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2022 DIGILAW 2957 (RAJ)

Ghiyas Bhagat Bhawan v. Kusumlata Rawat W/o (Lt) Manak Chand Rawat

2022-12-13

INDERJEET SINGH

body2022
Order 1. The present writ petition has been filed by the petitioner-tenant challenging the order dated 30.01.2019 passed by the Rent Tribunal, Jaipur Metropolitan, Jaipur (hereinafter to be referred as the Rent Tribunal) whereby the application filed on behalf of the petitioner-tenant under Order 14 rule 2 CPC read with Section 21 of the Rent Control Act, 2001 (hereinafter to be referred as the Act of 2001) was dismissed. 2. Brief facts of the case are that in the first round of litigation, husband of the respondent-landlord filed an eviction application before the Rent Tribunal on the ground of bonafide need and personal necessity as well as for revision of rent. 3. During pendency of the said eviction application, the respondent-landlord's husband Shri Manak Chand Rawat expired and in the said eviction application issue No.1 was with regard to bonafide need and personal necessity, however, due to death of respondent-landlord's husband, the issue No.1 was decided against the landlord. 4. Thereafter, the respondent-landlord again filed an eviction application in the year 2014 against the tenant on the ground of her bonafide need and personal necessity. During pendency fo the said eviction application, the tenant filed an application for framing of additional issues which was allowed by the Rent Tribunal and two additional issues were framed by the Rent Tribunal with regard to bar of filing the present eviction application in view of Order 2 Rule 2 CPC as well as with regard to maintainability of the eviction application with regard to principles of res judicata. 5. Thereafter, the tenant filed another application for deciding the issues No. 4 and 5 on priority basis. The said application was dismissed by the Rent Tribunal vide order dated 29.04.2019 and hence the present writ petition has been filed. 6. Counsel for the petitioner-tenant submits that the respondent-landlord was added as legal representative in place of her husband in the earlier eviction application filed on behalf of her husband. 7. Counsel further submits that earlier eviction application was dismissed on the same grounds with regard to bonafide need and personal necessity and once the said issue of bonafide need and personal necessity has been decided against the respondent-landlord, the respondent-landlord is estopped to file the present eviction application and hence the same is barred by the principles of res judicata. 8. 8. In support of his contentions, counsel for the petitioner-tenant placed reliance upon the judgment passed in the matter of the Hon'ble Supreme Court in the matter of Abdul Rahman Vs. Prasony bai & Anr., reported in (2003) Supreme Court Cases 488 in para 21 helds as under:- "21. For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order 14 Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues." 9. The Hon'ble Supreme Court in the matter of Siddalingamma & Anr. Vs. Mamtha Shenoy, reported in AIR 2001 Supreme Court 2896 in para 9 helds as under:- "9. Rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation of use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court had held that a bona fide requirement must be an outcome of a sincere, honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question be asked by a judge of facts, by placing himself in the place of the landlord, is, whether of in the given facts proved by material on record the need to occupy the premises can be said to be natural, real, sincere, honest? If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberator too conservative or pedantic must be guarded against. If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberator too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell into lesser premises so as to protect the tenant's continued occupation in tenancy premises. In Deena Nath vs. Pooran Lal (2001) 5 SCC 705 this Court has held that bona fide requirement has to be distinguished form a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire." 10. Counsel appearing on behalf of respondent-landlord opposed the writ petition and submitted that the first eviction application filed on behalf of the late husband of present landlord was dismissed and the issue of bonafide need and personal necessity has been decided against the respondent-landlord only on the ground of death of late husband of present landlord. 11. Counsel further submits that there is no bar in filing the second eviction application because the first eviction application was not decided on merits. 12. Counsel further submits that the question of res judicata is a mixed question of facts and law hence all the issues deserves to be decided together. 13. Counsel for the respondent-landlord, in support of his contentions placed reliance upon the judgment passed by the Hon'ble Supreme Court in the matter of Satyanath & Anr. Vs. Sarajamani, reported in 2022 SCC OnLine SC 563 in paras 31 and 34 helds as under:- "31. We find that the order of the High Court to direct the learned trial court to frame preliminary issue on the issue of res judicata is not desirable to ensure speedy disposal of the lis between parties. Order XIV Rule 2 of the Code had salutary object in mind that mandates the Court to pronounce judgments on all issues subject to the provisions of sub-Rule (2). Order XIV Rule 2 of the Code had salutary object in mind that mandates the Court to pronounce judgments on all issues subject to the provisions of sub-Rule (2). However, in case where the issues of both law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that suit first, if it relates to jurisdiction of the Court or a bar to the suit created by any law for the time being in force. It is only in those circumstances that the findings on other issues can be deferred. It is not disputed that res judicata is a mixed question of law and fact depending upon the pleadings of the parties, the parties to the suit etc. It is not a plea in law alone or which bars the jurisdiction of the Court or is a statutory bar under clause (b) of sub-Rule (2). 34. Therefore, the order of the High Court remanding the matter to the learned trial court to frame preliminary issues runs counter to the mandate of Order XIV Rule 2 of the Code and thus, not sustainable in law. The learned trial court shall record findings on all the issues so that the first appellate court has the advantage of the findings so recorded and to obliviate the possibility of remand if the suit is decided only on the preliminary issue." 14. Heard counsel for the parties and perused the record. 15. This writ petition filed by the petitioner deserves to be dismissed for the reasons; firstly, admittedly the petitioner-tenant has enjoyed the property in dispute for last more than 70 years; secondly, the first eviction application was not decided on merits and the issue of bonafide need and personal necessity has been decided against the respondent-landlord only on the ground of death of late husband of present landlord; thirdly, there is no bar under the Act of 2001 for filing second eviction application if the earlier application is not decided on merits; fourthly, the issue of res judicata is a mixed question of law and facts and lastly, in view of judgment passed by the Hon'ble Supreme Court in the matter of Satyanath & Anr. (supra), I am not inclined to exercise the jurisdiction of this court under Article 227 of the Constitution of India. 16. In that view of the matter, the writ petition stands dismissed. All pending applications stand disposed of. 17. However, learned trial Court is directed to decide the eviction application filed on behalf of the respondent-landlord expeditiously.