Rajasthan High Court - Jodhpur
Vali Mahammad vs Appellant Rent Tribunal & Ors on 25 May, 2009
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
S.B.CIVIL WRIT PETITION NO.3716/009
(Vali Mohammed Vs. The Appellate Rent Tribunal & anr.)
Date of Order :: 25th May 2009
HON'BLE MR.JUSTICE DINESH MAHESHWARI
Mr.Sanjeet Purohit for the petitioner
....
BY THE COURT:
By way of this writ petition, the petitioner seeks to challenge the order dated 20.03.2009 (Annex.17) as passed by the Appellate Rent Tribunal, Bikaner (hereinafter referred to as 'the Appellate Tribunal') in Appeal No.155/2004 rejecting an application (Annex.14) moved by him on 25.02.2009 under Section 19(9) of the Rajasthan Rent Control Act, 2001 ('the Act' / 'the Act of 2001') read with Order XLI Rule 27 of the Code of Civil Procedure ('CPC').
The background in which the said application (Annex.14) was moved by the petitioner could be taken into comprehension thus: A shop situated at Fad Bazar, Gajner Road, Bikaner had been let out to the petitioner-tenant Vali Mohammed by the respondent-landlord Jugal Kishore. The respondent-landlord had earlier filed a civil suit bearing No.347/1998 seeking eviction of the petitioner but then, withdrew the same per Section 32 of the Act of 2001 and filed a petition before the Rent Tribunal seeking eviction of the 2 petitioner per clauses (i) and (j) of Section 9 of the Act on the allegations that the premises in question (a shop) and the adjacent premises (a godown with another tenant Ramesh Kumar) were required by him for establishing his business as a grocer and general merchant; that the tenant had established a flour mill at the premises in question but was not carrying on with such business himself and was giving the same on contract basis to other persons; and that the tenant has in possession suitable premises, adequate for his requirement. The petition for eviction so filed was put to contest by the petitioner-tenant; and it appears from the averments taken in the writ petition that the said eviction petition came to be allowed by the Rent Tribunal by the order dated 03.11.2004 that has been challenged by the petitioner in appeal before the Appellate Rent Tribunal, Bikaner.
In the said appeal, on 20.07.2006, the petitioner- appellant-tenant moved an application, purportedly under Order VI Rule 17 CPC, with the submissions that the landlord has received possession of the godown situated adjacent to the suit premises by way of settlement in Execution Case No.2/2006 on 31.03.2006. The petitioner submitted that after receiving possession of the said godown, the respondent- landlord has let the same to one Mukesh son of Ramchandra 3 Khatri at a rent of Rs.3,000/- and the said tenant Mukesh has been carrying on business thereat in the name and style of Mukesh Provision Store and was particularly dealing in biscuits, Ganesh brand zarda, Desai brand bidi, and different brands of cigarettes in wholesale. The petitioner submitted that there had not been any bona fide requirement with the respondent and the facts relating to the godown and its letting out were required to be incorporated in his reply by way of amendment. Simultaneously, the petitioner filed yet another application, under Section 19(9) of the Act of 2001, seeking to produce on record the compromise deed as filed in Execution Case No.2/2006, certified copy of order-sheet dated 31.03.2006, and photographs of the referred premises with negatives.
The respondent-landlord submitted reply to the said application under Order VI Rule 17 CPC and, while questioning the maintainability of the application, asserted that the said other tenant in fact filed a second appeal to the High Court and was granted one year's time to vacate on the condition of furnishing undertaking and depositing arrears of rent but failed to carry out the requirements of the order passed by the High Court and hence, execution proceedings were taken up and warrant for possession was issued and 4 thereafter, the said tenant Ramesh Kumar handed over the premises to the landlord. The respondent-landlord denied the allegations of letting the premises to Mukesh Kumar and pointed out that the said godown has been in his possession only and Mukesh Kumar, his nephew, was carrying on business for about 6-7 years in his personal shop away from the said godown.
It appears that by an order dated 22.08.2008, the Appellate Tribunal issued a commission for site inspection and the Commissioner, after inspecting the site, particularly the said godown on 23.08.2008, submitted his report on 26.08.2008 (Annex.8) pointing out certain goods like those of match boxes, cartons, soap packets and pouches found scattered in the said godown; and also pointed out that the locks were opened by the respondent Jugal Kishore suggestive of the fact that the godown was in his possession.
The petitioner submitted an objection petition in relation to said site inspection with the submissions that after issuance of commission on 22.08.2008, the respondent Jugal Kishore and the tenant Mukesh proceeded to remove some part of goods from the godown and such action of theirs was photographed by him. It was asserted that the only intention on the part of the respondent had been to alter the situation at 5 site and to mislead the Court.
On 24.09.2008, the learned Appellate Tribunal passed three separate orders (Annex.10, Annex.11, and Annex.12). By the order Annexure-10, the Appellate Tribunal proceeded to accept the application as moved by the petitioner under Section 19 (9) of the Act of 2001 insofar it related to the photographs of the site; and chose to take the same on record finding them to be of assistance in appreciation of evidence. By the other order of even date (Annexure-11), the learned Appellate Tribunal considered the application for amendment as moved by the petitioner; and, even while observing that it has the jurisdiction to permit amendment of pleading at any stage, in keeping with the principles of natural justice and any particular provision like Order VI Rule 17 CPC was not required to be looked at, proceeded to reject the application for amendment on merits with the observations that the said godown was in possession of the respondent Jugal Kishore and even if his nephew Mukesh had stored any goods therein, it were not of such a subsequent event whereby the need of the plaintiff came to an end altogether. The observations and the findings in the said order (Annex.11) being relevant for the present purposes are reproduced hereunder for ready reference:-
6
"11- स ष ह क अभ वचन म सश धन रन
अधध ररत अ ल क र य अधध रण ह और यह क स
सतर र रव य ज स त ह कय क इस प र
सश धन प ' तत नय य भसद त र आध ररत ह त ह।
यह र ई ववशष ववधध प वध न आदश 6 तनयम 17
वय.प.स. म नह2 दख ज न ह। उ र क ज तनण6य पसत7त
ह7ए ह9, व स अ न धर तल र ह और ववशष तथय र
ददय ह7ए ह9। श तवत= घटन ऐस ह न च दहए जजसस
-B सव म आवशय त Bर2 तरह स Bण6 ह त ह , तब ह2
इस ब र म सश धन अनम 7 तत द2 ज स त ह।
भमशनर रर ट6, जजस ई ववव द नह2 ह तथ ज
ददन 26.8.2008 रह2 ह, स यह प ट ह क ग द म
र त ल लग ह7आ थ जजस -B सव म जग 7 लक श र न
अ न स च ब स ख ल । इस तरह ग द म ररसर
बज उस स ह इस अदर 7 छ स म न जस -
म धचस बणJल, गत टB6न, स बBन ट, पल जसट
ट आदद रख ह7ए थ। य स म न म7 श न रख ह ,
ऐस नह2 ह। अभ लख र 7 छ फ ट द न क न ददय
ह और य बत य गय ह क भमशनर तनयक7 क
आदश ह न ब द इस स म न ग द म स तन ल ज
रह ह जबक ववद न अधधवक -B सव म दल2ल यह ह
क ररसर ग द म जह र जसथत ह, उस आग फ
लमब चSड जगह ह जह र बल ग कडय खड रहत ह
और स म न ल त ल ज त ह। फ ट इस ग द म हन
नह2 बत य गए ह9। जसथतत जस ह , जब ररसर
बज सवय अप थ=/ B-सव म जग 7 लक श र स ह, च ब
उस स ह और म7 श उस त ज ह त यदद यद -
द इसम छ ट -म ट स म न रखन म र ददय
गय ह त यह ऐस श तवत= घटन नह2 ह ज व द2
वत6म न ररसर - द 7 न आवशय त सम ण B 6 र स
सम प रत ह । यह प थ6न त दर2न ह और पथम
दषय इस श तवत= घटन ई आध र नह2 ह।
12- ररण मत: आवदन अन वशय ह न स ख ररज क य
ज त ह।"
So far as the Commissioner's report and the objections were concerned, the learned Appellate Tribunal, after referring to the orders passed on the aforesaid applications under Order VI Rule 17 CPC and Section 19(9) of the Act of 2001, proceeded to take the said Commissioner's report on record with the following observations:-
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"इस म मल म भमशनर रर ट6 ददन क त 26.8.2008
लग ह7ई ह। इस सबध म आक क ए ह7ए ह रत7 य
आक रर ट6 सबध म न ह र ररसर ग द म म स
स म न तन लन ब र म -B सव म /अप थ= र लग य
गए ह9। जसथतत जस ह , इस रर ट6 इस
अभ लख ग बन य ज त ह।"
Aggrieved by the order Annexure-11 as passed on 24.09.2008 in rejection of his application under Order VI Rule 17 CPC, the petitioner preferred a writ petition to this Court, being S.B. Civil Writ Petition No.7805/2008. The said writ petition was considered by this Court on 17.02.2009 but then, specific submission was made on behalf of the petitioner seeking to withdraw the said petition with liberty to file an application for taking additional affidavit on record in view of the observations in the case of Dwarka Prasad Vs. ADJ., Bharatpur & another: 2007 (3) DNJ (Raj.) 1673. The said writ petition was dismissed as withdrawn with the following order:-
''Learned counsel for the petitioner wants to withdraw this writ petition with liberty to file application for taking additional affidavit on record in view of observation made by the Division Bench of this Court in the case of Dwarka Prasad Vs. A.D.J., Bharatpur & Another, reported in 2007 (3) DNJ (Raj.) 1673.
Permission is granted. The writ petition is accordingly dismissed as withdrawn. It is however made clear that the trial Court may decide the application, if any filed by the petitioner, to the extent of taking the additional affidavit on record.'' Thereafter, on 25.02.2009, the petitioner moved the 8 application under Section 19(9) of the Act of 2001 (Annex.14); and, after making reference to the earlier orders and so also the aforesaid order passed by this Court in the writ petition, submitted that the affidavits relating to subsequent events as being filed by him, one by himself and another by Roop Chand s/o Devilal, be ordered to be taken on record. The application was put to contest by the respondent, again with the assertion that the premises, of godown, were in his possession and that the same had not been let out to Mukesh and that there were no such subsequent events wherefor his requirements could be said to have come to an end.
The learned Appellate Tribunal proceeded to consider the application now moved by the petitioner by the impugned order dated 20.03.2009 (Annex.17) and referred to the material portion of the order dated 24.09.2008 (as reproduced hereinabove); and further referred to the decisions cited; and observed that the facts sought to be asserted by way of the said additional affidavits were to the same effect as were contained in the earlier application under Order VI Rule 17 CPC that was rejected on 24.09.2008. The learned Appellate Tribunal was of opinion that granting of this application would be practically putting at naught the earlier order dated 24.09.2008 though the said order has been maintained; and 9 carried the effect of res judicata for the purpose of the present case. The learned Appellate Tribunal also observed that as per Commissioner's report, the godown had not been found to have been let to Mukesh; and there was no justification in filing any additional affidavit. The Appellate Tribunal proceeded to reject the application moved by the petitioner with the following observations:-
"स ष ह क श थ- त वल2 म हममद एव र चनद म व ह2 तथय वरण6त ह9, ज Bव6 म आदश 6 तनयम 17 भसववल पक[य सदहत आवदन म ददए गए थ और जजनह इस अ ल क र य अधध रण न ददन 24.9.08 असव र र ददय थ । ऐस ह न स यदद य श थ- त अभ लख र भलए ज त ह9, त उक म ररत आदश सवत: ह2 अ सत ह ज एग , ज य6 अब नह2 क य ज स त ह।
ऐस रन आदश दर7 यग ह। इस आदश
यम रहत ह7ए वत6म न आवदन ददय ज न
रसजयकB J ट भसद नत स वजज6त ह और जब
क र यद र जव ब म श तवत= घटन समबनध
अभ वचन अ व ह, त इस समबनध म ई
अततररक स कय श थ- त र म अथव इस समबनध
म ई दल2ल नह2 दख ज स त ह9। कफर यह य
गय ह क रर ट6 भमशर अन7स र ग द म क स म7 श
क र य र ददय ह2 नह2 गय ह। ऐस म ज
श तवत= घटन भलए आध र बन य गय ह, वह
अजसततव म ह2 नह2 ह, त कफर इस समबनध म अततररक
श थ- त दन ई औधचतय नह2 रह गय ह। इस
दवष स य श थ- त उधचत नय य तनण6य भलए
असगत प ट ह7ए ह9। अत: य अन वशय ह9 और इनह
अभ लख र भलए ज न अन7मतत नह2 द2 ज स त ह।
13. तदनस7 र क र यद र वल2 म हममद यह आवदन
असव र क य ज त ह।"
The learned counsel for the petitioner, while placing strong reliance on the Division Bench decision of this Court in Dwarka Prasad's case (supra) and another decision of this Court in the case of Phool Chand Vs. The Appellate Rent 10 Tribunal, Bikaner & others: 2008 (3) RLW 2670 submitted that the Appellate Rent Tribunal had been fundamentally in error and has acted wholly illegally in rejecting the application moved by the petitioner with reference to the order earlier passed on 24.09.2008 in rejection of the application under Order VI Rule 17 CPC. Learned counsel submitted that as per the observations of the Hon'ble Division Bench in Dwarka Prasad's case (supra), the application under Order VI Rule 17 CPC was not even maintainable and further according to the very observations as made in the said decision, the petitioner was at liberty to move an application for adducing additional evidence and hence, sought permission to withdraw his challenge to the order dated 24.09.2008 in CWP No.7805/2008 while seeking liberty to move the application for filing additional affidavit; and this Court had been pleased to grant the liberty prayed for. Learned counsel submitted that in view of the order passed by this Court in the earlier writ petition; and so also for the observations as made in Dwarka Prasad's case (supra) and Phool Chand's case (supra), the application as moved by the petitioner under Section19(9) of the Act of 2001 was very much competent and ought to have been allowed. Learned counsel submitted that subsequent events do have a direct co-relation with and bearing upon the 11 subject matter of dispute and show that the requirement as suggested by the landlord is neither reasonable nor bona fide nor even exists and hence, such additional affidavits ought to have been taken on record. The learned counsel further submitted that on one hand the learned Appellate Rent Tribunal has taken on record the relevant photographs by its order dated 24.09.2008 (Annex.10) but on the other hand, has unnecessarily and rather strangely refused to take the averments in that regard on record. It is submitted that once the said photographs have been taken on record, it was, as a necessary corollary, required of the Appellate Tribunal to have taken the affidavits concerning the facts on record.
Having given a thoughtful consideration to the submissions as made by the learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any jurisdictional error leading to manifest injustice in the order dated 20.03.2009 (Annex.17); and is unable to find any reason to entertain this writ petition.
The contentions as sought to be urged with reference to the decisions in Dwarka Prasad's case (supra) and Phool Chand's case (supra) could only be considered misplaced so far the facts of the present case are concerned for the fundamental reason that the suggestions about the so-called 12 subsequent events have already been dealt with and pronounced upon by the learned Appellate Tribunal in its order dated 24.09.2008 (Annex.11), relevant part whereof has been reproduced above. The learned Appellate Tribunal appears to be justified in rejecting the application as now moved by the petitioner by its order dated 20.03.2009 while observing that in the face of the findings as recorded in the earlier order dated 24.09.2008 (Annex.11), such an application could not be granted. It had precisely been the finding in the order dated 24.09.2008 that the alleged events were not of such subsequent events that the requirement of the landlord stood eclipsed altogether. Such a finding, so far the Appellate Tribunal and the appeal before it is concerned, has already been rendered and then, has become final with the petitioner withdrawing his challenge to the same before this Court.
The findings in the order dated 24.09.2008 (Annex.11) had been recorded after hearing both the parties and it is apparent from the order dated 17.02.2009 as passed in CWP No.7805/2008 that the writ petition in challenge to the order dated 24.09.2008 (Annex.11) was sought to be and was permitted to be withdrawn by the petitioner. It was the choice of the petitioner that he did not proceed with the said CWP No.7805/2008, may be with reference to the Division Bench 13 decision of this Court in Dwarka Prasad's case but, in any case, the order as passed in the said writ petition, at the request of the petitioner, does not carry the effect of removing or even diluting the rigor of the findings as already recorded in the order dated 24.09.2008. On the contrary, with dismissal of the writ petition as withdrawn, the findings in the order dated 24.09.2008 (Annex.11), so far the Appellate Tribunal is concerned, stand final.
This Court, while permitting the petitioner to withdraw the said writ petition, only observed that the Court concerned could decide the application if moved to the extent of taking the additional affidavits on record. The Appellate Tribunal has decided the application thereafter moved; and, in the opinion of this Court, has rightly rejected the same because the fundamental finding earlier recorded that suggested events do not put an end to the professed requirement has become final so far the said appeal is concerned. In the fact situation of the present case, the observations as made in Dwarka Prasad's case (supra) and Phool Chand's case (supra) are not of any assistance to the petitioner.
It is noticed that in paragraph-22 (d) of this writ petition, the petitioner, while contending that the Appellate Tribunal has committed illegality in treating the order dated 24.09.2008 in 14 dismissing the application filed under Order VI Rule 17 CPC as res judicata, has suggested that the said earlier application was dismissed while observing that the provisions of Order VI Rule 17 CPC are not applicable to the appellate proceedings. Such averments are not of correct projection of the contents of the order dated 24.09.2008 (Annex.11). In fact, the Appellate Tribunal in his earlier order dated 24.09.2008 (Annex.11) had observed that for these proceedings, particular provisions of Order VI Rule 17 CPC were not required to be looked at; and, at the same time, had also observed that it has the jurisdiction to grant the amendment of pleading at any stage in keeping with principles of natural justice. It is, thus, not correct to suggest that the application under Order VI Rule 17 CPC had been rejected as not maintainable. The said application was rejected on merits and not on competence.
The petitioner would suggest with reference to the decisions aforesaid that the application under Order VI Rule 17 CPC was not maintainable and hence, the decision thereupon would not operate as res judicata. The submission cannot be countenanced in view of the fact situation of the present case, when the said application was dealt with as maintainable and then was rejected on merits. Without much dilatation on this aspect, suffice is to observe that so far the 15 parties to the litigation are concerned, a decision would operate as res judicata if the elements relevant for applicability of res judicata exist; and correctness or otherwise of such a decision has hardly any relevance so far applicability of the principles of res judicata is concerned. In the given fact situation, the learned Appellate Tribunal cannot be faulted in taking the order dated 24.09.2008 (Annex.11) as res judicata for the purpose of the application as moved by the petitioner purportedly under Section 19(9) of the Act of 2001. The application as moved by the petitioner has rightly been rejected and there appears no reason to consider any interference in the writ jurisdiction in this matter.
The fact that the Appellate Rent Tribunal has taken the photographs on record is hardly of any bearing so far the prayer for filing of additional affidavits is concerned. As to what particular evidence is considered relevant and necessary for arriving at just decision and for effectual determination of the real questions in controversy is fundamentally for the Court dealing with the matter to consider. If photographs and the Commissioner's report have been taken on record, the petitioner could make submissions in that regard in appeal but, for that matter, there seems no necessity of filing of additional 16 affidavit; and in the present case, rejection of such a prayer by the Appellate Tribunal does not appear suffering from any jurisdictional error.
Having considered the matter in its totality, this Court is unable to find any fundamental jurisdictional error leading to manifest injustice so as to call for interference under Article 227 of the Constitution of India.
The writ petition fails and is, therefore, rejected.
(DINESH MAHESHWARI), J.
MK