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2016 DIGILAW 495 (RAJ)

Santosh Bafna v. Ritu Nalvaya

2016-04-06

SANGEET LODHA

body2016
JUDGMENT Sangeet Lodha, J. This petition is directed against order dated 26.10.15, passed by the Rent Tribunal,Udaipur, in Rent Case No.920/14, whereby an application preferred by the petitioner under Section 21 of Rajasthan Rent Control Act, 2001 ( for short "the Act"), praying for striking off the defence of the respondent and allowing the petition for eviction and recovery of rent and the damages for the use and occupation, stands rejected. 2. The relevant facts are that the petitioner-landlord leased out a premises measuring 700 sq. ft. to the respondent for a period of five years for running a restaurant. The respondent defaulted in payment of rent and closed the business after a few months. The petitioner issued notice to the respondent for payment of due rent but the same was not paid. The respondent was served with notice under Section 106 of the Transfer of Property Act,1882 (for short "the Act of 1882") and thereafter, the petitioner preferred a petition for recovery of arrears of rent and possession of the leased property as also claiming damages for use and occupation. 3. The petition is being contested by the respondent by filing a reply thereto as also a counter claim, taking the stand that she could not get the license to run the restaurant as the petitioner did not deposit Urban Development Tax. That apart, it is also pleaded by the respondent that the petitioner has removed the water tank, created hindrance in access to the terrace and also blocked the passage. 4. The petitioner filed a rejoinder to the reply filed on behalf of the respondent and thereafter, preferred an application under Section 21 read with Section 151 and Order 38, Rule 5 and Order 12, Rule 6 CPC. The application was rejected by the Rent Tribunal vide order dated 30.1.15. Thereafter, the petitioner filed yet another application under Section 21 of the Act as aforesaid, which stands rejected by the order impugned. Hence, this petition. 5. Learned counsel appearing for the petitioner contended that the respondent has admitted in the reply that he has not paid the rent since September, 2012 and as such, the default in payment of rent stands proved. Hence, this petition. 5. Learned counsel appearing for the petitioner contended that the respondent has admitted in the reply that he has not paid the rent since September, 2012 and as such, the default in payment of rent stands proved. Learned counsel would submit that in terms of the condition 12 and 14 of the lease deed, on failure of the respondent in payment of rent, the tenancy stood terminated and therefore, the petition filed by the petitioner after service of the notice in terms of Section 106 of the Act of 1882, deserves to be allowed. Learned counsel submitted that as per provisions of Section 114 of the Act of 1882, the petitioner had right to defend the case only if she had deposited arrear of rent and expenses within 15 days from the hearing of the petition. Learned counsel submitted that even as per provisions of Section 111, on breach of the condition of the lease, the lessor may re-enter in the premises. Accordingly, it is submitted that ignoring the legal position, the order impugned passed by the Rent Tribunal rejecting the application preferred by the petitioner is not sustainable in the eyes of law. 6. On the other hand, the counsel appearing for the respondent submitted that an application preferred by the petitioner earlier on the similar ground stood rejected by the Rent Tribunal vide order dated 30.1.15, which has attained finality and therefore,the fresh application preferred by the petitioner under Section 21 of the Act was not even maintainable. Learned counsel urged that the respondent has taken the specific stand that the default in payment of rent is attributed to the lessor himself and therefore, this contentious issue has to be determined by the Rent Tribunal, on the basis of the evidence to be led by the parties and therefore, the question of striking off the defence of the petitioner and allowing the petition, does not arise. Learned counsel submitted that the order impugned passed by the Rent Tribunal does not suffer from any infirmity or illegality warranting interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 7. I have considered the rival submissions and perused the material on record. 8. Learned counsel submitted that the order impugned passed by the Rent Tribunal does not suffer from any infirmity or illegality warranting interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 7. I have considered the rival submissions and perused the material on record. 8. It is to be noticed that before filing the application which stands rejected by the Rent Tribunal by the order impugned, the petitioner had preferred an application under Order 12, Rule 6 , seeking attachment of the property before the decree, which stood rejected by the court, vide order dated 30.1.15 and the appeal preferred by the petitioner aggrieved thereby, also stands dismissed by the Appellate Rent Tribunal, which has attained finality. 9. It is true that the factum of non payment of rent for the period from September, 2012 to January, 2014, stands admitted by the respondent. But then, in the reply to the petition filed, the respondent has taken a categorical stand that the default in payment of rent, has been caused on account of the fault on the part of the petitioner in not depositing the Urban Development Tax and thus, created the situation wherein the petitioner could not use the premises for the purpose it was let out. Suffice it to say that according to the respondent, the default in payment of rent is attributed to the petitioner. That apart, the petitioner has also filed counter claim seeking suspension of the rent for the period from September, 2012 to April, 2014 and thus, the contentious issue between the parties has to be decided by the Rent Tribunal, on the basis of the evidence to be led by the parties. In this view of the matter, in the considered opinion of this court, the order impugned passed by the court below after due consideration of the provisions of Section 111 (g) and 114 of the Act of 1881, objectively, does not suffer from any jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. In the result, the petition fails, it is hereby dismissed. No order as to costs.