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2023 DIGILAW 1585 (RAJ)

Lr’s of Surajmal Soni v. Rent Tribunal Bikaner

2023-08-23

NUPUR BHATI

body2023
ORDER : 1. The instant writ petition has been preferred by the petitioner under Article 226 and 227 of the Constitution of India with the following prayers:- “It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuing an appropriate writ, order or direction the impugned order dated 04.03.2014 (Annex.15) passed by learned Appellate Rent Tribunal, Bikaner may kindly be quashed and set aside and restore the order dated 16.11.2012 (Annex.14) passed by the learned Rent Tribunal, Bikaner in Civil Original Case No. 104/2007. Any other order favourable to the petitioner may also be passed.” 2. Brief facts of the case are that the petitioner has a residential house at Gangashahar, Bikaner in which there are three shops and out of those three shops one shop was rented out by the petitioner to respondent No.3 Kishan Lal on 20.02.1982 for the purpose of opening a barber shop and also for doing the business of repairing radio and watches and, thus, the rent-deed dated 20.02.1982 was executed between the petitioner’s mother Smt Asha Devi and Respondent No.3. Also as per the rent-deed dated 20.02.1982, the tenancy was to continue for three months ie. till 19.05.1982, however the shop was not vacated by the respondent No.3 and he continued using the rented premise till date. 3. Moreover, the respondent No.3 Kishan Lal stopped the barber business and started a new business of flour mill at Bothra Chowk and the shop in question which was rented to respondent No.3 has further sublet to his son, the respondent No.4 Vijay Kumar, without permission of the petitioner in which respondent No.4 started the business of DJ Sound in the name and style of ‘Haribhai Dj Sound’ and the respondent No.4 is creating noise pollution in the house of the petitioner and due to the noise pollution the petitioner is suffering from various health problems and thus to stop the same he filed a complaint at the Gangashahar Police Station. Thereafter the SHO Gangashahar, Bikaner submitted the complaint dated 04.09.2007 against respondent No. 3 and 4 before Sub Divisional Magistrate, Circle North, Bikaner U/S 133 CRPC and the SHO Gangashahar also gave a notice dated 13.11.2007 to the respondents for stopping the noise pollution by the speakers and DJ system. 4. Thereafter the SHO Gangashahar, Bikaner submitted the complaint dated 04.09.2007 against respondent No. 3 and 4 before Sub Divisional Magistrate, Circle North, Bikaner U/S 133 CRPC and the SHO Gangashahar also gave a notice dated 13.11.2007 to the respondents for stopping the noise pollution by the speakers and DJ system. 4. As the shop in question was not used for the purpose for which it was given on rent and the respondents continued creating noise pollution and did not follow the condition that no nuisance will be created in the rented premise, thus, the petitioner filed an application dated 21.09.2007 (Annexure-4) under section 9 of the Rajasthan Rent Control, Act, 2001 (for short “the Act of 2001”) before the Rent Tribunal Bikaner. Thereafter the respondents filed a reply to the application and denied the facts mentioned by the petitioner. The petitioner filed the rejoinder to the reply; The petitioner also filed affidavits of himself, Shanker Lal and Mahaveer Prasad in support of the application. Further the respondent No.3 and respondent No.4, Ganesh and Manoj Kumar also filed their affidavits. 5. After considering the pleadings and evidence led by both the parties, the Rent Tribunal Bikaner vide order dated 16.11.2012 (Annexure-14) allowed the application filed by the petitioner u/s 9 of the Act of 2001 and respondent No.3 and 4 were directed to vacate the shop in question. Aggrieved by the order dated 16.11.2012 the respondents No.3 and 4 preferred an appeal before the Appellate Rent Tribunal, Bikaner and vide order dated 04.03.2014 the Appellate Rent Tribunal, Bikaner allowed the appeal filed by the respondents No. 3 and 4 and quashed the order dated 16.11.2012 passed by the Rent Tribunal Bikaner. Thus aggrieved by the order dated 04.03.2014 (Annexure-15), the petitioner prefers the present writ petition. 6. Learned counsel for the petitioner submits that the a perusal of the rent-deed of the shop in question shows that the shop was given to the respondent-tenant for doing barber business and there is a specific condition in the rent-deed dated 20.02.1982 that the respondent No 3-tenant will not create any nuisance in the shop but the respondent No.3 closed the business of barber and started a new business of flour mill at a different premise i.e. at Bothra chowk and sublet the shop in question/rented premise to respondent No. 4 his son. The respondent No. 4 started business of Dj Sound and is creating noise pollution which is creating various health problems for the petitioner and his family and thus, the respondents have violated the conditions of the rent-deed therefore the petitioner is entitled for getting the possession of the shop in question vacated as per the provisions of the section 9 of the Act of 2001 and the conditions of the rent-deed dated 20.02.1982. 7. Learned counsel for the petitioner further submits that the Rent tribunal vide order dated 16.11.2012 by perusing the documentary evidence has held that nuisance was created by the respondent No.4 while doing the business of DJ sound in the shop in question and learned Appellate Tribunal without appreciating the findings of the Rent Tribunal has allowed the appeal filed by the respondent No 3 and 4 which deserves to be quashed. He also submits that as per section 9(d) of the Act of 2001 if the tenant creates any nuisance or does any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises then the landlord is entitled for eviction of the tenant and from the perusal of evidence led by the petitioner it is clear that the respondents have created noise pollution and nuisance by way of using Dj sound. 8. Learned counsel for the petitioner also submits that the respondents have also violated the provisions of section 9(k) of the Act of 2001 which provides that if the premises have not been used without reasonable cause otherwise for the purpose for which they were let for a continuous period of six months immediately preceding the date of the petition, then the landlord is entitled for eviction of the tenant. Thus the impugned order dated 04.03.2014 (Annexure-15) deserves to be quashed and set aside. 9. Learned counsel for the petitioner also submits that the petitioner and his wife are both old aged people and due to high level of noise pollution made by the respondents the petitioner is suffering from various health problems and diseases and are facing inconvenience, and also their grandson Govind Soni has failed in the secondary examination in the year 2009 and is suffering due to the nuisance and disturbance created by the respondent No.3 and 4. 10. 10. Per contra learned Senior Counsel for the respondent submits that no documentary evidence has been filed by the petitioner regarding the illness and, moreover, no doctor has been examined with regard to the disease or any health issues suffered by the petitioner-landlord and his family. He further submits that no documentary evidence or examination result has been filed by the petitioner to prove that the grandchildren of the petitioner have failed in the examination. He also submits that two witnesses namely PW2 Shankarlal and PW3 Mahaveer prasad have not deposed regarding creating nuisance whereas DW 3 Ganesh and DW 4 Manoj Kumar have been examined by the respondent-tenant on which the Rent Tribunal did not give any observation even when they are the neighbouring shopkeepers. 11. Learned Senior Counsel for the respondent further submits that the Rent Tribunal observes that nuisance was created by the respondents by way of DJ sound, whereas regarding the same no cross-examination of PW3 Mahaveer Prasad was done therefore the Rent Tribunal cannot come to a conclusion that the respondents are creating nuisance as PW3 Mahveer Prasad in his chief-examination has not stated if nuisance was created as a result of DJ sound. He further submits that the Rent Tribunal has considered Section 133 CrPC proceedings as corroborative evidence whereas the petitioner has not filed any documentary evidence in regard to the same, thus the writ petition deserves to be dismissed. 12. Learned Senior Counsel for the respondent also submits that it has been wrongly stated by the petitioner that the shop in question was given for rent only for three months. He also submits that the respondents-tenant never agreed to the clause no 6 of the rent-deed that the respondent will never create any nuisance. The respondent has also never agreed that if he violates any of the conditions of the rent-deed then he will be liable to vacate the rent premises. He further submits that the petitioner has wrongly stated that any kind of disturbance is caused to the petitioner or his wife and that they are having health issues or that the petitioner’s grandchildren are getting disturbed in their studies because of the DJ sound because the petitioners themselves have a DJ Sound shop and moreover, the shop of the respondents gets closed early around 8pm, thus, the contentions of the petitioners are baseless and unreliable. 13. 13. Learned Senior Counsel for the respondents also submits that the shop in question was taken by respondent No. 3 on rent as a Karta for the Joint Hindu family thus it cannot be said by the petitioner-landlord that the shop was sublet by the respondent No.3 to his son Vijay Kumar respondent No. 4. He further submits that the shop in question was let out on rent not only for barber business but was taken on rent for carrying out any type of business which the respondent-tenant wished to do and thus clause 3 has been wrongly incorporated in the rent-deed as any type of business could be done and thus the tenant is not restricted only to the business of barber shop. He also submits that the clause 6 regarding nuisance has been wrongly mentioned in the rent-deed and it is wrongly stated by the petitioner-landlord that the playing of DJ creates any kind of nuisance. 14. Learned Senior Counsel for the respondent further submits that the alternate shop regarding which the petitioner states that the respondent is running a flour-mill is the paternal/ancestral house of the respondent-tenant. He also submits that the respondents have no knowledge regarding the petitioner having filed a complaint U/S 133 CRPC before Sub Divisional Magistrate, (North) Bikaner and also did not receive any summons regarding the same. 15. Heard Learned counsel for the parties; perused the material available on record and the judgments cited at the Bar. 16. The learned Rent Tribunal, Bikaner, based on the pleadings of the parties, framed following issues:- ^^¼1½ fd D;k oknxzLr ifjlj vizkFkhZ la[;k ,d us vizkFkhZ la[;k nks dks mi fdjk;snkjh ij ns fn;k\ ¼2½ fd D;k oknxzLr ifjlj esa vizkFkhZ U;wlsal iSnk djrk gS\ ¼3½ fd D;k izkFkhZ la[;k ,d dks viuh vko';drk gsrq vU; i;kZIr ifjlj miyC/k gS\^^ 17. This Court finds that the learned Rent Tribunal Bikaner, while deciding issue No.2 in favour of the petitioner, observed that the respondent No.4 has committed nuisance while playing DJ in loud voice. In this regard, the petitioner has produced PW-2 Shankar Lal and PW-3 Mahaveer Prasad. PW-2 Shankar Lal, in his statement, deposed that the respondent No.4 used to play DJ till 10.00 p.m. and whenever somebody came, the same was stopped. In this regard, the petitioner has produced PW-2 Shankar Lal and PW-3 Mahaveer Prasad. PW-2 Shankar Lal, in his statement, deposed that the respondent No.4 used to play DJ till 10.00 p.m. and whenever somebody came, the same was stopped. PW-3 Mahaveer Prasad, in his examination-in-chief, has deposed that the petitioner and his wife are old-aged persons, aged about 70 years and there was always a scuffle in regard to the nuisance and that he was seeing this scuffle for the last 10-12 years. This witness (PW-13, Mahaveer Prasad) has not been cross-examined by the respondents and thus, the statement of PW-3 Mahaveer Prasad remained uncontroverted. 18. This Court also finds that the learned Rent Tribunal also observed that the petitioner produced a copy of the complaint filed under Section 133 Cr.P.C., in which also, and from a perusal of the same, it is clear that the police submitted the complaint before the SDM, Circle Bikaner on finding that the nuisance was being created by the respondent No.4 while playing DJ in loud voice. The learned Rent Tribunal also observed that the plea of the respondents that the petitioner himself is having a shop of DJ cannot be accepted as this cannot give them right to create nuisance. The learned Rent Tribunal, therefore, decided the issue No.2 in favour of the petitioner while considering the material and evidence on record, particularly in view of the fact that the testimony of PW-3 Mahaveer Prasad remained uncontrovered. 19. This Court further finds that the rent-deed (Annex.1) entered between the petitioner and the respondent-tenant, there was a categorical condition No.6 that the respondent-tenant shall not create any nuisance in the premises in dispute and thus, the respondent’s averment that the said condition in the rent-deed was not accepted by him and that the said condition in the rent-deed has been wrongly included in the rent-deed by the petitioner is not acceptable as the respondent-tenant has not challenged the rent-deed and the same was signed willfully by both the parties and thus, it has been found that the respondent-tenant has blatantly violated the condition No.6 of the rent-deed by creating nuisance in the premises in dispute. 20. 20. In view of the aforesaid submissions, this Court observes that the petitioner has been able to prove that the respondents were creating nuisance while playing DJ in loud sound, particularly in view of the fact that the testimony of PW-3 Mahaveer Prasad remained uncontrovered, who has categorically deposed that the respondents used to play DJ loudly, which was creating nuisance and that there was a regular scuffle in this regard for the last 1012 years. 21. In view of the above, the writ petition deserves to be and is hereby allowed. The impugned order dated 04.03.2014 (Annex.15), passed by the learned Rent Appellate Tribunal, Bikaner in Appeal Decree No.120/2012 is quashed and set aside and the order of the learned Rent Tribunal dated 16.11.2012 (Annex.14) passed in Civil Original Case No.104/2007 is restored. 22. The stay application and all other pending applications, if any, stand disposed of accordingly.