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2013 DIGILAW 730 (RAJ)

Om Prakash v. ADJ No. 2, Bhilwara

2013-04-09

VINEET KOTHARI

body2013
JUDGMENT 1. - By the impugned order dated 17.12.2007, the appellate Court of learned Addl. District judge No. 2, Bhilwara allowed the appeal of the landlord Shiv Singh S/o Madho Singh against the order of learned trial Court dated 24.7.2006, whereby, the learned trial Court refused to determine the provisional rent under Section 13(3) of Rajasthan Premises (Control of Rent And Eviction) Act, 1950 upon remand on the said issue by this Court in revision petition filed by defendant tenant Govind Ram son of Motiram Bhadbhunja, namely S.B. Civil Writ Petition No. 633/1998 in which the learned Single Judge of this Court disposing of the writ petition observed as under: "28.7.1998 Hon'ble Shri Bhagwati Prasad, J. Mr. Bheem Arora, for the petitioner This revision petition is against the refusal of an application under Order 1, Rule 10 C.P.C. The trial Court was not convinced that at this stage, the applicant was entitled to implead Kanchan Devi as party. In this light of the matter, I do not think that any illegality has been committed by the trial Court. The case of the petitioner is that in family settlement, this property had come in the share of Kanchan Devi and Kanchan Devi sold this property to the petitioner. All these question, the petitioner can put in the written statement and the trial Court will be required to look into all these facts to determine all the questions in between the plaintiff and the defendant before determining the rent. In this view of the matter, no interference is called for. There is no force in this revision petition. The revision petition is therefore dismissed." 2. After the remand, learned trial Court vide order dated 24.7.2006 held that in view of the registered sale deed executed by the respondent Kanchan Devi on 25.6.1994 for Rs. 50,000/- in favour of tenant Om Prakash and his brother Govind Ram jointly, in whose share the disputed shop in question has come, there was no need to determine the provisional read under Section 13(3) of the Act. Against the said order dated 24.7.2006, the landlord approached the learned appellate Court in Appeal No. 62/2006, Shiv Singh v. Govind Ram & Ors ., and the learned appellate Court has allowed the appeal o C the landlord vide impugned order Annex. Against the said order dated 24.7.2006, the landlord approached the learned appellate Court in Appeal No. 62/2006, Shiv Singh v. Govind Ram & Ors ., and the learned appellate Court has allowed the appeal o C the landlord vide impugned order Annex. 10 dated 17.12.2007 reversing the order of learned trial Court and has remanded back the matter to the trial Court determining the provisional rent. 3. Aggrieved by the said order, the petitioner defendant-tenant-Om Prakash S/o Moti Ram brother of original tenant Govind Ram S/o Moti Ram has approached this Court by way of present writ petition under Article 227 of the Constitution of India. 4. Learned counsel for the petitioner defendant, Mr. Suresh Shrimali submitted that the said Om Prakash also was impleaded in the eviction suit by the learned trial Court against his brother Govind Ram by Shiv Singh and in view of the registered sale deed executed by Sint. Kanchan Devi, in whose share the suit shop fell upon a partition in their family and said Kanchan Devi through her power of attorney holder. Devendra Kumar, sold suit shop on 25.6.1994 to both the brothers Om Prakash and Govind Ram jointly and the relationship of landlord and tenant qua the disputed shop came to an end and therefore, there was no need to determine the provisional rent under Section 13(3) of the Rent Control Act, 1950 and the learned trial Court had rightly refused to do so in pursuance of the remand order dated 28.7.1998 of the High Court, quoted above. He submitted that the learned appellate Court has wrongly held that the submission of Govind Ram and Om Prakash that they have purchased the said disputed shop through registered sale deed dated 215.6.1994 is without any foundation in view of the written statement of defendant-respondent Kanchan Devi before the learned trial Court. He, therefore, submitted that the impugned order of learned appellate Court deserves to be set aside. 5. On the other hand, Mr. Dhanesh Saraswat urged that the relationship landlord and tenant continued between the parties in view of the clear admission of respondent Kanchan Devi and the registered sale deed dated 25.6.1994 cannot be said to have brought to an end the relationship of landlord and tenant between the parties and since the petitioner Om Prakash is not even the original tenant, he cannot challenge the'impugned appellate order before this Court. 6. 6. Having heard the learned counsels, this Court is of the considered opinion that the registered sale deed dated 25.6.1994 executed by the respondent Kanchan Devi in favour of both the brothers Govind Ram and Om Prakash cannot be brushed aside unless the said document is cancelled by the appropriate Civil Court or by the parties themselves and the relationship of landlord -and tenant qua the disputed shop in question will not continue after the execution of the registered sale deed in favour of tenant and his brother jointly. The purpose of determining the provisional rent under Section 13(3) of the Act of 1950 is to allow the continued recovery of rent from the tenant during the pendency eviction petition. Once the relationship of landlord and tenant itself comes to an end with the transfer of disputed property itself to the tenant, the purpose of determining the provisional rent is lost and therefore, there was no need for the concerned trial Court to determine the provisional rent for the 'shop in question. The co- ordinate bench of this Court while allowing the tenant to raise these questions before the learned trial Court itself had disposed of the revision petition on 28.7.1998. After the said remand the learned trial Court had rightly held vide order dated 24.7.2006 that the provisional rent under Section 13(3) of the Act was no longer required to be determined in view of the purchase of property itself. The learned appellate Court has, apparently, fallen into an error in ignoring the said registered sale deed and giving preference to an averment made in the written statement by said Smt. Kanchan Devi, bereft of the context and therefore, the impugned order of the learned appellate Court dated 17.12.2007 deserves to be set aside. The validity of sale by Kanchan Devi to tenant Govind Ram and his brother Om Prakash cannot be examined in the present eviction suit. 7. Consequently, the present writ petition deserves to be allowed and same is accordingly allowed and the impugned order of the appellate Court dated 17.12.2007 passed in Appeal No. 62/2006 is set aside and that of the learned trial Court dated 24.7.2006 is restored. No order as to costs. Copy of this order be sent to the Courts below and parties concerned forthwith.Petition Allowed. *******