to decide the application afresh after hearing both the parties. 8. The later decision in the case of Fakhruddin (supra) taking note of the decision of coordinate bench in the case of Central Academy Educational Society (supra) as well as Makhan Lal Bangal (supra), held that the Tribunal has to give reasons to dismiss such application while denying to frame the issues and since summary procedure is prescribed under the Act of 2001 providing for expeditious trials of the these kinds of matters under the special law enacted in the year 2001 replacing the earlier Act of 1950, therefore, the guidelines to be taken from the procedure prescribed under the CPC, 1908, does not necessarily bind the Rent Tribunals to frame the issues in all the cases. The contention of the learned counsel for the petitioner/tenant that the tenant has raised serious dispute about the lack of bonafides of the respondent/landlady to claim eviction on the ground of alleged need of his son, therefore, the issue ought to have been framed, is not sufficient to direct the Tribunal to frame issues in such a case. 9. It is a matter of eviction, to be led by both the parties about their respective cases and then it is for the Tribunal to weigh that evidence in a summary procedure envisaged under Section 21 of the Act of 2001 and then give its findings. The provisions of CPC, 1908, have been deliberately stipulated to be not applicable as such in Section 21(3) of the Act of 2001, while the principles of natural justice and other provisions of the Act and Rules made thereunder are applicable with the freedom to Rent Tribunal to regulate its own procedure. The provisions of CPC, 1908, have been deliberately stipulated to be not applicable as such in Section 21(3) of the Act of 2001, while the principles of natural justice and other provisions of the Act and Rules made thereunder are applicable with the freedom to Rent Tribunal to regulate its own procedure. Therefore, it has to be left to the discretion of the Rent Tribunal whether to frame the issues in such cases or not, depending on the nature of pleadings by the parties in such cases. 10. It is obviously clear that the Rent Tribunals are supposed to hold summary enquiry in a quick and expeditious manner and to avoid lengthy procedures, enacted the CPC, 1908. The efforts of the present petitioner/tenant to fall back on that procedure of CPC, 1908, specially at the fag end of the trial, when both the parties had filed their respective affidavits and were even allowed to cross-examine each other, such an application filed by the defendant/tenant to frame the issues, can only be described as a failing effort to delay the conclusion of the trial. 11. The impugned order before this Court cannot be said to be non-speaking or laconic order in any manner. On the contrary, discussing the law cited by the petitioner/tenant and the facts and pleadings, the Tribunal in the light of provisions of the Act and in its discretion found that such application cannot be entertained at the fag end of the trial; and that is why the application was dismissed with cost of Rs. 1000/-. Merely because the subsequent decision cited on behalf of landlord in the case of Fakhruddin (supra), does not find a mention in the impugned order that does not render the impugned order laconic or non-speaking in any manner as was contended by Mr. Narendra Thanvi, counsel for the tenant. On its own foundation and provisions of law, which is correct in the opinion of this Court, the impugned deserves to be sustained. 12. The scope of Article 227 of the Constitution of India for interfering with such interlocutory orders of Rent Tribunal between the landlord and tenant has been recently delineated and held to be very narrow by Hon'ble Supreme Court recently in the case of Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil reported in 2010 AIR SCW 6387, wherein the Apex Court has held as under:- "62. vs. Rajendra Shankar Patil reported in 2010 AIR SCW 6387, wherein the Apex Court has held as under:- "62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulared: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority.' (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L.Chandra Kumar vs. Union of India and Ors. reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Articles 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (I) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Articles 226 is meant for protection of individual grievance. Therefore, the power under Article 227 be unfettered but its exercise is subject to High degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. 63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties. 64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." 13. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." 13. In view of aforesaid legal position, this Court is satisfied that the present writ petition filed by the petitioner/tenant is devoid of merit and the discretionary order of Tribunal with cogent reasons given therein for not framing the issues at the fag end of the trial of an eviction petition under Rent Control Act, 2001, does not require any interference in the present writ petition under Article 227 of the Constitution of India. The writ petition is, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties and the Rent Tribunal forthwith.