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2022 DIGILAW 1626 (RAJ)

N. K. Singh v. Brijmohan Singh

2022-05-17

ASHOK KUMAR GAUR

body2022
ORDER 1. This writ petition has been filed by the petitioner, challenging the order dated 16.03.2019 whereby the Appellate Rent Tribunal, Kota has set aside the order dated 12.02.2016 passed by the Rent Tribunal, Kota and further the matter has been remanded back to the Rent Tribunal for deciding the issue afresh on the application filed by the petitioner under Order 7 Rule 11 CPC. 2. Learned counsel for the petitioner submitted that the respondent had filed an application of eviction against the present petitioner claiming himself to be owner of the suit premise. 3. Learned counsel for the petitioner submitted that the petitioner specifically pleaded before the court below that there was no relationship of landlord and tenant between the petitioner and the non-petitioner and as such an application under Order 7 Rule 11 CPC read with Section 21 of Rajasthan Rent Control Act, 2001 (hereinafter referred to as ’the Act of 2001’) was filed. 4. Learned counsel for the petitioner submitted that the court below after considering the entire facts and the definition of landlord and tenant as given in the Act of 2001, came to the conclusion that the non-petitioner was not the landlord of the suit premise and he had no right to file the eviction application. 5. Learned counsel for the petitioner submitted that the Rent Tribunal also recorded a finding that no rent was ever received by the non-petitioner and as such in absence of any proof of title of the property in question, the suit was not maintainable and accordingly the application filed by the petitioner was rightly allowed by the Rent Eviction Tribunal. 6. Learned counsel for the petitioner submitted that by impugned order dated 16.03.2019, the Rent Appellate Tribunal has wrongly set-aside a well reasoned order passed on 12.02.2016. 7. Learned counsel for the petitioner submitted that there was no occasion for remanding the matter back to the Rent Eviction Tribunal to decide the application afresh. 8. Learned counsel for the petitioner submitted that the reasons which have been assigned to set-aside the order, is also not legally sustainable. 9. Learned counsel for the petitioner places reliance on the judgments reported in 2017 (4) RLW, 3457 (Raj.)-Sharda Alika (Smt.) Vs. Harji Lal Alika; 2010 (2) SCC 619 -Joseph Kantharaj & Anr. Vs. Attharunnisa Begum S.; (1973) 2 SCC 197 -Arjunlal Bhatt Mall Gothani & Others Vs. Girish Chandra Dutta & Anr. 9. Learned counsel for the petitioner places reliance on the judgments reported in 2017 (4) RLW, 3457 (Raj.)-Sharda Alika (Smt.) Vs. Harji Lal Alika; 2010 (2) SCC 619 -Joseph Kantharaj & Anr. Vs. Attharunnisa Begum S.; (1973) 2 SCC 197 -Arjunlal Bhatt Mall Gothani & Others Vs. Girish Chandra Dutta & Anr. and (2020) 7 SCC 366 -Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives & Ors. 10. Learned counsel for the petitioner on the strength of the said judgments submitted that if an application under Order 7 Rule 11 is filed and if bare reading of plaint itself makes out a case that the suit filed by the plaintiff is not maintainable, even there is no requirement of considering the pleas which can be taken by the defendant in the written statement. 11. Learned counsel for the petitioner submitted that in the present case, the very averment made in the application by the non-petitioner even did not establish the relationship of landlord and tenant and as such no further trial of the case was required and the application filed by the petitioner, ought to have been dismissed on the maintainability itself. 12. Learned counsel for the petitioner on the strength of the judgment passed by the Apex Court Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (supra) submitted that the plaint when did not disclose the real cause of action and the suit if found to be absolutely vexatious and an abuses of process of the Court, the Court is required to exercise its drastic power under Order 7 Rule 11 to reject the plaint. 13. Learned counsel for the petitioner further submitted that in the present facts of the case, even the petitioner has filed suit for specific performance against the non-petitioner and the same is pending for adjudication and that very basis of the suit is agreement to sell by which the property in question has already been transferred and possession has been given to the petitioner and as such the Eviction Tribunal could not have been proceeded further in the matter. I have heard the submissions made by learned counsel for the petitioner. 14. I have heard the submissions made by learned counsel for the petitioner. 14. This Court finds that the order dated 16.03.2019 has only set-aside the finding which was recorded by the Eviction Tribunal and as such the matter has been remanded back and the court below will again by way of affording opportunity to both the parties to claim their respective rights with respect to relationship of landlord and tenant. If the Tribunal will again undertake the entire exercise as per direction given by the Appellate Court then no prejudice will be caused to any of the party. 15. The submissions of learned counsel for the petitioner that the relationship of landlord and tenant even not prima facie established and such an eviction application is vexatious in any manner and this Court is required to interfere with the matter and there is no averment in the application filed for eviction establishing the non-petitioner himself to be landlord, this Court finds that the relationship of landlord and tenant is required to be considered by the court below as per provisions contained in the Act, the title of the property is not to be decided by the Court in such a situation. 16. This Court finds that in D.B. Civil Special Appeal No.235/2009-Nanak Ram Lalwani Vs. Gajendra, reported in 2009 SCC Online Raj 882, the Division Bench has observed that for determination of the question of landlord and tenant relationship in a suit for eviction under the provisions of the Act of 2001, the question of title or ownership of the premises is not required to be gone into but the questions with regard to the landlord and tenant relationship, their rights and liabilities arising in the matter have to be determined and if the applicant is not able to establish the landlord and tenant relationship in terms of the provisions of the Act of 2001, the application for eviction can result into dismissal of the same. 17. This Court finds that the order passed by the Appellate Rent Tribunal dated 16.03.2019 does not require any interference, the writ petition being devoid of merit is accordingly dismissed. 18. 17. This Court finds that the order passed by the Appellate Rent Tribunal dated 16.03.2019 does not require any interference, the writ petition being devoid of merit is accordingly dismissed. 18. Learned counsel for the petitioner at this juncture submitted that at least the petitioner has a right to move an application before the Rent Tribunal to stay the proceedings as the suit for specific performance has already been filed and as per the judgment passed by the Apex Court in the case of Joseph Kantharaj & Anr. Vs. Attharunnisa Begum S (supra), the petitioner has a right to ask for staying the entire proceedings, this Court finds that if the petitioner has any remedy under the law, he is always free to avail the same and this Court need not pass any order to the same effect. Accordingly, the present writ petition stands dismissed.