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2015 DIGILAW 455 (RAJ)

Shankar Lal Singhvi v. Khairoon

2015-02-18

GOVIND MATHUR, P.K.LOHRA

body2015
JUDGMENT : Govind Mathur, J. Feeling disdained by the impugned judgment and order dated 17th September, 2014 of the learned Single Judge, appellant-tenant has laid this intra-court appeal. By the impugned judgment and order, the learned Single Judge allowed the writ petition of the respondents-landlords by setting aside the judgment and order dated 18th November, 2011 passed by the learned Appellate Rent Tribunal, Bhilwara, restoring the order of eviction and revision of rent dated 15th April, 2009 passed by the learned Rent Tribunal, Bhilwara. 2. The facts apposite, for the purpose of this appeal, are that the respondents-landlords filed an application under Sections 6 and 9(i) & (k) of the Rajasthan Rent Control Act, 2001 (for short, 'Act of 2001') before the Rent Tribunal, Bhilwara for revision of rent and eviction of appellant from the rented premises on the ground of bona fide requirement and non-user of premises without reasonable cause for a continuous period of more than six months immediately preceding the institution of the application. The application laid by the respondents-landlords was contested by the appellant by filing reply. Subsequently, the respondents also submitted additional pleadings. 3. After considering the evidence of rival parties, the learned Rent Tribunal, vide its judgment and order dated 15th April 2009, allowed the application of the respondents-landlords by revising the rent @ Rs.1650/- per month from the date of filing of the application and further ordered enhancement of rent @ 5% per annum as per the provisions of the Act of 2001. The learned Rent Tribunal also ordered eviction of the appellant-tenant from the rented premises, while deciding ground of bona fide necessity in favour of respondents-landlords as well as for non-user of the premises. A certificate to this effect was issued by the learned Rent Tribunal. 4. Appalled by the judgment and order dated 15th April, 2009 and the certificate issued, the appellant-tenant preferred an appeal before the learned Appellate Rent Tribunal, Bhilwara. The learned Appellate Rent Tribunal, Bhilwara allowed the appeal of the appellant-tenant, by its judgment and order dated 18th of November 2011 and set aside the judgment and order dated 15th April, 2009 passed by the learned Rent Tribunal, Bhilwara precisely on the ground that respondents-landlords have failed to prove bona fide necessity of the premises. 5. The learned Appellate Rent Tribunal, Bhilwara allowed the appeal of the appellant-tenant, by its judgment and order dated 18th of November 2011 and set aside the judgment and order dated 15th April, 2009 passed by the learned Rent Tribunal, Bhilwara precisely on the ground that respondents-landlords have failed to prove bona fide necessity of the premises. 5. Being dismayed by the judgment and order of the learned Appellate Rent Tribunal, the respondents-landlords invoked the writ jurisdiction of this Court. In the writ petition, it is, inter alia, pleaded by the respondents-landlords that learned Appellate Rent Tribunal has simply considered the issue relating to bona fide requirement of the landlord for the rented premises and, as a matter of fact, on the ground of non-user of the premises for eviction and enhancement of rent, no argument was advanced by the appellant-tenant. With this plea, the respondents-landlords have urged that when the finding of the learned Rent Tribunal pertaining to non-user of the premises and revision of rent is not assailed by the appellant and the same has not been disturbed by the learned Appellate Rent Tribunal, it has seriously erred in annulling the order rendered by the learned Rent Tribunal. 6. At the threshold, notices were issued to the appellant on 15th May, 2012 to show cause as to why the petition for writ be not accepted, as prayed for. The notices were duly served, but none appeared on behalf of the appellant. On 14th March, 2014 when the matter came up before the Court, it was noticed that the office has not issued the notices for final disposal of the petition in terms of order dated 15th May, 2012, and therefore, it was ordered that let fresh notices be issued to appellant to show cause as the why writ petition may not be allowed as prayed for. Even after service of second notice, the appellant did not appear, and therefore, the learned writ Court heard the arguments and after considering the matter in its entirety allowed the writ petition. While allowing the writ petition, the learned Single Judge set aside the judgment and order dated 18th November, 2011 passed by the learned Appellate Rent Tribunal and restored the order of revision of rent and eviction passed by the learned Rent Tribunal dated 15th April, 2009. 7. Learned counsel for the appellant, Mr. While allowing the writ petition, the learned Single Judge set aside the judgment and order dated 18th November, 2011 passed by the learned Appellate Rent Tribunal and restored the order of revision of rent and eviction passed by the learned Rent Tribunal dated 15th April, 2009. 7. Learned counsel for the appellant, Mr. K.C. Samdariya, submits that the learned Single Judge has committed grave and serious error of law in finally deciding the petition after service of show-cause notice. Mr. Samdariya further submits that the show-cause notice nowhere envisage that petition is to be heard finally and it simply stipulates that petition will be heard and admitted ex-parte, and therefore, in want of proper service of notices to the appellant, the order impugned passed by the learned Single Judge is vitiated in law. Adverting to the merits of the case, learned counsel for the appellant has urged that the impugned order passed by the learned Single Judge cannot be sustained for the reason that the learned Single Judge has not reversed and set aside the finding on bona fide necessity recorded by the learned Appellate Rent Tribunal. In support of his contentions, learned counsel has placed reliance on following legal precedents :- (i) Shaikh Salim Haji Abdul Khayusmsab v. Kumar & Ors. [2005 AIR SCW 6031]. (ii) M/s. Nahar Enterprises v. M/s. Hyderabad Allwyn Ltd. & Anr. [2007 AIR SCW 6400]. (iii) Rishab Chand Bhandari & Anr. v. National Engineering India Ltd. [2009 CJ (Rent Control) 218]. 8. Per contra Mr. Usman Gani, learned counsel for the respondents, submits that appellant has shown total callousness in not putting in appearance before the learned writ Court despite receiving notices twice and as such no indulgence can be granted to him. Learned counsel for the respondents submits that at the threshold show-cause notice was issued accompanying copy of writ petition and in the subsequent show-cause notice, it was clearly recited as to why the writ petition may not be allowed and despite service of that notice too, the appellant has not cared to appear for contesting the petition. He, therefore, submits that learned Single Judge has rightly decided the writ petition ex-parte and the impugned judgment and order calls for no interference. Dilating on the merits of the case, Mr. He, therefore, submits that learned Single Judge has rightly decided the writ petition ex-parte and the impugned judgment and order calls for no interference. Dilating on the merits of the case, Mr. Usman Gani, would contend that, on the face of it, the judgment and order passed by the learned Appellate Rent Tribunal is legally not sustainable for the reason that the appellant has neither challenged the revision of rent ordered by the learned Rent Tribunal nor the other ground of eviction i.e. non-user of premises for a period of six months. Stoutly defending the impugned judgment and order, learned counsel submits that the learned Single Judge has rightly reversed and set aside the judgment and order passed by the learned Appellate Rent Tribunal, which warrants no interference in this intra-court appeal. 9. We have heard learned counsel for the parties, perused the impugned judgment and order and scanned the materials, which are placed before the learned Single Judge. 10. On a close scrutiny of the impugned judgment and order, we feel satisfied that the learned Single Judge has thrashed out the matter in its entirety. It is really strange that a litigant has shown total callousness and apathy towards a litigation inasmuch as despite service of notice twice, he has not chosen to put in appearance to contest the petition. The arguments advanced by the learned counsel that the learned Single Judge has decided the writ petition after service of mere show-cause notice appears to be quite alluring, but, in fact, the argument is fallacious for the reason that the Court has issued notices twice and in the second notice under the caption "show-cause notice" it was mentioned with clarity and precession "why the writ petition should not be allowed". If the appellant has not cared to see the recitals of the notice, then his so-called technical plea cannot be sustained. It may be observed here that even, in absence of the appellant, learned Single Judge has examined the matter on merits and has fully concurred with the afflictions of the respondents-landlords vis-a-vis their other ground for eviction namely non-user of the premises for more than six months as well as revision of rent. 11. It may be observed here that even, in absence of the appellant, learned Single Judge has examined the matter on merits and has fully concurred with the afflictions of the respondents-landlords vis-a-vis their other ground for eviction namely non-user of the premises for more than six months as well as revision of rent. 11. Though the scope of judicial review is very much limited in the intra-Court appeal, but still on persuasion by the learned counsel for the appellant, we have thoroughly scanned the entire record of the writ Court. There remains no quarrel that learned Rent Tribunal has passed the eviction order against the appellant on the ground of bona fide necessity and non-user of premises for six months and further it has ordered revision of rent. Before the learned Appellate Rent Tribunal, the appellant has challenged the finding of the learned Rent Tribunal with respect to bona fide necessity and that has persuaded the learned Appellate Rent Tribunal to reverse and set aside that finding without touching the finding on the other ground of eviction namely non-user of premises for more than six months as well as revision of rent. 12. Taking note of all these facts, learned Single Judge has rightly reversed and set aside the judgment and order passed by the learned Appellate Rent Tribunal by restoring the order passed by the learned Rent Tribunal. 13. The legal precedents on which learned counsel for the appellant has placed reliance are factually distinguishable and looking to the peculiar facts of the case, these precedents are of no assistance to the appellant. In M/s. Nahar Enterprises (supra), summons were served without copy of the plaint after date fixed for the hearing, and therefore, in these circumstances, Hon'ble Apex Court considered it sufficient ground to set aside ex-parte decree. In the instant case, no such facts are available and contrary to it notices were served twice on the appellant duly accompanied with the copy of the petition prior to the date of hearing. As such, ratio decidendi of the verdict does not help the cause of the appellant. In Rishabh Chand Bhandari's case (supra) the point in issue was not pleaded by the appellant before the learned Rent Tribunal and on the contrary appellant has admitted the averments of para 1 to 4 of the application, therefore, this judgment cannot render any assistance to the appellant. In Rishabh Chand Bhandari's case (supra) the point in issue was not pleaded by the appellant before the learned Rent Tribunal and on the contrary appellant has admitted the averments of para 1 to 4 of the application, therefore, this judgment cannot render any assistance to the appellant. The case of Shaikh Salim Haji Abdul Khayumsab (supra) is on Order 8, Rule 1 CPC, therefore, the said judgment is of no consequence and cannot come to the aid of the appellant. 14. Thus, we are fully concur with the impugned judgment and order passed by the writ court. The upshot of the above discussion is that no interference with the impugned judgment and order is warranted in this intra-court appeal. The appeal, therefore, fails and the same is, hereby, dismissed.