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Rajasthan High Court · body

2022 DIGILAW 1954 (RAJ)

Bhasker Banerjee v. Mukesh Rathi

2022-07-05

ASHOK KUMAR GAUR

body2022
ORDER 1. The present writ petition has been filed by the petitioner challenging the order dated 13th February, 2019, whereby the application, filed by the petitioner under Section 19A of the Rajasthan Rent Control Act, 2001 (for short ’the Act of 2001’) has been dismissed. 2. This Court issued notices in the writ petition on 5th April, 2019 by making the notices returnable within two weeks. 3. This Court, on 9th February, 2021, allowed the Application bearing No.1/2020, filed by the petitioner for alternative mode of service of notice on the respondent through his Advocate appearing in the Trial Court and as such, an order was passed to serve the respondent through the counsel, appearing for him and the notice was also, additionally, sent to the concerned Trial Court for effecting service. 4. This Court finds that the notices were served again on 2nd December, 2021 and this Court directed to summon the report from the concerned Trial Court for compliance of the order dated 9th February, 2021. The report of the Trial Court also revealed that notices on the respondent was not served and as such, the respondent was found to be avoiding service of notice on him. 5. This Court, again on 11th January, 2022, directed learned counsel for the petitioner to furnish a fresh set of notices to serve on the respondent and kept the matter on 3rd February, 2022. 6. This Court, on 3rd February, 2022, recorded that copy of the writ petition was served upon Advocate Mr.Satish Kumar Sharma, appearing for the respondent in the Trial Court but no attendance was marked by him and in compliance of the order dated 11th January, 2022, again an attempt was made to serve notice upon Advocate Mr.Satish Kumar Sharma but the same was refused by him. 7. This Court directed the concerned SHO to carry out service upon the respondent and further, learned counsel for the petitioner was granted liberty to file fresh notice to be served additionally through registered post. 8. 7. This Court directed the concerned SHO to carry out service upon the respondent and further, learned counsel for the petitioner was granted liberty to file fresh notice to be served additionally through registered post. 8. This Court, again on 20th May, 2022, noted the report of SHO that rented premise was found to be locked and as such, this Court, prima facie, found that service was being avoided by the respondent and as a last measure, this Court directed learned counsel for the petitioner to serve copy of notice upon Advocate Mr.Satish Kumar Sharma, appearing for the respondent in the Trial Court, as the date was already fixed in the Trial Court on 27th May, 2022. 9. This Court also permitted learned counsel for the petitioner to make a mention on the next date as whether notices have been accepted by counsel for the respondent appearing in the Trial Court or not? 10. Learned Senior Counsel Mr.Anant Kasliwal, assisted by learned counsel Mr.Vaibhav Kasliwal, appearing for the petitioner, submitted that as per the direction given by this Court on 20th May, 2022, copy of the writ petition along with notices were served on Counsel Ms.Sunita Shrimal, who appeared on behalf of Mr.Satish Kumar Sharma, Advocate for the respondent in the Trial Court. 11. Learned counsel for the petitioner has produced a copy of receipt of notice by said Ms.Sunita Shrimal on 27th May, 2022. 12. Learned counsel submitted that in spite of all the efforts, being made by the petitioner and his counsel, the respondent has been avoiding service of notice and as such, service should be treated duly effected on the respondent. 13. This Court, considering the aforesaid series of events, treat service of notice on the respondent to be complete. Heard learned counsel for the petitioner. 14. Learned counsel for the petitioner submitted that an application under Section 9 of the Act of 2001 has been filed by the petitioner for eviction against the respondent. 15. 13. This Court, considering the aforesaid series of events, treat service of notice on the respondent to be complete. Heard learned counsel for the petitioner. 14. Learned counsel for the petitioner submitted that an application under Section 9 of the Act of 2001 has been filed by the petitioner for eviction against the respondent. 15. Learned counsel submitted that during pendency of the said application, the petitioner moved an application under Section 19A of the Act of 2001 and in the application, the petitioner pleaded that the respondent had not paid any rent since January, 2017 and as such, the Court below should exercise its power under Section 19-A of the Act of 2001 and a direction was required to be given to pay arrears of rent and further direction to pay monthly rent to the petitioner during pendency of the application. 16. Learned counsel submitted that the Court below has dismissed the application, filed by the petitioner, only on account of a dispute, with regard to the ownership/relationship of tenant and landlord, between the parties. 17. Learned counsel submitted that findings of the Court below that the application under Section 19-A of the Act of 2001 can only be decided while deciding the issue of relationship of landlord and tenant, is not sustainable in the eye of law and it runs contrary to the very object of Section 19-A of the Act of 2001. 18. Learned counsel submitted that the power, given under Section 19-A of the Act of 2001, is to consider the fact of nonpayment of rent by tenant and during pendency of eviction application, for remaining in possession of the property let out to him. 19. Learned counsel submitted that the petitioner is nephew of lat Shri Jyotiindra Lal Banerjee and a ’Will’ dated 24th May, 2008 was executed in favour of the present petitioner, wherein the present petitioner was declared to be owner of the property, which was let out to the respondent. 20. Learned counsel submitted that in view of the petitioner being owner of the property, has every right to recover the possession of let out property and during pendency of the application, filed for eviction, the petitioner is also entitled for arrears of rent and continuous payment of rent during occupancy by the respondent. 21. 20. Learned counsel submitted that in view of the petitioner being owner of the property, has every right to recover the possession of let out property and during pendency of the application, filed for eviction, the petitioner is also entitled for arrears of rent and continuous payment of rent during occupancy by the respondent. 21. Learned counsel for the petitioner submitted that the analogy, which has been adopted by the Court below to deny benefits, as provided under Section 19-A of the Act of 2001, will be detrimental to the interest of landlord and in a given case, if the tenant disputes the fact of ownership of landlord, such false plea will result into depriving the landlord from receiving payment of rent during pendency of the application and the very purpose of Section 19-A of the Act of 2001 will be frustrated. 22. Learned counsel further submitted that the Court below has wrongly come to the conclusion that only after recording evidence of the parties, the prayer sought by the petitioner, in the application under Section 19-A of the Act of 2001, can be granted. 23. I have considered the submissions made by learned counsel for the petitioner and perused the material available on record. 24. This Court finds that the application, filed by the petitioner under Section 19-A of the Act of 2001, was required to be considered by the Court below independently and the same was not dependent on deciding the issue, said to be framed between the parties relating to the relationship of landlord and tenant. 25. This Court further finds that the very purpose of Section 19-A of the Act of 2001 will be frustrated, if such applications are not decided at the time of filing the applications and the same is made dependent on the outcome of final application to be decided, which is filed under Section 9 of the Act of 2001. 26. This Court further finds that if the petitioner, on the basis of a ’Will’, has claimed himself to be owner of the property and has filed application for eviction of tenant, no false plea by tenant can be permitted to be considered to deny payment of rent during pendency of the application, filed by the landlord. 27. 26. This Court further finds that if the petitioner, on the basis of a ’Will’, has claimed himself to be owner of the property and has filed application for eviction of tenant, no false plea by tenant can be permitted to be considered to deny payment of rent during pendency of the application, filed by the landlord. 27. This method or strategy by tenant to deny the title of landlord and then to claim exemption from application under Section 19-A of the Act of 2001, will defeat the very purpose of Section 19-A of the Act of 2001. 28. This Court does not find reasoning of the Court below to be legally sustainable by observing that only after recording evidence, the application under Section 19-A of the Act of 2001 will be considered. 29. This Court also deplores the conduct of respondent, who has been avoiding service in spite of all the means adopted by the petitioner and these kind of litigants destroy the very foundation of administration of justice by avoiding such dubious means. The litigant, who appears in the Court, has to show due respect or at least, he/she has to comply with the orders and as far as service/summon on these parties is concerned, dubious methods, which are adopted by the parties to avoid service, need to be dealt with by the Courts in a strict way. 30. This Court, accordingly, sets-aside the order dated 13th February, 2019 and allows the application, filed by the petitioner, for grant of arrears of rent and further to get rent during pendency of the application under Section 9 of the Act of 2001. The arrears will be paid by the respondent within a period of one month and further, he will be paying monthly rent of Rs.5,000/- at the end of every month. With the aforesaid, the writ petition stands allowed.