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2024 DIGILAW 555 (RAJ)

Rajendra Prasad S/o Shri Purushottam Sharma v. Krishna Swaroop S/o Shri Bhagwati Prasad Ojha

2024-04-05

NUPUR BHATI

body2024
ORDER : 1. The petitioners/tenant have preferred this writ petition challenging the judgments dated 18.01.2023 (Annex.5) and 20.01.2024 (Annex.7) passed by Rent Tribunal, Bhilwara and Appellate Rent Tribunal, Bhilwara, respectively whereby eviction decree has been passed against the petitioners from the suit shop. 2. Briefly stated, the facts of the case are that the respondents filed an application seeking eviction of the petitioners from the suit premises under the provisions of Section 9 (A) of the Rajasthan Rent Control Act, 2001 (‘Act of 2001’). In the application, it was inter-alia alleged that the suit property, situated in Nagori Garden, Bhilwara was let out on 01.05.2002. In the application, the respondents alleged that earlier also a petition seeking eviction of the petitioners/tenant was filed on 10.08.2006 on the ground of default in payment of rent, material alteration and reasonable bonafide necessity, however, the said petition was dismissed on 17.01.2017, against which the appeal preferred by the respondents/landlord is pending. During pendency of the appeal, initially the rent was deposited by the tenant in Bank account of Sh. Bhagwati Prasad up till September 2007, however, after death of Sh. Bhagwati Prasad, the petitioners stopped making payment of the monthly rent. Thereafter, the respondents served a legal notice through their counsel on 29.02.2012 calling upon the petitioners/tenant to pay outstanding rent from October 2007, however, even after receiving the legal notice, the petitioners failed to pay the outstanding rent. Thereafter, another notice dated 13.02.2017 was sent to the petitioners calling upon the petitioners to deposit outstanding rent to the tune of Rs.17,42,890/- (i.e. from October 2007 to January 2017 i.e. for 112 months) in the Bank account, the details whereof were also mentioned in the notice dated 13.02.2017. The petitioners, after receipt of the notice dated 13.02.2017 deposited a sum of Rs.6,48,927/- on 16.03.2017 in the Bank account of the landlord i.e. up till September 2011, however, remaining amount was not deposited by the petitioners. Thereafter, on 04.04.2017 again a notice was issued by the landlord through their counsel requesting the petitioners to deposit remaining outstanding rent i.e. Rs.11,32,937/-, however, instead of depositing the outstanding rent, a vague reply was given by the tenant through their counsel while denying that any outstanding rent was there to be paid by them. Thereafter, on 04.04.2017 again a notice was issued by the landlord through their counsel requesting the petitioners to deposit remaining outstanding rent i.e. Rs.11,32,937/-, however, instead of depositing the outstanding rent, a vague reply was given by the tenant through their counsel while denying that any outstanding rent was there to be paid by them. It was rather alleged in the reply to the notice by the petitioners that although rent up till September 2017 was paid by them, but the receipt was not issued by the landlord and that the rent was paid by them in cash. It was further alleged that the petitioners deposited a sum of Rs.6,48,927/- towards the outstanding rent from October 2007 up till August 2011, however, the remaining amount was never ever paid by the tenant. Thus, the application seeking eviction of the petitioners/tenant was filed on the ground of default in payment of the rent and for recovery of outstanding rent to tune of Rs.6,66,112/- and till the eviction of the petitioners, the rent be directed to be paid as per prevailing monthly rent i.e. Rs.19,487/- and as per agreement from the month of May 2018, the enhanced rent of Rs.21,435/- be paid. 3. On receipt of the summons, the petitioners/tenant filed their reply while denying default in payment of the rent. The petitioners in their reply alleged that though the rent up to September 2016 was paid, however, payment receipts were not issued by the landlord despite repeated requests being made by the petitioners. The petitioners also alleged that as such no rent was due of four months and the petitioners had deposited Rs.6,48,927/- in the Bank account and the rent which was claimed by the landlord, was time barred. It was thus prayed that the application seeking eviction be dismissed. 4. The respondents/landlord in support of their case examined one Sh. Krishna Swarop as AW.1 and he was cross-examined. On behalf of petitioners/tenant, statement of Kulish were recorded as NAW.1. Certain documents were also got exhibited from both the sides. 5. The Rent Tribunal, Bhilwara as per the pleadings of the parties framed three issues including relief. 6. 4. The respondents/landlord in support of their case examined one Sh. Krishna Swarop as AW.1 and he was cross-examined. On behalf of petitioners/tenant, statement of Kulish were recorded as NAW.1. Certain documents were also got exhibited from both the sides. 5. The Rent Tribunal, Bhilwara as per the pleadings of the parties framed three issues including relief. 6. The Rent Tribunal, Bhilwara after hearing the counsel for the parties and considering the evidence led by the respective parties vide its judgment dated 18.01.2023 (Annex.5) proceeded to allow the application preferred by the respondents/landlord and directed the petitioners to hand over the peaceful and vacant possession of the suit shop to the landlord and also pay the outstanding rent from 05.09.2017 till the date of decision i.e. 18.01.2023 to the respondents/landlord. 7. Being appalled by the judgment dated 18.01.2023 (Annex.5), the petitioners preferred an appeal (Annex.5) before the Appellate Rent Tribunal, Bhilwara. 8. The Appellate Rent Tribunal, Bhilwara after hearing the arguments of the parties, proceeded to dismiss the appeal preferred by the petitioners vide judgment dated 20.01.2024 (Annex.7) while concurring with the findings arrived by the Rent Tribunal, Bhilwara. 9. The petitioners thus aggrieved by both the judgments dated 18.01.2023 (Annex.5) and 20.01.2024 (Annex.7) passed by Rent Tribunal, Bhilwara and Appellate Rent Tribunal, Bhilwara, have preferred this writ petition. 10. Learned counsel appearing for the petitioners vehemently submits that while passing the judgments and certificates dated 18.01.2023 (Annex.5) and 20.01.2024 (Annex.7) both the Tribunals have erred in law as also in facts, inasmuch as the provisions of Section 9 (A) of the Act of 2001 have not been considered in true correct perspective. Learned counsel for the petitioners submits that the respondents preferred application seeking eviction on the ground of default in payment of rent while claiming outstanding rent for several years and not of few months. Counsel for the petitioners further submitted that earlier also the eviction of the petitioners from the suit shop was sought on the ground of default in payment of rent, material alteration and bonafide necessity, however, the same was rejected by the Rent Tribunal vide judgment dated 17.01.2017 and appeal preferred against the said judgment was also dismissed. Thus, the respondents were not bonafide in seeking eviction of the petitioners on the alleged ground of default in payment of the rent and both the Tribunals have not considered this aspect of the matter. 11. Thus, the respondents were not bonafide in seeking eviction of the petitioners on the alleged ground of default in payment of the rent and both the Tribunals have not considered this aspect of the matter. 11. Learned counsel for the petitioners further submits that while deciding the case set up by the respondents/landlord, the Tribunals have completely overlooked to consider that there was default in payment of the rent by the petitioners/tenant. He further submits that the petitioners on 01.04.2017 while replying to the notice specifically denied the factum of any due rent and the respondents/landlord have not even countered the fact of rent being paid by the petitioners in cash and no receipts in lieu thereof were issued by the respondents. Learned counsel for the petitioners further submits that while deciding issues No. 1 and 2 against the petitioners, both the Tribunals have not considered the pleadings, material and evidence led by the parties in correct perspective. He further submits that the respondents prior to filing the application seeking eviction have to serve notice of continuous default being made by the tenants for four months, and no notice was ever given for default said to be made during February 2017 up to the date of filing the eviction petition. He further submits that the notice was not sent by the registered post, as stipulated under Section 9(a) of the Act of 2001. Section 9(a) of the Act of 2001 reads as under:- “9. He further submits that the notice was not sent by the registered post, as stipulated under Section 9(a) of the Act of 2001. Section 9(a) of the Act of 2001 reads as under:- “9. Eviction of tenants - Notwithstanding anything contained in any other law or contract but subject to other provisions of this Act, Rent Tribunal shall not order eviction of tenant unless it is satisfied that: (a) the tenant has neither paid nor tendered the amount of rent due from him for four months: Provided that the ground under this clause shall not be available to the landlord if he has not disclosed to the tenant his hank account number and name of the bank in the same Municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due: Provided further that no petition on the ground under [his clause shall he filed unless the landlord has given it notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the (late of service of notice. Explanation - For the purposes of this clause, the rent shall be deemed to have been tendered when the sane is remitted through money order to the landlord by properly addressing the same; [or having been deposited with the Rent Authority].” 12. Counsel for the petitioners also raised a plea that the eviction decree has been granted in favour of dead person i.e. Smt. Saroj Bohra and any order in favour or against a dead person is a nullity. It was thus prayed that the judgments impugned passed by both the Tribunals be set aside. 13. Learned counsel for the petitioners also submits that the procedure under Order XLI Rule 31 of the Code of Civil Procedure. 1906, (hereinafter referred to as “CPC”) have not been complied with which is a mandatory provision and thus, the learned Appellate Rent Tribunal, Bhilwara while passing the impugned order dated 20.01.2024 (Annex. 7), have erred in law. Order XLI Rule 31 of the CPC, 1906 reads as follows: “31. Contents, date and signature of judgment.—The judgment of the Appellate Court shall be in writing and shall state: (a) the points for determination. (b) the decision thereon. (c) the reasons for the decision. 7), have erred in law. Order XLI Rule 31 of the CPC, 1906 reads as follows: “31. Contents, date and signature of judgment.—The judgment of the Appellate Court shall be in writing and shall state: (a) the points for determination. (b) the decision thereon. (c) the reasons for the decision. (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 14. On the other hand, learned counsel appearing for the respondents submits that the judgments passed by both the learned Tribunals do not require any interference by this Court, inasmuch as the same have been passed after minutely appreciating and considering the evidence, oral as well as documentary led by the parties. Learned counsel for the respondents further submits that Order XLI Rule 31 of the CPC is not applicable to the present case due to the bar mentioned under Section 21(3) of the Act of 2001, which reads as under: “21. Procedure and powers of the Rent Tribunal and the Appellate Rent Tribunal: xxxx (3) The Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908), but shall be guided by the principal of natural justice and subject to other provisions of this Act or the Rules made thereunder and shall have powers to regulate their own procedure, and for the purpose of discharging their – functions under this Act they shall have, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Central Act No. 5 of. 1908) while trying a suit or an appeal in respect of following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath. (b) requiring the discovery and production of documents. (c) reviewing its decision. (d) issuing commissions for the examination of witnesses or documents. (e) dismissing petition for default or deciding it ex-parte. (f) setting aside any order of dismissal of any petition for default or any order passed by it ex-parte. (g) bringing legal representatives on record. (h) any other, matter as may be prescribed.” 15. Learned counsel for the respondents/landlord submits that after death of Sh. (e) dismissing petition for default or deciding it ex-parte. (f) setting aside any order of dismissal of any petition for default or any order passed by it ex-parte. (g) bringing legal representatives on record. (h) any other, matter as may be prescribed.” 15. Learned counsel for the respondents/landlord submits that after death of Sh. Bhagwati Prasad, the petitioners/tenant had not paid single penny to the landlord and it was only when the notice dated 16.03.2017 was issued by the respondents, it was on 16.03.2017 a sum of Rs.6,48,927/- was paid by the petitioners/tenant, which was the part outstanding rent up till September 2011 and the remaining outstanding amount of rent was not deposited and thus was clear default in payment of the monthly rent on the part of the petitioners/tenant, which has amply been proved by the respondents by leading cogent and convincing evidence before the learned Rent Tribunal. Learned counsel for the respondents, therefore, prayed that the writ petition be dismissed. 16. I have considered the submissions made by counsel for the parties and have perused the material available on record. 17. This Court finds that both the learned Tribunals after considering the evidence led by the parties have concurrently held that there was default in payment of monthly rent by the petitioners/tenant even after receipt of the notice sent by the respondents/landlord. The notices sent were exhibited as Ex.2, 4 and 13, and as per the orders of the learned Tribunals, Ex.2 would reveal that the same was sent by the respondents through their counsel on 29.09.2012, wherein the rent outstanding was claimed from October 2007 and the petitioners were also apprised of the Bank account number, in which they were required to deposit the rent. However, the petitioners even after receipt of the notice when failed to clear off the outstanding rent, another notice dated 13.02.2017 (Ex.4) was issued by the respondents through their counsel claiming outstanding rent from October 2007 to January 2017, and the fact of receiving the notice (Ex.4) has been admitted by NAW.1 (petitioner no. 2) in his cross-examination. However, the petitioners even after receipt of the notice when failed to clear off the outstanding rent, another notice dated 13.02.2017 (Ex.4) was issued by the respondents through their counsel claiming outstanding rent from October 2007 to January 2017, and the fact of receiving the notice (Ex.4) has been admitted by NAW.1 (petitioner no. 2) in his cross-examination. In the notice dated 13.02.2017 (Ex.4), the respondents claimed outstanding rent for 112 months (from October 2007 to January 2017) i.e. Rs.17,42,890/- and thereafter on 16.03.2017 the petitioners deposited a sum of Rs.6,48,927/- in the Bank Account and thereafter again a notice dated 04.04.2017 (Ex.13) was issued by the respondents while reiterating their demand, however, towards the outstanding rent of Rs.17,42,890/-, the petitioners deposited a sum of Rs.6,48,927/- and the plea of the petitioners is that towards the rent of the suit shop the rent amount up to September 2016, was paid in cash and no receipts were issued by the landlord. The said plea sought to be raised that despite making payment of rent in cash, receipts were not issued by the respondents, cannot be accepted by a man of common prudence where the parties had already litigated with each other in the earlier round of litigation. 18. This Court further finds that the submission of the learned counsel for the petitioners that the provision under Order XLI Rule 31 of the CPC, 1908 has not been complied with, is having no force as under Section 21(3) of the Act of 2001, it has been specifically laid down that the learned Rent Tribunal as well as the learned Appellate Rent Tribunal are not bound by the procedure laid down by the CPC, 1908. 19. This Court also finds that the Appellate Rent Tribunal had also considered the fact that when rent up to September 2016 was tendered to the respondents/landlord, then what prompted the petitioners to pay rent of Rs.6,48,927/- on 16.03.2017 for 36 months in the Bank account, and not a single word has been uttered by the tenant in this regard. It is also seen that NAW.1, Kulish Vyas @ Prince (petitioner no. 2) has pleaded ignorance that up to September 2007, the rent was deposited in Bank account and thereafter said rent was paid in cash, and he is having receipts, however, later said that receipts were to be obtained. It is also seen that NAW.1, Kulish Vyas @ Prince (petitioner no. 2) has pleaded ignorance that up to September 2007, the rent was deposited in Bank account and thereafter said rent was paid in cash, and he is having receipts, however, later said that receipts were to be obtained. The petitioners have not specifically denied the outstanding rent as contained in Ex.4, and even after receipt of the notice Ex.4, the petitioners have only stated that the rent which was claimed by the landlord, was time barred. 20. Thus, in view of above discussion, this Court finds no force in the writ petition as both the Tribunals have considered and appreciated the evidence led by the parties, the writ petition is, therefore, dismissed. Stay Petition also stands dismissed.