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Rajasthan High Court · body

2014 DIGILAW 1991 (RAJ)

Atul Kachhal v. Hem Raj

2014-12-04

MOHAMMAD RAFIQ

body2014
JUDGMENT 1. - Though this matter has come up on the board for orders on application bearing inward no.55282 dated 18.11.2014 filed by respondent no.1 under Article 226(3) of the Constitution of India for vacating interim order dated 14.10.2014 by which this court stayed further proceedings in Application No.860/06 pending before the Additional Civil Judge (Sr. Div.) & Rent Tribunal, Jaipur Metropolitan, Jaipur, for a period of six weeks, but this court is inclined to decide the main petition itself as the arguments on the application would suffice disposal of the main writ petition itself. Hence the writ petition is heard on merits. 2. This writ petition has been filed by tenant petitioner Atul Kachhal against order dated 30.05.2014 passed by the Additional Civil Judge (Sr.Div.) & Additional Chief Metropolitan No.5 and Rent Tribunal, Jaipur Metropolitan, Jaipur (for short, 'the Rent Tribunal'). The aforesaid order is a composite order deciding two applications together, one filed under Order 6 Rule 17 of the Code of Civil Procedure (for short, 'the CPC') and another under Order 8 Rule 1 of the CPC, both based on the same facts. While in the application under Order 6 Rule 17 of the CPC, the petitioner tenant had prayed for permission to incorporate certain facts in his reply to the eviction application, which, according to him, were based on subsequent development, namely, that during pendency of the proceedings before the Rent Tribunal, the landlord constructed a wall, which reduced the width of main gate by two feet. In application under Order 8 Rule 1 of the CPC the prayer was made that the photographs of such construction of wall should be taken on record. 3. The petitioner initially filed Writ Petition No.7894/2014 challenging the order dated 30.05.2014 to the extent it decided his application under Order 6 Rule 17 of the CPC read with Section 21 of the Rent Control Act, 2001. This court allowed the aforesaid writ petition vide judgment dated 15.09.2014 by quashing and setting aside the order dated 30.05.2014 and remanded the case back to the Rent Tribunal for deciding the application under Order 6 Rule 17 CPC afresh. It was also directed that the application shall be decided within a period of one month from the next date assigned by the Rent Tribunal in the eviction application. It was also directed that the application shall be decided within a period of one month from the next date assigned by the Rent Tribunal in the eviction application. The Rent Tribunal has, in compliance aforesaid remand order, decided the applications again vide order dated 15.10.2014 and rejected the same. 4. Present writ petition was filed on 16.09.2014, a day after the decision dated 15.09.2014 in earlier Writ Petition No.7894/2014, again assailing the same order dated 30.05.2014. This court while issuing notice of writ petition to the respondent, stayed further proceedings before the Rent Tribunal. 5. Shri Sagar Mal Mehta, learned Senior Advocate for respondents assisted by Miss Pallavi Mehta, has raised objection about maintainability of the writ petition contending that the order dated 30.05.2014 was a composite one and decided two applications and that the petitioner, if he has not chosen to challenge that part of the order by which application under Order 8 Rule 1 of the CPC was dismissed and made limited challenge in earlier writ petition against that order, which has been quashed in toto. Present writ petition cannot be maintained especially when the Rent Tribunal has, taking it to be an order of quashment in entirety, decided both applications again by order dated 15.10.2014. 6. Shri Sagar Mal Mehta, learned Senior Advocate has argued that the petitioner has, at foot-note no.1 in the writ petition, given a false impression that "..no such writ petition has been filed prior to it", whereas the writ petition filed earlier also sought to challenge the same order, which has been impugned in present writ petition. Learned Senior Advocate, in support of his arguments, has relied on judgment of the Supreme Court in K.D. Sharma v. Steel Authority of India Limited and Others - (2008) 12 SCC 481 and that of this Court dated 28.02.2011 in S.B. Civil Writ Petition No.501/2010, Sitaram Sharma v. State of Rajasthan and Others. 7. Shri Sagar Mal Mehta, learned Senior Advocate for petitioner, has referred to judgment of this court dated 09.12.2013 passed in another Writ Petition No.9272/2009 filed by petitioner challenging the order dated 04.05.2009 whereby his application was rejected and the affidavit of one Rahul Shukla was not taken on record by the trial court on the ground of delay. 7. Shri Sagar Mal Mehta, learned Senior Advocate for petitioner, has referred to judgment of this court dated 09.12.2013 passed in another Writ Petition No.9272/2009 filed by petitioner challenging the order dated 04.05.2009 whereby his application was rejected and the affidavit of one Rahul Shukla was not taken on record by the trial court on the ground of delay. This court considering that the matter has remained pending before this court for last four years, allowed the affidavit of Rahul Shukla to be taken on record subject to payment of costs of Rs. 500/- by the petitioner to the respondent. It was further directed that the evidence of the landlord shall be concluded within two months from the date next fixed before the Rent Tribunal and the petitioner tenant shall conclude his evidence within two months thereafter. The Tribunal was further directed to decide the main case within six months from the date a copy of order dated 09.12.2013 is produced before it. Sole purpose of petitioner is to somehow delay the proceedings of eviction application, which was filed way back in 2004. He has been adopting dilatory tactics, one after another, to stall the proceedings and to see that it is not decided on an early date. 8. Shri Mahendra Goyal, learned counsel for petitioner has submitted that this court while deciding earlier Writ Petition No.7894/2014 vide order dated 15.09.2014 took note of the application under Order 6 Rule 17 of the CPC only and it was in that limited context that the petitioner had filed the writ petition. The learned counsel has referred operative part of the judgment in which also the court has, while setting aside the order dated 30.05.2014 of the Rent Tribunal, remanded back the matter to the Rent Tribunal for deciding the application under Order 6 Rule 17 of the CPC afresh within one month. Despite that direction, if the Rent Tribunal in the fresh order dated 15.10.2014 took note of the application under Order 8 Rule 1 of the CPC, the petitioner cannot be blamed for that and that the order to that extent is not sustainable. Despite that direction, if the Rent Tribunal in the fresh order dated 15.10.2014 took note of the application under Order 8 Rule 1 of the CPC, the petitioner cannot be blamed for that and that the order to that extent is not sustainable. It is contended that declaration made by the petitioner in the foot-note has to be read in the light of the subject matter of writ petition, which he discloses in the beginning of the memorandum of the writ petition, which is that the writ petition seeks to challenge the order dated 30.05.2014 to the extent the application filed by the petitioner under Order 8 Rule 1-A(3) of the CPC was rejected. Similarly, when the petitioner filed earlier Writ Petition, in the subject matter he made a declaration that it was confined to challenge the order dated 30.05.2014 to the extent it decided the application under Order 6 Rule 17 of the CPC. Learned counsel argued that the application filed under Order 8 Rule 1-A(3) CPC merely sought to place the photographs of subsequently constructed wall made by respondent landlord, which has virtually reduced the width of main gate by two feet. This was a subsequent development that took place during pendency of the proceedings and the Rent Tribunal was wholly unjustified in rejecting the application. The petitioner had sought to place said photographs on record only with a view to substantiate the pleading, which he sought to insert by way of amendment in his reply to the eviction application. 9. Learned counsel for petitioner further submitted that there is no case of any concealment of facts by the petitioner because memorandum of present writ petition was already prepared before the decision was rendered by this court in earlier writ petition on 15.09.2014. Therefore, when it was filed on 16.09.2014 the fact about the aforesaid decision could not be incorporated therein. 10. Shri Sagar Mal Mehta, learned Senior Advocate, appearing for the respondent, opposed the writ petition on merits as well. Therefore, when it was filed on 16.09.2014 the fact about the aforesaid decision could not be incorporated therein. 10. Shri Sagar Mal Mehta, learned Senior Advocate, appearing for the respondent, opposed the writ petition on merits as well. He submitted that subsequent development on the basis of which the application was filed by the petitioner under Order 6 Rule 17 of the CPC has been dismissed by the Rent Tribunal because it found that the petitioner tenant has failed to give specific particulars as to the date, month and year when the alleged subsequent development took place and that the Rent Tribunal has given detailed reasons in its orders rejecting the application. The Tribunal has, in rejecting the application, relied on number of judgments of the Supreme Court. Application under Order 6 Rule 17 of the CPC and application under Order 8 Rule 1 of the CPC were based on the same facts, which is evident from the averments of para 2 of the application under Order 6 Rule 17 CPC, therefore the Rent Tribunal rejected two applications by composite order. The order having been set aside in entirety, the Rent Tribunal was perfectly justified in again taking up two applications together and has rightly rejected both of them. 11. On hearing learned counsel for the parties and perusing the material on record, I find that although technically the petitioner may be correct in stating that he challenged the order dated 30.05.2014 in earlier Writ Petition to the extent it decided application under Order 6 Rule 17 CPC but, at the same time, it has to be accepted that both the applications were based on the same facts. It was the same subsequent development with regard to which the petitioner sought to incorporate the pleadings in his reply to the eviction application and those very facts were sought to be proved by producing photographs of allegedly carried out construction by the respondent-landlord during pendency of the proceedings. The Rent Tribunal on remand of the application under Order 6 Rule 17 of the CPC again rejected the application. In doing so, it has made detailed analysis of the facts and has held that the petitioner-tenant has prima facie failed to establish that alleged wall was constructed after filing of his written statement. The Rent Tribunal on remand of the application under Order 6 Rule 17 of the CPC again rejected the application. In doing so, it has made detailed analysis of the facts and has held that the petitioner-tenant has prima facie failed to establish that alleged wall was constructed after filing of his written statement. The photographs, which were produced, have also been taken note of by the Rent Tribunal, which merely show structure like a wall between the premise and the road falling it but the Rent Tribunal has taken note of the fact that no pleadings with regard to this fact has been made in the originally filed reply to eviction application. Even in application seeking amendment, no specific particulars of the date, month and the order has been given as to when such construction was raised. The Rent Tribunal has concluded that such amendments were not bona-fide but intended to prolonge the proceedings. 12. This court already in earlier Writ Petition No.9272/2009 filed by petitioner tenant accepted his application to place on record affidavit of one Rahul Shukla, although the same was filed much belatedly and the application thereabout was rejected by the Tribunal on 14.05.2009. It was only for the reason that the said writ petition remained pending for almost four years, the affidavit was allowed to be taken on record subject to payment of costs of Rs. 500/-, but then this court directed the respondent landlord to conclude his evidence within two months and the petitioner tenant also to conclude the evidence within two months and the trial court to decide the main case within six months. There are thus enough facts available on record from which it can be safely inferred that the petitioner has been for one or other reason, delaying the proceedings to eventually delay his eviction from the tenant premise. Although, it is another matter whether the landlord succeeds on merits of the case and order of eviction is passed in the eviction application by the Rent Tribunal, but all these tactics are being adopted by the petitioner tenant only to defeat the purpose which the legislature has enacted the Rajasthan Rent Control Act, 2001, which envisages the disposal of eviction applications within the outer limit of 240 days. Curiously, in this case, eviction application was filed way back in 2004 and complete one decade has gone by since then and it is yet to be decided. This court does not find any infirmity in the impugned order in so far as the rejection of the application under Order 8 Rule 1 of the CPC by the Tribunal. On remand of the matter, the Tribunal has again dismissed both the applications. Despite taking note of the fact mentioned in the application under Order 8 Rule 1 of the CPC, the Tribunal has not been persuaded to accept those facts valid for both the purposes. 13. The remedy of eviction application before the Rent Tribunal is speedy remedy and the Tribunal as per the provisions in Section 21 of the Rent Control Act, 2001 is not bound by the procedure contained in the CPC but is guided by the principles of natural justice. In doing so, the Rent Tribunal has to ensure expeditious disposal of the eviction application, keeping in view the intention of the legislature. The Tribunal would be justified in rejecting all such applications filed for various purposes which are aimed at delaying the finalisation of the proceedings. 14. In view of the above discussion, the writ petition is therefore dismissed subject to payment of costs of Rs. 2500/-, which the petitioner shall pay to the respondent on the next date fixed before the Rent Tribunal. The Rent Tribunal is directed to now decide the eviction application as per the limit by extended by this court in its order dated 26.11.2014 in Writ Petition No.9272/2009. 15. This also disposes of stay application and the application filed by the respondent under Article 226(3) of the Constitution of India.Petition Dismissed. *******