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2017 DIGILAW 99 (RAJ)

Harsha Jethwani W/o Shri Deepak Jethwani v. Renu Vedi W/o Shri Gaurav Vedi

2017-01-09

SANGEET LODHA

body2017
JUDGMENT : Sangeet Lodha, J. This petition is directed against judgment dated 28.3.16 passed by the Appellate Rent Tribunal, Jodhpur Metropolitan City, whereby the appeal preferred by the appellant against the judgment dated 30.9.14 of Rent Tribunal, Jodhpur Metropolitan City, has been allowed and the matter has been remanded to the Rent Tribunal for decision afresh with a direction to summon the documents relating to the EMO numbers mentioned in the postal receipts placed on record by the respondent herein and after giving the parties an opportunity to lead the evidence in respect thereof. 2. The relevant facts are that the petitioners herein preferred a petition for revision of the rent and eviction of the respondent from the commercial premises. The eviction was sought on the ground of default in payment of rent in terms of provisions of Section 9 (a) of the Rajasthan Rent control Act, 2001 ('the Act'). The petitioners averred that the respondent did not tender the amount of rent for four months quantified at Rs.44,000/- even after disclosure of the bank account number and the name of the bank within the municipal area by way of notice sent to him by registered post, acknowledgment due. 3. The petition was contested by the respondent by way of reply to the petition inter alia taking the specific stand that the rent was remitted to the petitioners herein by way of properly addressed money orders dated 29.5.10, but the petitioners refused to accept the same. The respondent also claimed that the amount of rent if any due, could have been adjusted out of the security amount given by her to the petitioners for the purpose of construction. 4. On the basis of the pleadings of the parties, the Rent Tribunal framed the issues and the parties led their evidence. 5. In support of the stand taken regarding the tender of rent due through money order, the petitioners produced the documents Ex.D7 to D30, showing that the money orders were sent, which were returned with the endorsement "Refused". 6. After due consideration of the evidence, the Rent Tribunal arrived at the finding that the respondent has neither paid nor tendered the amount of rent due from him for four months despite notice being sent by the petitioners herein by way of registered post, acknowledgement due, disclosing the bank account number. 6. After due consideration of the evidence, the Rent Tribunal arrived at the finding that the respondent has neither paid nor tendered the amount of rent due from him for four months despite notice being sent by the petitioners herein by way of registered post, acknowledgement due, disclosing the bank account number. The evidence produced on behalf of the petitioners regarding remittance of the rent by way of properly addressed money order was not found acceptable by the Rent Tribunal observing that in the said receipts the name of the petitioners is not mentioned and the same do not specify the months for which the rent was tendered. Accordingly, the petition seeking eviction was allowed vide judgment dated 30.9.14. 7. Aggrieved thereby, the respondent preferred an appeal before the Appellate Rent Tribunal, Jodhpur Metropolitan City. During the pendency of the petition, the appellant preferred an application under Section 19 & 21 of the Act, stating that the rent for the period of four months amounting to Rs.42,000/- was sent by the respondent herein to the petitioners by way of 12 money orders on 29.5.10. It was averred that the postal receipts whereby the money orders were sent, were handed over to the counsel appearing for the respondent herein before the Rent Tribunal, however, the same were neither produced before the Rent Tribunal nor the same were returned to the respondent. It was further averred that the photo stat copies of the receipts were available in the file handed over to the respondent by the counsel appearing on his behalf before the Rent Tribunal. The photo stat copies of the receipts were produced by the respondent along with the application filed as aforesaid. 8. After due consideration, the Appellate Rent Tribunal found that the photo stat copies of the receipts sought to be produced on record by the respondent herein issued by the Postal Department, the name of the landlord, the petitioner herein, and e-MO number are specifically mentioned. The Appellate Tribunal found that the e-MO number mentioned on the postal receipts sought to be produced by the respondent herein and the e-MO receipts already produced on record before the Rent Tribunal are same and thus, the information regarding the date of sending of e-MO and the names of the sender and the addressee are available on record. The Appellate Tribunal found that the e-MO number mentioned on the postal receipts sought to be produced by the respondent herein and the e-MO receipts already produced on record before the Rent Tribunal are same and thus, the information regarding the date of sending of e-MO and the names of the sender and the addressee are available on record. The Appellate Rent Tribunal observed that the documents sought to be produced is vital evidence for substantiating the defence of respondent herein and the original record in this regard is available with the Postal Department. The Appellate Rent Tribunal observed that the principles of natural justice demand that for just decision of the matter the original record regarding the e-MO numbers mentioned in the receipts produced is summoned from the Postal Department and the parties are permitted to lead the evidence in this regard. Accordingly, the application preferred as also the appeal have been allowed by the Rent Tribunal by the order impugned and the matter has been remanded to the Rent Tribunal for decision afresh with the directions as indicated above. Hence, this petition. 9. Learned counsel appearing for the petitioners contended that the Appellate Rent Tribunal has seriously erred in remanding the matter to the Rent Tribunal for decision afresh, ignoring a categorical finding arrived at by the Rent Tribunal supported by reasons. Learned counsel submitted that the Appellate Rent Tribunal has acted without jurisdiction in issuing directions to summon the record from the Postal Department so as to collect the evidence in favour of the respondent. Learned counsel submitted that the respondent had ample opportunity to make an appropriate application before the Rent Tribunal for summoning of the documents, which are now sought to be summoned at the stage of appeal. Learned counsel submitted that it was open for the appellant to apply for the copies of the documents from the Postal Department and produce the same before the Rent Tribunal. Learned counsel submitted that the remand order is permissible to be passed only in exceptional cases and the it was open for the appellate court to consider and examine the relevance of the additional evidence sought to be produced by the respondent. Learned counsel submitted that the remand order is permissible to be passed only in exceptional cases and the it was open for the appellate court to consider and examine the relevance of the additional evidence sought to be produced by the respondent. Learned counsel submitted that even if it is presumed that the money orders sent by the respondent were refused by the petitioner then too, since the respondent has failed to deposit the rent due within a period of thirty days from the date of service of notice sent by the petitioners by registered post, acknowledgement due, the default in payment of rent stands established and therefore, the Appellate Rent Tribunal could not have interfered with the order passed by the Rent Tribunal directing eviction of the respondent from the suit premises. Learned counsel submitted that the provisions of Civil Procedure Code, 1908, are not applicable to the proceedings before the Rent Tribunal and Appellate Rent Tribunal and therefore, the order impugned passed by the Appellate Rent Tribunal is ex facie without jurisdiction. In support of his contention, learned counsel has relied upon a decision of Jaipur Bench of this Court in the matter of 'Premlata Sharma @ Sita v. Smt. Suman Soni' 2014 (2) WLN 280 (Raj.). 10. On the other hand, counsel appearing for the respondent submitted that the reasons for not producing the documents sought to be produced at the appellate stage were explained by the respondent before the Appellate Rent Tribunal. Drawing the attention of this Court to the photostat copies of the documents Ex.7 to Ex.30 produced on behalf of the respondent before the Rent Tribunal as also the photo stat copies of the documents produced along with an application preferred before the Appellate Rent Tribunal under Sections 19 & 21 of the Act, learned counsel submitted that a perusal of the documents makes it abundantly clear that rent due for four months as claimed by the petitioners by way of notice sent through registered post had already been tendered by the respondent by way of properly addressed money orders, which were refused by the petitioners. Learned counsel submitted that as per the explanation attached to clause (a) of Section 9, for the purposes of said clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same and thus, the factum of rent being sent to the petitioners by the respondent by way of money order as aforesaid, stands proved on the basis of the said documents sought to be produced at the appellate stage, the original record in respect whereof is directed to be summoned by the Appellate Rent Tribunal from the Postal Department and thus, the petition preferred by the petitioners herein seeking eviction of the respondent from the premises in question on the ground of default in payment of rent in terms of Section 9(a) of the Act, is bound to fail. Learned counsel submitted that the documents sought to be produced go to the root of the matter and for just adjudication of the dispute, it is absolutely necessary that the same are permitted to be taken on record even at the appellate stage. Learned counsel submitted that under Section 21 of the Act, the Rent Tribunal and Appellate Rent Tribunal have ample powers to regulate their own procedure for the purpose of discharging their functions under the Act. 11. I have considered the rival submissions and perused the material on record. 12. Indisputably, it was a specific stand taken by the respondent before the Rent Tribunal that the amount of rent for four months alleged to be due from her was remitted through money orders to the landlord by properly addressing the same before the notice in terms of first proviso to clause (a) of Section 9 of the Act being served by the petitioners herein. A perusal of the documents already produced on record by the respondent before the Rent Tribunal as Ex.D7 to Ex.D30 show that an amount of Rs.42,000/- was sent by the respondent by way of 12 money orders, which were refused by the addressee, but on the basis of the documents produced, it was not proved that the money orders sent were addressed to the petitioners herein and therefore, the Rent Tribunal arrived at finding that the factum of amount of rent being tendered by the respondent to the landlord by way of money orders is not proved. 13. 13. It is to be noticed that it was the specific stand of the respondent before the Appellate Rent Tribunal in the application filed under Section 19 & 21 of the Act, for taking the documents on record and summoning the original record from the Postal Department that the receipts sought to be produced, were handed over by her to the counsel appearing on her behalf but the same were not produced before the Rent Tribunal and the photo stat copies thereof were found available in the file handed over by the counsel and accordingly, the same were sought to be produced at the appellate stage. The stand taken by the respondent before the Appellate Rent Tribunal was not controverted by the petitioners by filing a reply thereto. Moreover, a perusal of the receipts sought to be produced by the petitioners before the Appellate Rent Tribunal which are permitted to be taken on record reveal that the money orders sent were addressed to the petitioners herein. The e-MO numbers mentioned in the photo stat copies of the receipts produced at the appellate stage tally with the e-Mo numbers mentioned in the Ex.D7 to Ex.D30 already produced by the respondent before the Rent Tribunal and thus, if the receipts produced by the respondent at the appellate stage are found to be genuine on the basis of the record available with the Postal Department, it will be indicative of the fact that the amounts shown in the receipts produced was sent by respondent to the petitioners herein. 14. It is pertinent to note that as per Section 9(a), the Rent Tribunal may order eviction of tenant, if the tenant has neither paid nor tendered the amount of rent due from him for four months. But then, as per the explanation attached to clause (a) of Section 9 for the purposes of the said clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same. But then, as per the explanation attached to clause (a) of Section 9 for the purposes of the said clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same. In this view of the matter, if the stand of the respondent that he had tendered the rent due to the petitioners by way of properly addressed money orders before the service of the notice by the landlord in terms of provisos to clause (a) of Section 9 is proved, it will be treated to be valid tender of the rent due and in that case, the ground of eviction in terms of clause (a) of Section 9 shall not be available to the petitioners. 15. Coming to the failure of the respondent in making the payment of rent due despite notice being served by the petitioners by registered post acknowledgement due, disclosing the bank account number and the name of the bank in the municipal area and demanding arrears of rent, within the stipulated period, suffice is to say that if it is proved on the basis of the evidence on record that the respondent had already tendered the rent due by way of money orders, the notice served by the petitioners to the respondent by way of registered post in terms of first and second proviso to clause (a) of Section 9 of the Act, shall be of no consequences inasmuch as the provisos are open to be invoked only when there is a failure on the part of the tenant in paying or tendering the amount of rent due from him for four months. 16. Coming to the contention of the learned counsel for the petitioners regarding the power of the Appellate Rent Tribunal in directing remand of the matter with the directions to the Tribunal as indicated above, it is true that as per provisions of sub-section (3) of Section 21, the Rent Tribunal or the Appellate Rent Tribunal is not bound by the procedure laid down under CPC but they are bound to adopt the procedure in conformity with principles of natural justice and have power to regulate their own procedure. In 'Surendra Mehta v. Babu Lal & Anr.', 2008(2) WLC (Raj.) 744, while considering the scope of the power of the Rent Tribunal and the Appellate Rent Tribunal in terms of sub-section (3) of Section 21 of the Act, this Court observed : "11. ........... A bare perusal of sub-section(3) of Section 21 of the Act 2001 goes to show that the Rent Tribunal or the Appellate Tribunal may not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but, they are bound to adopt the procedure in conformity with the principle of natural justice. It is to be noticed that such provision requiring observance of principle of natural justice by the judicial bodies and quasi judicial authorities are generally not found incorporated in statutes specifically. In my considered opinion, while providing that the Rent Tribunal and Appellate Tribunal shall not be bound by procedure laid down by Civil Procedure Code, 1908, the legislature has consciously and purposely incorporated the said provision that proceeding before the Tribunal shall be guided by the principle of natural justice obviously, for the reason that observance thereof is considered to be assurance of justice and fairness. It is fundamental principle of natural justice that defence of a party to the proceedings before all courts, judicial bodies and quasi judicial authorities must always be fairly heard. .............." (emphasis added) 17. In the considered opinion of this Court, the exclusion of applicability of the provisions of CPC in the proceedings under the Act in no manner debars the Rent Tribunal and the Appellate Rent Tribunal to apply the principles underlying the various provisions of CPC, if it is found necessary by the Rent Tribunal and the Appellate Rent Tribunal, in the interest of justice and for the purposes of discharging its functions under the Act effectively and in meaningful manner. 18. For the aforementioned reasons, this Court is of the opinion that the discretion exercised by the Appellate Rent Tribunal in remanding the matter to the Rent Tribunal for decision afresh with the directions in the terms indicated above to meet the ends of justice do not warrant any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 19. In the result, the petition fails, it is hereby dismissed. No order as to costs.