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2024 DIGILAW 454 (RAJ)

Rohit Jora v. Jamna Jakhar

2024-03-14

NUPUR BHATI

body2024
ORDER : (Nupur Bhati, J.) The petitioner has preferred this writ petition under Articles 226 and 227 of the Constitution of India challenging the judgments and decrees dated 24.12.2018 (Annex.9) and 22.08.2023 (Annex.11) passed by Rent Tribunal, Sri Ganganagar and Appellate Rent Tribunal, Sri Ganganagar respectively, whereby application preferred by respondent/landlady under Section 9 of the Rajasthan Rent Control Act, 2001 ('Act of 2001') seeking eviction of the petitioner/tenant from the suit shop has been allowed and certificate of possession has been issued in favour of respondent/landlady. The Rent Tribunal, Sri Ganganagar also directed the petitioner to pay mesne profit three times of the monthly rent to the landlady. 2. The apposite for the purpose of disposal of this writ petition are that the respondent/landlady had preferred application under Section 9 of the Act of 2001 on 04.04.2016 seeking eviction of the petitioner/tenant from the suit premises i.e. shop measuring 10'x30' situated at C-Block, Sri Ganganagar, which was initially let out on a monthly rent of Rs.2325/- under an agreement dated 16.11.2006. In the application, it was inter-alia averred by the respondent that the petitioner/tenant voluntarily stopped paying the agreed rent of the suit shop and thereafter after service of legal notice, the tenant deposited the rent in the bank account of the respondent. Thereafter, for the period viz. 01.07.2015 to 31.01.2016 when rent was not paid and there was default of four months, a registered legal notice was issued on 24.02.2016, which the petitioner/tenant deliberately refused to accept the same and with the aforesaid endorsement the registered notice was returned by the postal department to the counsel for the landlady. Even after expiry of thirty days, the petitioner/tenant failed to deposit the rent for the period 01.07.2015 to 31.06.2016 and it was on 28.03.2016 that the petitioner deposited Rs.9813/- towards rent for the months of 7/2015, 8/2015 and 9/2015 and thus the petitioner committed default in payment of the rent. The respondent/landlady thus filed the application under Section 9 of the Act of 2001 seeking eviction of the petitioner from the suit shop and decree of due amount of the rent. 3. After receipt of the summons, the petitioner/tenant filed reply to the application under Section 9 of the Act of 2001. The respondent/landlady thus filed the application under Section 9 of the Act of 2001 seeking eviction of the petitioner from the suit shop and decree of due amount of the rent. 3. After receipt of the summons, the petitioner/tenant filed reply to the application under Section 9 of the Act of 2001. In the reply, the petitioner/tenant averred and accepted that the rent of the suit shop was Rs.3271/- per months, and the same was to paid quarterly in terms of the agreement. The petitioner/tenant denied the default of four months in payment of the monthly rent. The petitioner/tenant further averred that there was no default on his part in payment of the rent, inasmuch as on 26.02.2016, the petitioner had already deposited Rs.9812/- in the bank account of the respondent/landlady and as such no rent of more than four months was due. The petitioner thus prayed that the application be rejected. 4. Thereafter, on the basis of pleadings of the parties, the Rent Tribunal, Sri Ganganagar proceeded to frame three issues. 5. On behalf of respondent/landlady, she examined herself as AW.1 and one Sh. Birbal Jakhar as AW.2 and also filed their affidavits, upon which they were cross-examined. On behalf of petitioner/tenant, he examined himself as DW.1 and also filed his affidavit, upon which he was cross-examined. 6. The Rent Tribunal, Sri Ganganagar, after hearing the parties and considering the evidenced led by the parties, vide judgment and decree dated 24.12.2018 (Annex.9) granted decree of eviction of the petitioner from the suit shop while also directing him to pay mesne profit @ three times of the rent after three months from the date of judgment. 7. Being aggrieved of the order dated 24.12.2018 (Annex.9), the petitioner/tenant preferred appeal before the Appellate Rent Tribunal, Sri Ganganagar. During pendency of the said appeal, an application purportedly under Order 41, Rule 27 read with section 151 CPC came to be filed by the petitioner/plaintiff seeking to call upon the postman (Prakash Singh) in evidence in order to establish that the notice was served on the tenant and that he (petitioner) refused to accept the notice. The said application was contested by the respondent/landlady and vide order dated 22.11.2022, the Appellate Rent Tribunal directed that the said application will be considered at the time of final arguments. 8. The said application was contested by the respondent/landlady and vide order dated 22.11.2022, the Appellate Rent Tribunal directed that the said application will be considered at the time of final arguments. 8. During pendency of the appeal, execution proceedings were initiated by the respondent/landlady seeking execution of the judgment and decree dated 24.12.2018 (Annex.9). 9. The Appellate Rent Tribunal, Sri Ganganagar thereafter vide its judgment and decree dated 22.08.2023 (Annex.11) proceeded to dismiss the appeal filed by the petitioner/tenant and thereby affirmed the judgment and decree dated 24.12.2018 (Annex.9). While dismissing the appeal, the Appellate Rent Tribunal also observed that the application under Order 41, Rule 27 read with section 151 CPC was filed with a view to delay the proceedings and also dismissed the said application as well. 10. Thus, being aggrieved by and dissatisfied with judgments and decrees dated 24.12.2018 (Annex.9) and 22.08.2023 (Annex.11), the present writ petition has been preferred by the petitioner/tenant. 11. Learned counsel for the petitioner submits that both the Tribunal have gravelly erred in granting decree of eviction on the ground of default in payment of the rent, inasmuch as both the Tribunals have failed to appreciate the real controversy involved and has not considered the evidence led by the parties in correct perspective. Learned counsel for the petitioner contended that none of the grounds raised by the petitioner/tenant in the reply have been considered, inasmuch as the mandatory conditions of Section 9-A of the Act were not satisfied. Learned counsel for the petitioner also argued that service of legal notice, as mandatorily required, was not proved by the respondent/landlady by examining the concerned postman. 12. Learned counsel for the petitioner further submitted that being an adjudicating authority, it was incumbent upon the learned Rent Tribunal to consider the aspect as to whether there was any default in payment of the monthly rent or not. Learned counsel for the petitioner tried to convince that inadvertently it was mentioned that payment made on 01.10.2015 i.e. Rs.12061/- was not amount of three months up till June, 2015, but was inclusive of the rent of July, 2015. However, this aspect has escaped the notice of both the Tribunals. 13. Learned counsel for the petitioner tried to convince that inadvertently it was mentioned that payment made on 01.10.2015 i.e. Rs.12061/- was not amount of three months up till June, 2015, but was inclusive of the rent of July, 2015. However, this aspect has escaped the notice of both the Tribunals. 13. Learned counsel for the petitioner further argued that the Appellate Rent Tribunal has also erred in not considering the grounds raised in the appeal and the application filed under Order 41, Rule 27 read with section 151 CPC, inasmuch as the petitioner specifically denied the service of the notice on him or refusal thereof. The burden to prove that the service of the notice, the burden of proof though was upon the respondent/landlady, however, the same has not been discharged by the respondent by examining the postman concerned and this glaring aspect has not been considered by both the Tribunals. Learned counsel for the petitioner also questioned the judgment and decree granting mesne profit @ three times of the rent in favour of respondent/landlady. 14. Learned counsel for the petitioner thus prayed that the writ petition deserves acceptance and the judgments and decrees dated 24.12.2018 and 22.08.2023 passed by Rent Tribunal, Sri Ganganagar and Appellate Rent Tribunal, Sri Ganganagar respectively deserve to be quashed and set aside. 15. On the other hand, learned counsel appearing for the respondent/landlady submitted that the decree of eviction and mesne profit passed by both the Tribunals call for no interference as the respondent/landlady has proved service of notice upon the petitioner and default in payment of the monthly rent by the petitioner. 16. Learned counsel for the respondent/landlady submits that even after service of notice and expiry of one month's period, the petitioner/tenant failed to deposit the due rent and thereby committed default in payment of the rent. Counsel for the respondent submits that refusal to accept notice and return whereof with the refusal endorsement amounts to service of the notice and, therefore, it has rightly been held by the Tribunals that the service of notice was effected on the petitioner/tenant and even after service of the notice, the rent of three months viz. July, 2015, August, 2015 and September, 2015 was deposited, thus there was default in payment of the rent. July, 2015, August, 2015 and September, 2015 was deposited, thus there was default in payment of the rent. Learned counsel for the respondent thus submitted that concurrent judgments passed by the Tribunals call for no interference and the writ petition deserves to be dismissed. 17. I have considered the submissions made by counsel for the parties and have also perused the material available on record. 18. This Court finds that the Rent Tribunal after considering the material available on record has rightly held that even after refusing to accept the notice sent by counsel for the respondent/landlady and after expiry of one month's period, the petitioner/tenant had deposited outstanding rent of only three months only i.e. for the months of July, 2015, August, 2015 and September, 2015 and failed to deposit the rent of remaining four months i.e. up till 31.01.2016, thereby the petitioner committed default in payment of the rent. The petitioner/tenant had miserably failed to lead any evidence that the rent was deposited by him prior to the duration/period mentioned in the notice. In the opinion of this Court, both the Tribunals have rightly decided the issue No.1 in favour of respondent/landlady and rightly passed eviction decree on the ground of default in payment of the rent. 19. This Court also finds that in the reply to application under Section 9 of the Act seeking eviction of the petitioner, the petitioner/tenant had simply stated that he has not received the notice, however, nothing has been stated by the petitioner that the notice (Exhibit-4) was refused to be accepted by him; and it was the appellate stage only that the petitioner preferred an application purportedly under Order 41, Rule 27 CPC seeking to call the postman concerned to prove that he ever refused to accept the notice (Exhibit-4). The said attempt on the part of leading further evidence at appellate stage has been made with a view to stall/delay the proceedings of the appeal. 20. The Hon'ble Apex Court as also this Court in catena of judgments has held that default in payment of rent is a ground for granting eviction decree in favour of landlord. Here in the case at hand, the respondent/landlady has proved the service of notice upon the petitioner and petitioner's default in payment of rent for four months. 21. 20. The Hon'ble Apex Court as also this Court in catena of judgments has held that default in payment of rent is a ground for granting eviction decree in favour of landlord. Here in the case at hand, the respondent/landlady has proved the service of notice upon the petitioner and petitioner's default in payment of rent for four months. 21. Thus, in the considered opinion of this Court, no interference in the concurrent judgments passed by the learned Tribunals is made out. The writ petition lacks merits and, therefore, the same is hereby dismissed. Stay Petition also stands dismissed.