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2015 DIGILAW 298 (RAJ)

Dr. Vijay Kumar v. Baljeet Singh

2015-02-02

ALOK SHARMA

body2015
JUDGMENT 1. - This petition challenges the judgment dated 24.9.2014 passed by the Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur whereby the judgment dated 12.10.2011 passed by the Rent Tribunal, Jaipur Metropolitan, Jaipur dismissing the respondent landlord's (hereinafter 'the landlord') eviction petition under section 9(k) of the Rajasthan Rent Control Act, 2001 (hereinafter 'the Act of 2001') has been set aside and the eviction of the petitioner tenant (hereinafter 'the tenant') directed while simultaneously issuing a certificate of possession in favour of the landlord. 2. The relevant facts briefly stated are that the landlord filed an eviction petition on 1.2.2007 under section 9(k) of the Act of 2001 against the tenant before the Rent Tribunal, Jaipur Metropolitan, Jaipur stating that since 5.8.2004 the Dental Clinic of the tenant in the rented premises was closed (over two years) and consequently the tenant was liable to be evicted on the ground of non-user for a continuous period of more than six months preceding the date of filing of the eviction petition. Inevitably on receipt of notice, a reply of denial was filed by the tenant. It was stated that the tenant was in regular use of tenanted premises for his business/ profession and the eviction petition was a mere abuse of the process of the Court in as much as the earlier suit for eviction filed by the landlord under the Rajasthan Rent Control Act, 1950 (hereinafter 'the Act of 1950') on the ground of default, sub-letting and bona fide and reasonable necessity had been dismissed by the Addl. Chief Judicial Magistrate No.6, Jaipur City, Jaipur on 9.12.2003, as was the appeal there-against by the Addl. District Judge No.6, Jaipur Metropolitan, Jaipur on 5.8.2004. Albeit a second appeal under section 100 CPC at the instance of the landlord was pending before this Court. It was stated that the landlord was determined to somehow obstruct the use of tenanted premises and in-fact on an application made by the tenant before the Munsif (East) Jaipur vide order dated 30.5.1989 it was directed that the tenant be allowed to use and enjoy the tenanted premises and water connection thereto be restored /allowed without express consent of the landlord. 3. On the basis of the pleadings of the parties the Rent Tribunal, Jaipur Metropolitan, Jaipur framed two issues which loosely translated were: 1. 3. On the basis of the pleadings of the parties the Rent Tribunal, Jaipur Metropolitan, Jaipur framed two issues which loosely translated were: 1. As to whether the tenant had for a continuous period of over six months immediately preceding filing of the eviction petition not used the tenanted premises for the purpose they were let out for, without there being a reasonable cause; and 2. As to whether by non-user of the tenanted premises they had fallen into disrepair and thus been materially altered supplying the landlord an additional ground for the tenant's eviction. 4. The landlord examined himself as PW1 before the Rent Tribunal, Jaipur Metropolitan, Jaipur and filed seven documents as Ex.1 to 7 which were bills of the Jaipur Vidhyut Vitaran Nigam Limited (hereinafter 'the JWNL') evidencing 0' consumption of electricity in the tenanted premises for more than six months preceding the filing of the eviction petition. The tenant in defence examined himself as DW1, Deepak Bahadur as DW2, Ramjilal Sain as DW5 and Babulal Chandel as DW6. He also relied upon 12 documents marked as Ex.A/1 to A/12. In the course of arguments the landlord abandoned issue No.2 framed by the Tribunal and confined himself to agitating the ground for eviction under section 9(k) of the Act of 2001. 5. The Rent Tribunal, Jaipur Metropolitan, Jaipur on consideration of the evidence negated the case set up by the landlord on the ground that Ex.1 to 7 relied upon by him were adequately explained and negated by the tenant and the case of the tenant in defence was further bolstered by the evidence of DW2- Deepak Bahadur, DW5-Ramjilal Sain and DW6-Babulal Chandel apparently establishing that the tenant premises were not in disuse (non-user) as alleged in the eviction petition but contrarily were being used by the tenant for carrying out his business/ profession as a Dentist. The Rent Tribunal, Jaipur Metropolitan also relied upon the tenant's Ex.A/1 to A/12 which were letters, greeting cards and pamphlets address to the tenant at the tenanted premises to hold that therefrom the defence of the tenant against section 9(k) of the Act of 2001 was established. The eviction petition was dismissed. 6. The Rent Tribunal, Jaipur Metropolitan also relied upon the tenant's Ex.A/1 to A/12 which were letters, greeting cards and pamphlets address to the tenant at the tenanted premises to hold that therefrom the defence of the tenant against section 9(k) of the Act of 2001 was established. The eviction petition was dismissed. 6. An appeal under section 19 of the Act of 2001 at the instance of the landlord against the judgment dated 12.10.2011 passed by the Rent Tribunal, Jaipur Metropolitan, Jaipur was however decided by the Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur in favour of the landlord consequent to which the judgment dated 12.10.2011 passed by the Rent Tribunal, Jaipur Metropolitan, Jaipur was set aside, a judgment of eviction passed against the landlord and a certificate of possession issued in favour of tenant. Hence this petition. 7. Mr. Ajay Gupta counsel for the tenant has submitted that the judgment dated 24.9.2014 passed by the Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur is perverse to the evidence on record. He submitted that there was no good ground / reason before the Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur to negate the findings of fact by the Rent Tribunal, Jaipur Metropolitan, Jaipur that the landlord has not been able to establish non-user of the tenanted premises for a continuous period of more than six months prior to the laying of the eviction petition. Counsel submitted that on a wholistic appreciation of the evidence on record, the Rent Tribunal, Jaipur Metropolitan, Jaipur had rightly concluded that Ex.1 to Ex.7 being the bills of JWNL pertaining to electricity connection at the tenanted premises showing consumption as 0' units for more than six months, were not sufficient to establish that the tenanted premises were not put to use during the period. It has been submitted that the effect of the landlord's evidence as per Ex.1 to Ex.7 aforesaid was wholly explained and negated for reason of a faulty meter not reflecting the actual electricity consumption at the tenanted premises during the period in issue. Counsel submits that the neighbours of the rented shop DW-5 Ramjilal Sain and DW6- Babulal Chandel as also the employee of the tenant working at the shop DW2-Deepak Bahadur had established from their unshaken evidence that the tenant was carrying out his business/ profession as a Dentist from the said shop on a regular basis. Counsel submits that the neighbours of the rented shop DW-5 Ramjilal Sain and DW6- Babulal Chandel as also the employee of the tenant working at the shop DW2-Deepak Bahadur had established from their unshaken evidence that the tenant was carrying out his business/ profession as a Dentist from the said shop on a regular basis. The Appellate Rent Tribunal has found no fault with the conclusions of the Rent Tribunal and yet over-turned the said findings as if it was the Court of original jurisdiction. This vitiates the judgment of the Appellate Rent Tribunal. Counsel has thus prayed that therefore the judgment of the Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur be set aside and that of the Rent Tribunal, Jaipur Metropolitan, Jaipur be restored consequent to which the eviction petition laid under section 9(k) of the Act of 2001 filed by the landlord be dismissed. 8. I have heard counsel for the tenant and perused the judgments of the Rent Tribunal as also the Appellate Rent Tribunal. 9. The Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur is the final court of fact and has the jurisdiction to address the evidence. The Hon'ble Apex Court in the case of Arumugham v. Sundarambal, 1994(4) SCC 350 albeit in the context of the jurisdiction of the Court under section 100 CPC the Hon'ble Apex Court, has held that no interference with the judgment of the first appellate court can be made only on the ground that it had not come into close grips with the reasoning of the trial court as it is open to the first appellate court to consider the evidence adduced by the parties and give its own findings for accepting the evidence of one side or rejecting the evidence of other other side. To my mind therefore there is no substance in the contentions of the counsel for the tenant that the Appellate Rent Tribunal did not come to the grips with the findings of the Rent Tribunal while upsetting the said findings and substituting them with its own. Further, in my considered opinion the Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur has exercised its jurisdiction as vested in it properly taking into consideration the over-all evidence in the case. Further, in my considered opinion the Appellate Rent Tribunal, Jaipur Metropolitan, Jaipur has exercised its jurisdiction as vested in it properly taking into consideration the over-all evidence in the case. It has thereupon concluded that the Rent Tribunal, Jaipur Metropolitan, Jaipur on the basis of the defence evidence before it had wrongly held that the effect of Ex.1 to Ex.7 filed by the landlord evidencing 0' consumption for about two years before laying of the eviction petition qua tenanted shop had been negated by the defence evidence. The Appellate Rent Tribunal has specifically referred to and negated the defence set up by the tenant founded upon a purportedly defective meter in the tenanted premises showing electricity consumption as 0' unit, on the ground that no application before the JVVNL was filed for rectification of the meter nor actual consumption of electricity during this period paid for subsequent to the rectification by the tenant. Further the Appellate Rent Tribunal has also noted from the evidence on record that the tenant admitted that it was mandatory for a Dentist to keep a record of his patients treated at the Dental Clinic and yet for the relevant period 2005-08 the tenant had not filed any evidence with regard to the patients treated by him at the Dental Clinic. The Appellate Rent Tribunal has further considered the evidence of DW2- Deepak Bahadur asserting that he was paid Rs. 3700/- p.m as wages while working at the tenanted premises and held that the oral statement was not corroborated by documentary proof in support thereof and hence not good evidence on the probabilities of the case. Dealing with the evidence of DW5-Ramjilal Sain and DW6- Babulal Chandel, the Appellate Rent Tribunal has noted that the said witnesses were themselves tenants and hence inimical to the landlord and their evidence was therefore not credible enough to over-ride or wash out the substantive evidence of the landlord with regard to non-user of the tenanted premises being established from 0' consumption of electricity in the tenanted premises in issue from JVVNL's bills for electricity connection during the period. It was held that it was absolutely impossible to suggest, as the tenant, had done that a Dental Clinic could be functional without an electricity connection. Referring to documentary evidence Ex. It was held that it was absolutely impossible to suggest, as the tenant, had done that a Dental Clinic could be functional without an electricity connection. Referring to documentary evidence Ex. A/1 to A/12 the Appellate Rent Tribunal further recorded that the said documents were letters, greeting cards received at the tenanted shop and the pamphlets published referring to the dental clinic at the tenanted shop which by itself was not enough to establish the use of the tenanted shop for the purpose for which it was let out. Based on these evidences the Appellate Rent Tribunal has held that the ground for eviction under section 9(k) of the Act of 2001 was made out consequent to which the judgment dated 12.10.2011 passed by the Rent Tribunal, Jaipur Metropolitan, Jaipur holding to the contrary was liable to be set aside and the eviction petition entitled to succeed. 10. In my considered opinion within the scope of Article 227 of the Constitution of India which confers superintending powers on this Court over subordinate courts and tribunals, there is no occasion to interfere with the well considered conclusions of the Appellate Rent Tribunal as the final court of fact. The impugned judgment dated 24.9.2014 passed by the Appellate Rent Tribunal does suffer from any excess of jurisdiction, perversity or misdirection in law. 11. I find no force in the petition. Accordingly dismissed.Petition Dismissed. *******