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2014 DIGILAW 741 (RAJ)

Braham Prakash v. Jeevan Manoj Kumar

2014-03-21

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 24.01.2014 passed by the Additional District Judge No.2, Bikaner, whereby the judgment and decree dated 04.01.2012 passed by the Civil Judge (Junior Division), Nokha, Bikaner has been upheld. 2. The facts in brief may be noticed thus: the plaintiff filed the suit seeking possession of the suit property situated at Nokha after giving notice under Section 106 of the Transfer of Property Act,1882 ('the Act of 1882'). 3. In the written statement besides questioning the validity of the said notice, it was also submitted that as the Rajasthan Rent Control Act, 2001 ('the Act of 2001') has not been made applicable to Nokha, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act of 1950') would be applicable and the suit was, therefore, not maintainable. 4. The trial court after considering the various submissions, upheld the validity of notice under under Section 106 of the Act of 1882 and also came to the conclusion that with the promulgation of Act of 2001, the Act of 1950 stood repealed and, therefore, the suit was maintainable under the provisions of the Act of 1882 and, consequently, passed the decree for possession. 5. Feeling aggrieved, first appeal was filed and the same issues were again raised; the first appellate court after discussing the issue raised reiterated the findings recorded by the trial court and came to the conclusion that the notice under Section 106 of the Act of 1882 was valid and the suit was maintainable and upheld the judgment and decree passed by the trial court. 6. In the present appeal, issue regarding the maintainability of the suit under the Act of 1882 was reagitated and it was submitted that as the grounds set out in Section 13 of the Act of 1950 were neither pleaded nor proved the suit was not maintainable. 7. Submissions were made that the Act of 2001 and its provision relating to repeal does not apply to a place, where the Act of 2001 is not applicable and, therefore, the Act of 1950 continues to be in force. 8. Learned counsel for the respondent opposed the submissions and submitted that the issue has been decided by this Court more than once, and there is no substance in the submissions made. 9. I have considered the rival submissions. 10. 8. Learned counsel for the respondent opposed the submissions and submitted that the issue has been decided by this Court more than once, and there is no substance in the submissions made. 9. I have considered the rival submissions. 10. This Court in the case of Ram Narayan v. Smt. Asha Devi, 2010 (3) RLW 2426 (Raj.) held and observed as under:- "In view of the aforesaid discussion in my view, the Rajasthan Rent Control Act, 2001 has been made applicable w.e.f. 1.4.2003 to those areas mentioned in the notification dated 21.3.2003 issued in exercise of the powers conferred under sub-section (2) and (3) of Section 1 of the New Act 2001 and not in any other area and on repeal of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Old Act, 1950, it shall not be applicable to the areas which have not been made applicable under the New Act by notification dated 21.03.2003. All these matters relating to a suit filed under Section 106 of the Transfer of Property Act and have been decreed by the trial Court and on an appeal the decree of the trial court has been affirmed. There is concurrent finding of facts recorded by the Courts below in respect of the appeals challenging judgment and decree of eviction and therefore, I do not find any error in the concurrent finding of facts recorded by two courts below." The said judgment has been followed by this Court in the case of Nand Kishore & Anr. v. Vishwanath Kayal : 2013 (1) CDR 270 (Raj.) wherein, it was held and observed as under:- "17. The net result of all this discussion is that no different view is possible to be taken from the one taken by the learned Single Bench of this Court in the case of Ram Narain & Ors. v. Smt. Asha Devi & Ors. (supra) even in the light of Section 27 of the Act. Thus, it is held that after the repeal of the old Act and commencement of the new Act with effect from 1.4.2003, presently the provisions of the old Act are not applicable also to the areas of other Municipal Towns of the State of Rajasthan and the relationship between a landlord and tenant is to be governed by the provisions of the Transfer of Property Act." 11. Another issue raised based on the language of the notification was considered by this Court in Bhanwar lal v. Ram Avtar, S.B. Civil Revision Petition No.197/2012 decided on 06.12.2013 and it has been held that on account of provisions of Section 32 of the Act of 2001, the Act of 1950 stood repealed irrespective of the fact whether the same was made applicable to a particular place or not. 12. Consequently, the issue raised has no substance. 13. Besides the above, the another issue raised is that the notice under Section 106 of the Act of 1882 has not been given by proper person. Both the courts below concurrently found that notice sent by Jeevraj on behalf of firm M/s. Jeevraj Manoj kumar was proper. No substantial question of law arises on the said consideration. 14. Consequently, there is no substance in the appeal and the same is, therefore, dismissed. 15. Learned counsel for the appellant prays for extra time for vacating the suit premises. 16. In the facts and circumstances of the case, wherein the premises involved is a Shop, the appellant is granted period till 30th September, 2014 to vacate the suit premises on the following conditions:- (i) the appellant shall submit an undertaking supported by affidavit before the trial court within 3 weeks from today to the effect that on or before 30th September, 2014, he shall handover the peaceful and vacant possession of the suit premises to the plaintiff-respondent. He shall also undertake not to cause any damage to the suit premises nor to make any alternation and not to assign/sublet or in any manner part with possession to any other person and not to put the premises to any use other than the present use and not to cause any nuisance. (ii) the appellant shall deposit within three weeks the arrears, if any, of the rent/mesne profit and of the decretal amount and shall further pay to the landlord the amount for use and occupation of the suit premises @ Rs. 60/- per month w.e.f. 01st March, 2014 or deposit the same in the saving bank account of the respondent month by month on or before 15th day of the next month. 60/- per month w.e.f. 01st March, 2014 or deposit the same in the saving bank account of the respondent month by month on or before 15th day of the next month. The respondent or learned counsel for the respondent will give the details of the bank account, in which, the arrears of rent or mesne profit/month to month mesne profit will be deposited, to the appellant or counsel for the appellant within a period of two weeks from today. (iii) it is made clear that in case the appellant do not comply with any of the aforesaid conditions or violate any terms of the undertaking, then it will be open for the respondent landlord to get the decree executed forthwith in accordance with law. The stay application is also dismissed.No costs.Appeal dismissed. *******