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2016 DIGILAW 565 (RAJ)

Shanti Devi Saksena v. Narendra Kumar Sethi

2016-04-22

MOHAMMAD RAFIQ

body2016
ORDER : Mohammad Rafiq, J. 1. This revision petition has been filed by the defendants-petitioners against order dt. 23.2.2015 passed by the Civil Judge and Judicial Magistrate (First Class), Nasirabad, District Ajmer (for short 'the trial Court') whereby application under Order 7 Rule 11 CPC filed by the petitioners-defendants has been dismissed. Aforesaid application was filed by the petitioners in a suit for eviction instituted by the respondent-plaintiff against the petitioners-defendants in the year 2005 under the provisions of Sec. 9 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short the Act of 1950'). Objection was raised by the defendants-petitioners about maintainability of the said suit on the premise that by virtue of Sec. 32 of the Rajasthan Rent Control Act, 2001 (for short 'the Act of 2001'), the Act of 1950 was repealed and, therefore, the suit for eviction under that Act could not be maintained. Application was dismissed by the trial Court vide order dt. 23.2.2015 on the premise that earlier also a similar application was moved by the defendants-petitioners on 05.01.2006 and the same was dismissed vide detailed order dt. 1.2.2006 on the premise that the disputed property was situated in cantonment area of Nasirabad and the trial Court rejected that application upholding the argument of the plaintiffs-respondents that in view of the law laid down by this Court in Smt. Chandra Kala vs. Smt. Jeewani, 1987 RLW 301, only the Central Government was competent to extend the applicability of the Act of 1950 and the same was extended by notification issued by the Central Government to the cantonment area of Nasirabad. The old Act of 1950 shall continue to apply and therefore, the suit would be maintainable. 2. Ms. Rekha Dixit, learned counsel for the petitioners argued that Act of 1950 was extended to the cantonment area of Nasirabad by virtue of notification issued by the Central Government under Sec. 3 of the Cantonments (Extension of Rent Control Laws), Act, 1957 (for short the Act of 1957). Once the act of 1950 stood repealed by the Act of 2001, new enactment has come to occupy the field with regard to disputes between the landlord and tenant, but the same has still not been extended to cantonment area of Nasirabad. Learned trial Court was not justified in holding the suit filed under the provisions of the Act of 1950 as maintainable. Learned trial Court was not justified in holding the suit filed under the provisions of the Act of 1950 as maintainable. It is argued that merely because a similar application was earlier rejected by order dt. 1.2.2006 by the trial Court, that would not be a reason for not entertaining the application subsequently filed by the petitioners-defendants, may be on the same premise because this question goes to root of the case. The defendants are not estopped from filing similar application again because there can be no estoppel against the statute. Learned counsel argued that judgment of this Court in Smt. Chandra Kala (supra) has been misconstrued and misapplied by the trial Court. Intact, in that case, it was held that after the original Act of 1950 was extended to cantonment area and subsequently, that Act was amended by Ordinance No. 26 of 1975, the amended provisions would net automatically apply to the cantonment area unless there was a fresh notification issued by the Central Government under Sec. 3 thereabout. Even otherwise, eviction suit in the present case was filed in the year 2005, almost four years after the repeal of the Act of 1950. 3. Per contra, Mr. Arvind Gupta and Mr. S.K. Jain, learned counsel for the respondent-plaintiff opposed the revision petition and submitted that question raised by the petitioners-defendants having already been decided by the trial Court vide earlier order dated 01.02.2006, same question could not be again allowed to be agitated. The defendants-petitioners are estopped from agitating same issue again and the revision petition would be barred by principle of res-judicata. It is argued that once the Act of 1950 was applied to the cantonment area by the Central Government vide notification issued under Sec. 3 of the Act of 1957, even if the Act of 1950 has been repealed by the State Legislature while enacting Act of 2001, so far as cantonment area in the State of Rajasthan is concerned, the Act of 1950 would continue to apply till another notification is issued by the Central Government under Sec. 3 extending applicability of the Act of 2001. Therefore, the Act of 1950 would be treated alive for the purpose of the suit filed under that Act in respect of the premises on rent in the cantonment area. Therefore, the Act of 1950 would be treated alive for the purpose of the suit filed under that Act in respect of the premises on rent in the cantonment area. It is submitted that even in the first instance, the Act of 2001 was extended to municipal towns, district headquarters and subsequently vide notification dt. 11.7.2014, it was extended to 12 more municipal towns, but it has yet not been extended to Nasirabad. Even otherwise, Act of 2001 cannot be applied to cantonment area of Nasirabad. 4. Even though the question, which the petitioners seek to raise, about maintainability or otherwise of civil suit filed by the respondent-plaintiff goes to the root of the matter, but the fact remains that earlier application under Order 7 Rule 11 CPC to this effect filed by the defendants-petitioners was already dismissed by the trial Court vide order dt. 1.2.2006 and the defendants-petitioners did not challenge that order, which ultimately attained finality. Another application on the same subject matter could not be, therefore, entertained by the trial Court. The Supreme Court in Y.B. Patil & Ors. vs. Y.L. Patil, AIR 1977 SC 392 held that the principles of res-judicata can be invoked not only in separate subsequent proceedings; they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceedings. The rejection of earlier application under Order 7 Rule 11 CPC by the trial Court filed subsequently with the same plea would, therefore, operate res judicata. The aforesaid judgment of the Supreme Court was followed by the Allahabad High Court in Smt. Rakesh Bala Aneja vs. Smt. Sushil Bajaj & Ors., 2012 (93) ALR 354 to hold that if the earlier application under Order 7 Rule 11 CPC has already been dismissed by the Court, similar second application is not maintainable. 5. Even then, despite non-maintainability of the application, nature of the issue, which the defendants-petitioners have raised, is such which ought to receive consideration at the outset because this question whether the Act of 1950 would survive for deciding disputes in a cantonment, even if it has been repealed by the State Legislature upon simultaneous enactment of the Act of 2001, can be decided even without recording of evidence. Law about extension of such enactments relating to rent control laws by virtue of notification issued by Central Government under Sec. 3 of the Act of 1957 has been succinctly explained by the Supreme Court in Brij Sunder Kapoor vs. I Additional District Judge & Ors., AIR 1989 SC 572 . Even this Court in Smt. Chandra Kala (supra) had held that after extension of original Act of 1950 to cantonment area by notification under Sec. 3 of the Act of 1957 by the Central Government, if the Act of 1950 undergoes a change by means of amendment, applicability of such amendment to the cantonment area would again require a fresh notification to be issued by the Central Government to that effect. In view of above discussion, this Court is not inclined to interfere with the impugned order passed by the learned trial Court. However, the revision petition is disposed off with direction to the trial Court to frame a specific issue whether suit filed by the plaintiff-respondent, in view of repealing of Act of 1950 by enforcement of Rajasthan Rent Control Act, 2001, was maintainable and whether the Act of 1950 would be treated alive and applicable to the cantonment area only because of the notification issued by the Central Government under Sec. 3 of the Act of 1957 even after enforcement of the Act of 2001 by the State Legislature. The trial Court is directed to pass appropriate order on the aforesaid issue before proceeding further with the matter, within a period of three months from the date next fixed before it. Stay application also stands disposed off.