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Rajasthan High Court · body

2014 DIGILAW 620 (RAJ)

Hatim Ali v. Smt. Nayan Kumari

2014-03-04

SANGEET LODHA

body2014
JUDGMENT 1. - This petition is directed against order dated 27.11.13 of the Rent Tribunal, Udaipur, whereby an application preferred by the respondents-landlord for examination of the petitioner-tenant under Order 10, Rule 2 CPC, has been allowed. 2. The relevant facts are that the respondents preferred a petition for eviction and recovery of rent against the petitioner. The eviction of the petitioner from the premises let out, a shop, is sought on the grounds of default in payment of rent, reasonable & bona fide necessity, sub letting and availability of alternate accommodation adequate for the requirement of the tenant. The rent petition is being contested by the petitioner by filing a reply thereto. In the reply filed, the petitioner has denied the landlord-tenant relationship. 3. During the pendency of the petition, the respondents preferred an application before the Rent Tribunal praying for examination of the petitioner under Order 10, Rule 2 CPC, stating therein that while denying the landlord-tenant relationship, the petitioner has claimed that he is occupying the premises by inheritance, however, no document has been produced by the petitioner in this regard despite directions issued by the Tribunal. It was contended that the petitioner has not disclosed any basis for his possession as alleged whereas, the petitioner got transferred the electricity connection from the disputed premises showing himself as tenant. 4. The application was contested by the petitioner by filing a reply thereto, taking the stand that the question with regard to the title over the property is not required to be gone into by the Rent Tribunal. It was stated that the petitioner has denied the landlord and tenant relationship and therefore, the landlord cannot be permitted to question as to from whom the petitioner has taken the disputed premises on rental basis. It was contended that the provisions of Civil Procedure Code (CPC), 1908 are not applicable to the proceedings under the Rajasthan Rent Control Act, 2001 ( for short "the Act of 2001"). 5. After due consideration of the rival submissions, the application preferred has been allowed by the Rent Tribunal observing that the evasive reply given by the petitioner herein needs to be interfered with by the Rent Tribunal. 5. After due consideration of the rival submissions, the application preferred has been allowed by the Rent Tribunal observing that the evasive reply given by the petitioner herein needs to be interfered with by the Rent Tribunal. The Tribunal observed that it needs to be clarified as to whether the petitioner claims ownership over the premises by inheritance or occupation over the premises as tenant by inheritance in terms of provisions of Section 2(i)(ii) of the Act of 2001. The Tribunal observed that the applicability of the provisions of CPC is not prohibited under the provisions of Act of 2001 and therefore, the Rent Tribunal is competent to direct examination of the parties to the proceedings for clarification of the disputed questions emerging from the pleadings of the parties. Accordingly, the application stands allowed by the order impugned. Hence, this petition. 6. Learned counsel for the petitioner contended that the Rent Tribunal has erred in holding that the petitioner has not clarified whether he is claiming inheritance about the ownership of the property or the tenancy. Learned counsel submitted that the petitioner has denied the landlord-tenant relationship and has taken a categorical stand that he has inherited the possession. Learned counsel submitted that the question of ownership is not raised by the petitioner and it cannot be even gone into by the Rent Tribunal while deciding the petition preferred by the respondents claiming themselves to be landlord, for eviction of the petitioner. Learned counsel submitted that the provisions of CPC are not applicable to the proceedings before the Rent Tribunal and therefore, the order impugned passed by the Rent Tribunal invoking the provisions of Order 10, Rule 2 CPC is ex facie without jurisdiction. Learned counsel submitted that admittedly, the burden to prove landlord and tenant relationship is on the respondents-landlord and not on the petitioner and therefore, the question of examination of the petitioner on the issue regarding landlord and tenant relationship even before framing of the issues by the Rent Tribunal, does not arise. 7. On the other hand, learned counsel appearing for the respondents submitted that taking into consideration the pleadings of the parties, in the interest of justice, the Rent Tribunal was absolutely justified in directing examination of the petitioner under Order 10, Rule 2 CPC for clarification of the evasive averments made in the petition regarding the landlord and tenant relationship/ownership over the disputed premises. Learned counsel submitted that as per provisions of Section 21 of the Act of 2001, the Rent Tribunal is not bound to follow the procedure laid by the CPC but it can always apply the procedure laid down whenever required for complete and effective adjudication of the controversy involved. 8. I have considered the rival submissions and perused the material on record. 9. It is true that the Rent Tribunal and the Appellate Rent Tribunal are not bound by the procedure laid down under CPC and the proceedings before the Rent Tribunal and Appellate Rent Tribunal shall be guided by the principle of natural justice and subject to other provisions of the Act or the Rules made thereunder, the Rent Tribunal and the Appellate Rent Tribunal have powers to regulate their own procedure. But then, it is not precluded from applying the principles underlying various provisions of CPC including the provisions of Order 10, Rule 2 CPC for the purpose of elucidating the matters in controversy in the suit. In this view of the matter, the contention of the learned counsel for the petitioner regarding non applicability of the provisions of CPC in the proceedings before the Rent Tribunal is devoid of any merit. 10. It is to be noticed that under the provisions of Order 10, Rule 2 CPC, the court is empowered to examine orally, such of the parties to the proceedings as it deems fit with a view to elucidating the matters in controversy. But then, the discretionary power conferred under Order 10, Rule 2 has to be exercised by the court after objective consideration of the pleadings of the parties. The examination of the party to the proceeding under the said provision is made not with a view to take evidence but, so as to ascertain the real matter in controversy in the proceeding. 11. Adverting to the facts of the present case, it is to be noticed that in the reply filed, the petitioner herein, has denied the landlord and tenant relationship but has not claimed ownership of the disputed premises. That apart, in para no. 7 of the reply, the petitioner has stated that earlier his father used to carry on business in the disputed premises; at present, the petitioner is doing business therein along-with his son and in future, his successors would be doing business therein. That apart, in para no. 7 of the reply, the petitioner has stated that earlier his father used to carry on business in the disputed premises; at present, the petitioner is doing business therein along-with his son and in future, his successors would be doing business therein. It is pertinent to note that while denying the landlord and tenant relationship, the petitioner has claimed that he is occupying the premises by inheritance but has not claimed the ownership of the premises. In this view of the matter,in the considered opinion of this court, no further clarification regarding the fact whether the petitioner is claiming inheritance about the property or tenancy, is required. 12. There is yet another aspect of the matter. It goes without saying that a contract of tenancy between landlord and tenant must exist before the landlord can file an application 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. A bare perusal of the definition of "landlord" 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. Thus, in a petition preferred by the landlord, seeking eviction of the tenant 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. 13. In view of the discussion above, on the facts and in the circumstances of the case, when the averments made by the petitioner denying the landlord and tenant relationship are not found to be evasive and as noticed above, since he has not claimed the ownership over the premises in question, no clarification as observed by the Rent Tribunal is required in the matter and therefore, the order impugned passed by the Rent Tribunal is not sustainable in the eyes of law. 14. In the result, the petition succeeds, it is hereby allowed. 14. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 27.11.13 passed by the Rent Tribunal, Udaipur is set aside. No order as to costs.Petition Allowed. *******