Rishabh Marketing Pvt. Ltd. through Authorized Officer Mr. Satish Mathur Son of Late Shri Mahendra Kumar Mathur v. Aruna Soni Wife of Late Shri Ramesh Changer Soni
2017-01-19
MOHAMMAD RAFIQ
body2017
DigiLaw.ai
ORDER : 1. This writ petition has been filed by M/s. Rishabh Marketing Pvt. Ltd. through its authorised officer Mr. Satish Mathur challenging three orders, namely-order dated 22.09.2016 (Annexure-5), 21.10.2016 (Annexure-7) and order dated 04.11.2016 (Annexure-9) passed by the Rent Tribunal Tribunal, Jaipur Metropolitan, Jaipur(for short 'the Rent Tribunal') in the eviction petition filed by the respondents-landlords. 2. First order, which is assailed, is dated 22.09.2016, by which application filed by the petitioner under Order 7 Rule 11 CPC has been rejected. Mr. Sanjay Pandey, learned counsel for the petitioner, assailing the said order, argued that though the petitioner, who actually was the tenant, was not impleaded as party to the eviction proceedings. The petitioner approached this Court by filing Writ Petition No. 14589/2015. This Court with the consent of the parties passed the order dated 11.04.2016 deciding the aforesaid writ petition with certain directions and also directed impleadment of the petitioner as the non-applicant before the Rent Tribunal in the eviction petition. Reference in specific made to para 5 of the aforesaid judgment to argue that therein it has been mentioned that since the eviction petition is pending since 2012 and the ground agitated inter alia is bond fide and reasonable necessity of the respondent-applicant-landlord. It was therefore directed that the eviction petition be disposed off within a period of six moths of the filing of the reply to the eviction petition. Learned counsel submitted that taking advantage of the observation made by this Court in para 3 of the aforesaid judgment, the respondents-landlords got the eviction petition amended. Therein, the respondents-landlords gave up the ground of reasonable and bonafide necessity and has now confined the eviction petition to the ground of notice for eviction under Section 106 of the Transfer of the Property Act. Learned counsel submitted that the Rent Tribunal could not have allowed the eviction petition to proceed on any other ground, except on the ground of bonafide and reasonable necessity, as doing so would be contrary to the direction issued by this Court vide aforesaid judgment dated 11.04.2016. 3.
Learned counsel submitted that the Rent Tribunal could not have allowed the eviction petition to proceed on any other ground, except on the ground of bonafide and reasonable necessity, as doing so would be contrary to the direction issued by this Court vide aforesaid judgment dated 11.04.2016. 3. In assailing order dated 21.10.2016 passed by the Rent Tribunal, whereby application filed by the petitioner under Order 11 Rule 12 CPC was rejected, learned counsel submitted that the petitioner in that application contended that the respondents in para 2 of the their rejoinder stated that no meeting took place after 2006 and the documents and correspondence between the parties may be ordered to be produced on record. It was further stated in the application that the respondents in para 6 of the rejoinder stated that they had started Women Hostel and Paying Guest for women and they may be directed to produce its registration certificate and police report as also copy of the returns and receipts of the tax etc. deposited. It was further prayed that the respondents claimed to be legal heir of Ramesh Chand Soni, therefore, they may be directed to produce copy of his death certificate. They have also claimed in para 4 of the rejoinder that they incurred expenses for maintenance of the premise and they should be required to prove the same by producing the receipt of the expenses thereof. The Rent Tribunal vide order dated 21.10.2016 dismissed the said application. Learned counsel submitted that the Rent Tribunal was wholly unjustified in rejecting the said application on the premise that the documents sought to be summoned were not relevant or necessary for effective decision of the eviction petition and further that the application, which is not support by affidavit has been filed only with a view to delay the proceedings. He has argued that right of the petitioner to agitate the aforesaid points has wrongly been scuttled by the Rent Tribunal only because this Court in the aforesaid judgment directed to decide the eviction petition up to 28.11.2016 and the Rent Tribunal ought to have decided the application of the petitioner on merits rather rushing through the proceedings. 4. Third order, which is challenged by the petitioner is dated 04.11.2016 passed by the Rent Tribunal whereby application of the petitioner under Section 15 of the Act has been dismissed.
4. Third order, which is challenged by the petitioner is dated 04.11.2016 passed by the Rent Tribunal whereby application of the petitioner under Section 15 of the Act has been dismissed. Therein, objection of the petitioner was that petitioner no. 1 in the eviction petition is Mrs. Aurna Soni, but neither her affidavit in terms of Section 15 of the Act, nor her consent has been produced on record and therefore, eviction petition was not maintainable. Same argument is reiterated before this Court. Learned counsel for the petitioner, therefore, prayed that present writ petition may be allowed and applications filed by the petitioner may be allowed and impugned orders passed by the Rent Tribunal may be quashed and set aside and eviction petition be dismissed. 5. Per contra, Mr. Yellop Singh, learned counsel for the respondents opposed the writ petition and submitted that original tenant of the respondents was Kailash Bagari. The premise was let out to him for residential purpose. The tenancy was settled orally and as per the direction of this Court in the aforesaid judgment, the petitioner was impleaded as party on the basis that he presently happens to be in possession of the disputed premise, but in that same order, this Court permitted the respondents to get the eviction petition amended and therefore, the respondent-landlords in exercise of their legitimate rights, got the eviction petition amended. Since premise was let out for residential purpose for a sum of Rs.7,000/- per month, which is presently having rent of Rs. 15,000/- per month, therefore, in view of the provisions contained in Section 3(iii) of the Act, provisions of Chapter II and III of the Act would not be applicable to the present proceedings, which also include the protections provided to the tenant under Section 9(i) of the Act including that the premise could be got vacated by the landlord on the ground of reasonable bonafide necessity. Learned counsel for the respondents argued that since the petitioner is a public limited company, therefore also, by virtue of Section 3(x) of the Act, provisions of Chapter II and III of the Act would not be applicable and protections available to the tenant under Section 9 of the Act would also not be available to the petitioner. 6.
Learned counsel for the respondents argued that since the petitioner is a public limited company, therefore also, by virtue of Section 3(x) of the Act, provisions of Chapter II and III of the Act would not be applicable and protections available to the tenant under Section 9 of the Act would also not be available to the petitioner. 6. Learned counsel for the respondents argued that the documents, which were sought to be summoned by invocation of Order 11 Rule 12 CPC were not at all relevant for deciding the controversy pending before the Rent Tribunal. Only question which the Rent Tribunal was required to decide was whether valid notice under Section 106 of the Transfer of Property Act has been served on the petitioner or not and whether the Rent Tribunal in view of powers conferred upon it under Section 18 of the Act may not pass an order of eviction. Learned counsel argued that Section 21 of the Act has made only few provisions of CPC applicable to the proceedings of the Rent Tribunal as the remedy before the Rent Tribunal is supposed to be summary and speedy. As regards the argument that affidavit and consent of Mrs. Aruna Soni, petitioner no.1 in the eviction petition before the Rent Tribunal has not been filed and petition should be dismissed, learned counsel submitted that Section 15 of the Act envisages that submission of all affidavits and documents along with the eviction petition by the landlord and along with the reply by the tenant. This is so because proceedings before the Rent Tribunal are intended to be summary and speedy in nature. However, for filing the eviction petition in view of Section 22 of the Act, supporting affidavit is not required to be filed, which inter alia provides that every petition or appeal, so far as possible, shall be in the model form specified in Schedule A and Schedule B, and every recovery certificate shall be in the model form specified in Schedule C of the Act. Schedule A contains the model form of eviction petition which envisages filing of verification, not affidavit. There are three petitioners in the eviction petition but verification by one of them would be sufficient compliance of Section 22 of the Act.
Schedule A contains the model form of eviction petition which envisages filing of verification, not affidavit. There are three petitioners in the eviction petition but verification by one of them would be sufficient compliance of Section 22 of the Act. Even in this behalf, learned Rent Tribunal has noted that eviction petition was signed by all the three petitioners, therefore, this cannot be a basis for dismissal of the eviction petition. 7. Having heard learned counsel for the parties and perused the record, this Court does not find any substance in the argument that the eviction petition should be dismissed because affidavit supporting averments of the petitioners has not been filed. What is envisaged in Section 15 of the Act is that affidavits and documents in support of their respective case by landlord and the tenant may be filed simultaneously with the eviction petition as well as reply to the eviction petition, as the case may be. Affidavits so filed are intended to be used as evidence for the respective parties and it is for this purpose that the learned Rent Tribunal may permit the opposite party to cross-examine the deponent thereof. In view of Section 22 of the Act, if the eviction petition has been filed by verification by one of the petitioners, with other two petitioners having signed the same, that would be sufficient compliance of Section 15 as well as 22 of the Act. 8. No doubt, Section 21 of the Act has made applicability of the Code of Civil Procedure limited to the proceedings before the Rent Tribunal providing that the Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but provided that it shall be guided by the principal of natural justice and subject to other provisions of the Act or the Rules made thereunder. Even though, Clause (b) of Section 21(3) of the Act, i.e. requiring the discovery and production of documents, has indeed been made applicable, but the nature of documents, which have been demanded by the petitioner and discussed by the Rent Tribunal in order dated 21.10.2016 cannot be said to be such, which would be relevant and necessary for effective decision of the eviction petition.
So far as the question whether the petitioner can be evicted by serving notice under Section 106 of the Transfer of Property Act by the landlord and whether the petitioner can be evicted by such summary procedure and whether protection available to a tenant under Section 9 of the Act would not be available in a present case, are concerned, for this purpose, submissions of learned counsel for the petitioner needs consideration because his contention is that the disputed premise was actually used for residential purpose and not for commercial purpose and therefore, provisions of Section 3(iii) of the Act would be attracted. The question of fact whether the disputed premise was let out for residential purpose or commercial purpose shall be decided by the Rent Tribunal on the basis of evidence of the parties. On the same analogy, the submission made by learned counsel for the respondents that since the petitioner is a public limited company, therefore, by virtue of Section 3(x) of the Act, provisions of Chapter II and III of the Act would not be applicable and protection available to the tenant under Section 9 of the Act would also not be available to the petitioner for this reason as well, would also be decided by the Rent Tribunal on the basis of evidence of the fact that whether or not the petitioner-company is having paid up share capital of Rs. 1 crore or above. This question of fact has to be decided by the Rent Tribunal on the basis of evidence, while deciding eviction petition. 9. It is therefore directed that the Rent Tribunal shall have due regard to all the aforesaid aspects, while formulating the points for determination and record its findings depending on the view which it would like to take on the basis of evidence of the parties. It is further directed that any new application, if filed by either of the parties, shall be decided by the Rent Tribunal simultaneously along with decision of the main eviction petition, so as to conclude the proceedings in a time bound manner, keeping in view the spirit of Section 15 of the Act as well as direction of this Court issued in the aforesaid order dated 11.04.2016 and extended vide order dated 18.01.2017. 10. Writ petition is allowed in part with the aforesaid directions. Stay application stands disposed off.