Rajasthan High Court - Jodhpur
Surendra Barmecha vs Rajesh Nath & Anr on 2 March, 2017
Author: Sangeet Lodha
Bench: Sangeet Lodha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 14313 / 2015
Surendra Barmecha s/o Late Shri Bhanwarlal b/c Jain, r/o Pali
Bajar, Dhariwalo Ka Baas, Mahamandir, Jodhpur.
----Petitioner
Versus
1. Rajesh Nath s/o Late Shri Mohan Nath b/c Nath r/o Nathji Ka
Aasan, Mahamandir, Jodhpur.
2. Dilip Barmecha s/o Late Shri Shri Bhanwarlal b/c Jain, r/o Pali
Bajar, Dhariwalo Ka Baas, Mahamandir, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Devilal Vyas
For Respondent(s) : Mr. Ashok Chhangani
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
Order 02/03/2017
1. This petition is directed against order dated 21.9.15 of the Rent Tribunal, Jodhpur Metropolitan City, whereby an application preferred by the petitioner for taking the reply filed belatedly on record, stands rejected.
2. The facts relevant are that the respondent filed a petition under Section 9 of the Rajasthan Rent Control Act, 2001 ("the Act") seeking eviction of the petitioner from a commercial premises. The notice of the petition issued by the Rent Tribunal was served upon the petitioner on 9.8.12. The petitioner did not file the reply to the petition within the stipulated period of 45 days. However, the petitioner filed an application under Section 11 (2 of 8) [CW-14313/2015] r/w Section 151 CPC on 3.9.12 seeking rejection of the petition as barred by principle of res judicata. The application preferred as aforesaid was dismissed by the Rent Tribunal vide order dated 5.3.14. Thereafter, on 4.4.14, the petitioner made an application for taking the reply to the petition on record, which stands rejected by the Rent Tribunal by the order impugned. Hence this petition.
3. On 28.1.16, this Court while issuing notices to the respondent passed an interim order in favour of the petitioner in the following terms;
"In the meanwhile, if on the next date fixed before the trial court i.e. 03.03.2016, the petitioner pays a cost of Rs. 2,500/- to the respondent-landlord, the reply filed by the petitioner shall be taken on record.
In case, the respondent-landlord does not accepts the cost and wants to contest the present writ petition, further proceedings in Case No. 909/2012 pending before the Rent Tribunal, Jodhpur shall remain stayed.
It is further made clear that in case, on the next date, the petitioner fails to pay the cost as directed hereinbefore, no further opportunity shall be granted to the petitioner."
4. The respondent while not accepting the cost has chosen to contest the petition.
5. Learned counsel appearing for the petitioner contended that in the first instance the petitioner had preferred an application before the Rent Tribunal, under Section 11 r/w Section 151 CPC seeking rejection of the petition, which remained pending till 5.3.14 and therefore, the delay in filing the reply was absolutely bonafide. Learned counsel submitted that before the decision of the application filed seeking rejection of (3 of 8) [CW-14313/2015] the petition, it was not possible to file the reply to the petition and thus, on the facts and in the circumstances of the case, in the interest of justice, the reply to the petition filed belatedly deserves to be taken on record.
6. On the other hand, the counsel appearing for the respondent submitted that Section 15 of the Act mandates disposal of the rent petition within the time frame which needs to be adhered to strictly. Learned counsel submitted that as per provisions of sub-section (3) of Section 15, the tenant is under an obligation to file reply to the petition if any, within a period not exceeding 45 days from the date of receipt of the notice and thus, the order impugned passed by the Rent Tribunal in rejecting the application preferred for taking the reply to the petition on record, which was filed after a lapse of more than one and half years, does not suffer from any jurisdictional error. Learned counsel submitted that if the delay in filing the reply is condoned as a matter of course, the legislative intent in incorporating the provisions for disposal of the petition within the time frame shall stand frustrated. Learned counsel submitted that notwithstanding the pendency of the application preferred by the petitioner, nothing prevented him from filing the reply to the petition within the stipulated period. Accordingly, it is submitted that the order impugned does not warrant any interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
7. I have considered the rival submissions and perused the material on record.
(4 of 8) [CW-14313/2015]
8. Indisputably, the Act has been enacted inter-alia with an object to remove the feeling of insecurity among the landlords in getting the premises vacated and therefore, adequate provisions have been incorporated therein, to ensure the timely disposal of the petition seeking eviction of a tenant from the rented premises.
9. As per provisions of Section 15 of the Act, the Tribunal is under an obligation to dispose of the proceedings within the stipulated time frame. As mandated by sub-section (3) of Section 15, the tenant is under an obligation to file his reply, affidavits and documents after serving the copies of the same to the petitioner within a period of 45 days from the date of service of notice. The rejoinder, if any, is required to be filed by the opposite party within a period of 30 days from the date of service of the reply. The Rent Tribunal is required to dispose of the petition within a period of 240 days from the date of service of notice on the tenant.
10. Undoubtedly, the legislature in its wisdom has incorporated the provisions providing for time limits for different stages of the proceedings before the Rent Tribunal as also the maximum time to be taken for disposal of the proceedings. Obviously, the mandate of legislature in providing for disposal of the matter within the time frame shall stand defeated if the extension of time for completion of the proceedings at different stages is granted as a matter of course. For the parity of reasons, the miscellaneous applications filed before the Rent Tribunal by the (5 of 8) [CW-14313/2015] parties to the proceedings should not remain pending for a long and must be decided expeditiously.
11. But then, the question whether the outer limit of 45 days as prescribed by sub-section (3) of Section 15 of the Act for filing the reply by the tenant to the petition of eviction filed by landlord is mandatory or directory, came for consideration of a Bench of this court in the matter of "Ramesh Kumar vs. Chandu Lal & Anr.", AIR 2009 Rajasthan 87, wherein after due consideration, the court while comparing the provisions of Section 15(3) of the Act and Order VIII Rule 1 CPC and relying upon the various decisions of the Hon'ble Supreme Court, categorically held:
"13. A comparative reading of the provisions of Section 15(3)of the Act of 2001 and Order VIII Rule 1 of CPC reveals that both the provisions relate to the domain of procedural law and casts obligation on the defendant/respondent to file the written statement/reply within the specified period from the date of service of the summon/notice. Section 15(3) of the Act of 2001 provides that the tenant "may" submit his reply etc. within a period "not exceeding 45 days" from the date of service of notice, whereas as per Order VIII Rule 1 of CPC , the defendant "shall" present the written statement of his defence "within 30 days" from the date of service of summon and as per proviso thereto , he may be permitted to file the same even after expiry of period of 30 days for the reasons to be recorded by the court in writing but not later than 90 days from the date of service of summon. Thus, essentially both the provisions provide an outer time limit for filing the written statement/reply . Under Order VIII Rule 1 , discretion is vested with the court to allow filing of the written statement beyond the specified period of 30 days but, under the provisions of Section 15(3) , no such specific power is conferred upon the tribunal. But, the fact remains that none of these provision restrict the power of the court/tribunal to grant further time for filing the written statement/reply and to take the same on record in the interest of justice even after the expiry time limit prescribed. Likewise, both the provisions do not provide for the consequences to follow if the time schedule prescribed is not adhered to . Thus, it can be safely concluded that the provisions of Section 15(3) of the Act of 2001 is in substance pari materia to the provisions of Order VIII Rule 1 of CPC.
.....xxxxx...............xxxxx.
(6 of 8) [CW-14313/2015]
19. Thus, it is settled position of law that the law of procedure should not ordinarily be construed as mandatory inasmuch as, the object of providing procedure is to advance the cause of justice and not to defeat it. If a strict adherence to the procedure prescribed results in inconvenience or injustice then, the provision providing for such procedure has to be construed liberally so as to meet the ends of justice. As noticed above, the provision contained in sub-section (3) of Section 15 of the Act of 2001 is in substance pari materia to the provisions of Order VIII Rule 1 of CPC which has been held to be directory by the Hon'ble Supreme Court in the decisions referred supra. Thus, keeping in view the law laid down by the Hon'ble Supreme Court as aforesaid , in our considered opinion, for the parity of the reasons, the provisions of Section 15 (3) also deserves to be held directory in character and not mandatory.
20.It is true that the Act of 2001 prescribes the time frame for different stages of the proceedings so as to secure an early and expeditious disposal of the lis between the landlord and tenant but then, it is fundamental principle of natural justice that the defence of a party to the proceedings before all courts ,judicial bodies and constitutional authorities must always be fairly heard. Moreover, the procedure provided for the trial of the suit and miscellaneous proceedings for finding out the truth and impart the justice between the parties cannot be construed in a manner which results in cause of justice being defeated. However, the delaying tactics adopted by the erring party to the proceedings cannot be countenanced by the court and as laid down by the Hon'ble Supreme Court , time beyond the period specified cannot be extended by the court as a matter of course and the power to extend can be exercised by the court by way of an exception on the sufficient cause being shown by the party in default. But then, on the extension being granted, the other party has to be compensated by way of payment of cost for the delay and inconvenience caused." (emphasis supplied)
12. In the backdrop of position of law settled by the Bench of this court, adverting to the facts of the present case, it is not in dispute that the application preferred by the petitioner under Section 11 read with Section 151 CPC, seeking rejection of the plaint, remained pending consideration for a period of about one and half years. It is true that even during the pendency of the application, the petitioner could have filed reply to the petition (7 of 8) [CW-14313/2015] and on account of mere pendency of the application preferred, the tenant cannot be permitted to claim extension of time for filing the reply as a matter of right. But in the instant case, where the application preferred by the petitioner remained pending for one and half years and immediately after disposal of the application the reply to the petition has been filed, it is difficult to draw an inference that the reply to the petition was filed by the petitioner belatedly with an intention to protract the proceedings. In any case, on account of the petitioners not filing the reply within the stipulated time, the refusal of the Rent Tribunal in taking the reply on record and pendency of his petition before the court, has resulted in unnecessary delay in the expeditious disposal of the matter. Thus, on the facts and in the circumtances of the case, in the interest of justice, while permitting the reply of the petition being taken on record, this court is of the opinion that the respondents deserve to be compensated by payment of exemplary cost for the delay caused.
13. In the result, the petition is allowed. The order impugned passeed by the Rent Tribunal, refusing to take the reply to the petition filed on behalf of the petitioner on record, is set aside. The application preferred by the petitioner before the Rent Tribunal for taking reply on record is allowed. The reply filed by the petitioner is directed to be taken on record, subject to payment of cost Rs.10,000/- by the petitioner to the respondents. On the facts and in the circumstances of the case, since the disposal of the matter has already been delayed on account of non filing of the reply by the respondents within the stipulated period, (8 of 8) [CW-14313/2015] pendency of the application preferred by the petitioner before the Rent Tribunal for a long period and thereafter, on account of the pendency of the petition before this court, the Rent Tribunal is directed to dispose of the petition preferred by the respondents expeditiously, keeping in view the mandate of provisions of Section 15 of the Act.
(SANGEET LODHA)J. Aditya/