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2014 DIGILAW 401 (RAJ)

Mahesh Kumar v. Rajendra Kumar Solanki

2014-02-06

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 24.10.13 of the Rent Tribunal, Jodhpur Metropolitan City, whereby an application preferred by the petitioner herein for impleading him as party respondent in the matter, stands rejected. 2. The facts relevant are that the respondents no.1 to 4 filed a petition for recovery of arrear of rent and eviction against the respondent no.5 in respect of the disputed premises, a shop. The disputed premises was owned by late Shri Ramchandra and after his death, his son Suresh Chandra was collecting the rent. It was averred that after death of Ramchandra, an oral partition took place amongst the legal heirs and the shop in question fell in the share of respondents no.1 to 4. The petitioner, the brother of respondent no.1, son of late Shri Ramchandra, made an application for impleading him as party to the proceedings stating that no oral partition as alleged had taken place and as a matter of fact, a suit of partition preferred by him in respect of the properties owned by late Shri Ramchandra Solanki is pending Consideration before the civil court of competent jurisdiction. It was submitted that the petitioner herein being a co-sharer in the disputed premises is necessary party to the proceedings. The application stands rejected by the Rent Tribunal by the order impugned holding that in the proceedings under the Rajasthan Rent Control Act, 2001, the question of title over the property is not required to be gone into and the landlord even if he is not owner of the property can maintain the petition for eviction against the tenant. Accordingly, the application preferred by the petitioner stands rejected by the order impugned. Hence, this petition. 3. Learned counsel for the petitioner contended that the respondent no. 1 to 4 have preferred the petition claiming themselves to be landlord on the strength of the oral partition amongst the co-sharers which has never taken place. Learned counsel submitted that the petitioner has already filed a suit for partition in respect of joint properties including the premises in question, which is pending consideration before the civil court of competent jurisdiction and therefore, in the eviction petition filed by the respondents no. 1 to 4 claiming themselves to be exclusive owner of the disputed premises, the petitioner is necessary party. 1 to 4 claiming themselves to be exclusive owner of the disputed premises, the petitioner is necessary party. Learned counsel submitted that if the petitioner is not impleaded as party to the proceedings, his rights are likely to be adversely affected. Learned counsel submitted that in view of the fact that a partition suit preferred by the petitioner regarding the property in question is pending decision, it is just and proper that the petitioner is impleaded as party to the proceedings. In this regard, learned counsel has relied upon a decision of this court in the matter of "Hari Kishan Modi v. Smt. Santosh & Ors.", 2008(2) DNJ (Raj.) 581. 4. On the other hand, learned counsel appearing for the respondent-caveator supporting the order impugned passed by the Rent Tribunal, submitted that in a petition preferred for eviction of the tenant under the provisions of the Act of 2001, a landlord can file a petition even if he is not owner of the property and therefore, the alleged dispute regarding the ownership between the parties cannot be a ground for impleading the petitioner as party to the proceedings. Learned counsel submitted that the petition preferred for eviction wherein the landlord and tenant relationship is not in dispute, cannot be converted into a suit for determination of title. Accordingly, it is submitted that the order impugned passed by the Rent Tribunal does not warrant any interference by this court. 5. I have considered the rival submissions and perused the material on record. 6. Indisputably, a contract of tenancy between landlord and tenant must exist before the landlord can file a suit for eviction under the provisions of Act of 2001. The words "landlord" and "tenant" stand defined under Section 2(c) & 2(i) of the Act of 2001 respectively. 5. I have considered the rival submissions and perused the material on record. 6. Indisputably, a contract of tenancy between landlord and tenant must exist before the landlord can file a suit for eviction under the provisions of Act of 2001. The words "landlord" and "tenant" stand defined under Section 2(c) & 2(i) of the Act of 2001 respectively. In order to appreciate the issue involved, it will be appropriate to reproduce the provisions of Section 2(c) & 2(i) of the Act of 2001, which read as under:- "2(c) "landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent,trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant; 2(i) "tenant" means- (i)the person by whom or on whose account or behalf rent is, or but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by an order or decree for eviction passed under the provisions of this Act; and (ii) in the event of death of the person referred to in sub-clause(i), (a) in cases of premises let out for residential purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily residing with him in such premises as member of his family upto his death; (b) in case of premises let out for commercial or business purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily carrying on business with him in such premises as member of his family upto his death." 7. A bare perusal of the definition of "landlord" quoted hereinabove makes it abundantly clear that the ownership of the premises is not the essential characteristic of a landlord, rather, it is the receipt of the rent or the entitlement to receive the rent. The definition of "landlord" as set out u/s 2(c) is very wide and it includes in itself even the persons who are not actual landlords in common parlance. The definition of "landlord" as set out u/s 2(c) is very wide and it includes in itself even the persons who are not actual landlords in common parlance. Thus, for the determination of the question of landlord and tenant relationship in a suit for eviction under the provisions of the Act of 2001, the question of title or ownership of the premises is not required to be gone into, but, the questions with regard to the landlord and tenant relationship, their rights and liabilities arising in the matter have to be determined. 8. It is to be noticed that in the instant case, the respondent tenant has not denied the relationship of landlord and tenant and the entitlement of the landlord, the respondent no.1 to 4 herein to receive the rent of the premises, has also not been disputed. The petitioner herein might have filed the suit for partition against his brother and other co-sharers of the properties but on that account, he cannot be permitted to inter meddle in the proceeding initiated by the respondent-landlord against the tenant under the provisions of Act of 2001. Suffice it to say that the petition for eviction preferred by the respondent-landlord, cannot be converted into a suit for determination of title over the rented premises. In any case, ownership right of the petitioner, if any, in the disputed premises, is not likely to be adversely affected, on account of the questions raised in the petition being appropriately determined by the Rent Tribunal. 9. The decision in Hari Kishan Modi's case (supra) relied upon by the counsel appearing for the petitioner, this court declined to interfere with the order passed by the Rent Tribunal allowing an application preferred under Order I Rule 10 CPC preferred by the brother of the petitioner therein in a petition preferred seeking eviction of the tenant. However, in the considered opinion of this court, the said decision does not lay down any law in this regard and therefore, the same does not help the petitioner in any manner. 10. In view of the discussion above, in the considered opinion of this court, the order impugned passed by the Rent Tribunal, does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 11. 10. In view of the discussion above, in the considered opinion of this court, the order impugned passed by the Rent Tribunal, does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 11. In the result, the writ petition fails, it is hereby dismissed. No order as to costs.Petition Dismissed. *******