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2019 DIGILAW 2879 (RAJ)

Swami Gyanprakash v. Appellate Rent Tribunal

2019-11-20

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - The present writ petition is directed against the order dated 15.12.2018, passed by the Appellate Rent Tribunal, in an appeal filed by the respondent-landlord. 2. The facts necessary for the purpose of decision of the writ petition are that the respondent-landlord filed a petition under Section 9 of the Rent Control Act, 2001 (for short, 'the Act of 2001') and vide order dated 23.07.2019, the same was later ordered to be converted to a petition for recovery of possession under Section 106 of the Transfer of Property Act, 1882 (for short, 'the Act of 1882'). 3. The Rent Tribunal partly allowed the suit/petition, so filed by the respondent-landlord vide its order dated 09.09.2016, inter alia finding the landlord entitled for arrears of rent to the tune of Rs.45,200/-. The Tribunal, however, refused to issue order of eviction observing that notice Ex.1 was not in accordance with law, as the same did not contain the date when the tenancy was terminated. 4. Against the above referred judgment and decree dated 09.09.2016, the respondent-landlord preferred an appeal under Section 19 of the Act of 2001. The Appellate Rent Tribunal, while deciding the appeal so filed by the respondent, remanded the matter to the Tribunal, inter alia holding that the Rent Tribunal has decided the case under Section 9 of the Act of 2001, whereas the case filed by the landlord was converted to a suit under Section 106 of the Act of 1882. 5. Mr. Pankaj Sharma, learned counsel for the petitioner, invited Court's attention towards the order dated 09.09.2016 and submitted that the entire judgment of the Rent Tribuvnal has been passed while considering the case to be a case of termination of tenancy under Section 106 of the Act of 1882 and it was only due to inadvertence, that caption of the judgment contained the expression . He further argued that merely because a wrong caption has been typed/shown and a free copy under Section 17 of the Act of 2001 has been issued to the petitioner, it cannot be said that the case has been decided, as a case under Section 9 of the Act of 2001. 6. He further argued that merely because a wrong caption has been typed/shown and a free copy under Section 17 of the Act of 2001 has been issued to the petitioner, it cannot be said that the case has been decided, as a case under Section 9 of the Act of 2001. 6. It was also argued that the Appellate Rent Tribunal did not go into the merit of the case at all, and has remanded the matter back to the Rent Tribunal to decide the same under Section 106 of the Act of 1882. The operative portion of the order of the Appellate Rent Tribunal is reproduced hereunder:- 7. Ms. Sangeeta Mittal, learned counsel appearing for the respondent-landlord, made submissions on merit of the case that the notice in question was a valid notice, she however, could not satisfy the Court as to how the order passed by the Appellate Rent Tribunal is sustainable in the eye of law. 8. Heard learned counsel for the parties. 9. A perusal of the order dated 09.09.2016, passed by the Rent Tribunal, shows that the case has been determined and decided as per the provisions of the Act of 1882. A perusal of the issues framed by the Rent Tribunal and its adjudication, particularly with respect to issues Nos.1 and 2, leaves no room for ambiguity that the case has been decided considering the provisions of the Act of 1882 and not as per Section 9 of the Act of 2001. 10. The Appellate Rent Tribunal has, therefore, clearly fallen into an error of law while holding the same to have been decided under the provisions of the Act of 2001. The finding given by the Rent Appellate Tribunal that the Tribunal has decided the case summarily, without recording issuewise finding/conclusion is per se perverse and contrary to facts on record. The Tribunal has dealt with the issues Nos.2 and 3 with reasonable discussion. 11. Simply because a wrong subject matter/caption has been inscribed in the order of the Rent Tribunal, showing the judgment to be under Section 9 of the Act of 2001 and the fact that a free copy has been provided to the parties, it cannot be said that the case has been decided under the provisions of the Act of 2001. Simply because a wrong subject matter/caption has been inscribed in the order of the Rent Tribunal, showing the judgment to be under Section 9 of the Act of 2001 and the fact that a free copy has been provided to the parties, it cannot be said that the case has been decided under the provisions of the Act of 2001. The Appellate Rent Tribunal was required to see the essence of the judgment, coupled with the pleadings of the parties and issues framed, but it appears that it has not even read the impugned judgment. 12. A simple look at the order dated 09.09.2016 leaves no room for ambiguity that the Rent Tribunal had decided the case considering the provisions of Section 106 of the Act of 1882. 13. The impugned order dated 15.12.2018, passed by the Appellate Rent Tribunal, suffers from an error apparent on the face of the record, for which it is set aside. The writ petition is allowed. 14. The matter is restored back to the dockets of Appellate Rent Tribunal to be decided afresh, in accordance with law. 15. I.A. No.1/2019 and the stay application stand disposed of accordingly.