Rajasthan High Court - Jodhpur
Lrs Of Kamalchand Savan Sukha vs Sohanlal Jain on 16 December, 2021
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN,
JODHPUR
S.B. Civil Second Appeal No. 120/2021
1. Kamalchand Savan Sukha (since deceased) through LR's-
1/1 Lajwanti Devi W/o Late Sh. Kamalchand Savan Sukha, age
68 years.
1/2 Kusum D/o Late Sh. Kamalchand Savan Sukha, age 48
years.
1/3 Kuntal Jain S/o Late Sh. Kamalchand Savan Sukha, age 46
years.
1/4 Kavindra Jain S/o Late Sh. Kamalchand Savan Sukha, age
44 years.
1/5 Kirti Jain S/o Late Sh. Kamalchand Savan Sukha, age 42
years.
All residents of Ward No. 18, Suratgarh, Distt. Sriganganagar
----Defendant-appellants
Versus
Sohanlal Jain S/o Late Loonkaran Jain, R/o D-3 Daspa House,
Loco-shed Road, Jodhpur
For Defendant(s) : Mr. Manish Shishodia
Mr. Jaideep Singh Saluja
For Plaintiff(s) : Mr. S.L. Jain
Mr. Abhinav Jain
HON'BLE MR. JUSTICE SUDESH BANSAL
Order Judgment reserved on: 06/12/2021 Judgment pronounced on: December 16, 2021 This Civil Second Appeal under Section 100 CPC filed by the legal heirs of appellants-defendant-tenant (hereinafter 'the tenant') comes up challenging the judgment and decree dated 05.10.2021 by the learned Additional District Judge, Suratgarh, District Sriganganagar in Civil Appeal No. 17/2015 upholding and affirming the judgment and decree dated 27.10.2015 passed by the Civil Judge, Suratgarh in Civil Original Suit No.23/2013 decreeing the suit filed by the respondent-plaintiff-landlord (hereinafter 'the landlord') for eviction and mesne profits. (Downloaded on 16/12/2021 at 08:53:03 PM)
(2 of 13) [CSA-120/2021] Heard the learned counsel for the parties and perused the impugned judgment and decree passed by the Courts below.
The facts of the case The facts of the case as culled out from the record are that one Shop No.3 (measuring 10x23 sq. feet) situated at Jain Katla, Suratgarh of the respondent-landlord was let out to late Kamal Chand Savan Sukha @ Rs.1916/- per month and after his death, the shop is continuing in monthly tenancy of the present appellants.
The landlord issued a registered notice dated 09.03.2013 under Section 106 of the Transfer of Property Act ('TP Act herein after), terminating the tenancy of the respondent-tenant with effect from 31.03.2013, inter alia, alleging non-payment of rent and requirement of reconstruction of the shop as also the allegation of material alteration by the tenant. Then the landlord filed the civil suit for arrears of rent and eviction with the prayer for mesne profits @ 10,000/- per month before the Civil Judge, Suratgarh in the year 2013. At the time of filing the civil suit, the provisions of the Rajasthan Rent Control Act 2001 {herein after 'the Act of 2001'} was not in force in the municipal area of Suratgarh, therefore, this civil suit involving the provisions of the TP Act was maintainable.
The tenant-defendant filed written statement admitting his tenancy in the suit shop but denied the receipt of notice under the TP Act. It was contended that the defendants have deposited Rs.23,000 towards the due rent in the Bank account of the landlord on 27.09.2013 and said notice under the TP Act is misconceived. The claim of mesne profit Rs. 10,000/- per month was also denied and the civil suit was prayed to be dismissed. (Downloaded on 16/12/2021 at 08:53:03 PM)
(3 of 13) [CSA-120/2021] Five issues were framed, which are referred in the impugned judgment dated 27.05.2015. Both the parties led their respective evidence. After hearing the parties and considering evidence of both the parties, the Trial Court decided the issues No.1 and 2 in favour of the plaintiff-landlord and the issues No.3 and 4 against the defendant-tenant and accordingly passed decree for eviction against the tenant vide judgment dated 27.05.2015 and directed to hand over the vacant possession of the rented shop to the landlord as also to pay the arrear of due rent and continue to pay mesne profit @ Rs.3,000/- per month from April, 2013 onwards until delivery of the possession.
The trial court has recorded findings of fact that the tenancy between the parties was month-to-month and has been terminated by giving registered notice under Section 106 of the TP Act (Exhibits 1 and 2). In his statements, the tenant admitted that the address mentioned on the notice under Section 106 of TP Act was correct, therefore, the trial court drew presumption of service of the notice sent by registered post.
First Appeal there-against filed by the tenant was also dismissed by the appellate court vide judgment dated 05.10.2021. Hence this second appeal.
Learned counsel for the appellants- tenant submitted that the eviction decree passed by the civil court on 27.05.2015 is without jurisdiction as the Rent Control Act, 2001 was extended to the municipal area of Suratgarh vide Notification dated 11.07.2014 with effect from 11.05.2015 and therefore, jurisdiction of civil court stood ceased to pass the eviction decree on 27.05.2015. To substantiate his arguments, reliance has been (Downloaded on 16/12/2021 at 08:53:03 PM) (4 of 13) [CSA-120/2021] placed on the judgment in the case of K. Ramnarayan Khandelwal v. Pukhraj Banthiya [2017(4) DNJ (Raj.) 1688].
The Division Bench of this Court in K. Ramnarayan Vs Pukhraj: D.B. Civil Reference No.01/2015 (decided on 26.10.2017) answered the Reference in following terms:
"44. The reference is accordingly answered in terms of paras 31 and 43 above. Meaning thereby, once the Rajasthan Rent Control Act 2001 was extended to the municipal areas, the Civil Courts would lose jurisdiction to adjudicate a dispute between a landlord and a tenant. No tenant could be evicted by a Civil Court. The eviction had to be as per the Rajasthan Rent Control Act 2001 and on the grounds specified in Section 9 thereof. Even where decrees of ejectment had been passed by the Civil Courts and matters were pending consideration in appeal, the civil proceedings would lapse."
The aforesaid view and proposition, answered in K. Ramnarayan's case (supra), was put to challenge before the Hon'ble Supreme Court by way of a Petition for Special Leave to Appeal No.1551/2018: Pukhraj Vs K. Ramnarayan, wherein the Supreme Court entertained the SLP and stayed operation of the order dated 26.10.2017 passed by the Division Bench of this Court in aforesaid D.B. Civil Reference No.01/2015. The order passed by the Hon'ble Supreme Court in the aforesaid SLP on 05.03.2018 reads as under:
"Until further orders, there shall be stay of the operation of the order dated 26.10.2017 passed by the High Court of Judicature for Rajasthan at Jaipur in D.B. Civil Reference No.1 of 2015."
The counsel for the appellants-tenant contends that though the operation of the judgment dated 26.10.2017 passed in K. (Downloaded on 16/12/2021 at 08:53:03 PM) (5 of 13) [CSA-120/2021] Ramnarayan (DB Civil Reference No.01/2015) has been stayed by the Hon'ble Supreme Court vide order dated 05.03.2018 passed in a Petition for Special Leave to Appeal No.1551/2018 but the same is only an interim order and that too passed without assigning the reason and the judgment dated 26.10.2017 has not been quashed and set aside so far, therefore, the High Court is not bound to follow the order dated 05.03.2018 as a ratio of law. Much reliance has been placed on (1992) 1 SCC 489: State of Punjab Vs Surinder Kumar & others in support of such contention.
On the other hand, learned counsel for the landlord argued that once the Hon'ble Supreme Court has stayed the operation of Reference order dated 26.10.2017 in explicit terms, the same does not hold the field now. The eviction suit filed under the TP Act was maintainable at the time of its institution and the civil court, after full dressed trial, has passed the decree for eviction, which is well within the jurisdiction of law and as such deserves to be sustained.
Heard both the counsel for the landlord and the tenant. It is not in dispute that at the time of filing the civil suit for ejectment against the tenant, purportedly after termination of his tenancy under Section 106 of the TP Act, the provisions of the Rajasthan Rent Control Act 2001 were not in force in Suratgarh; however, the State Government vide notification dated 11.07.2014 extended the provisions of the Rajasthan Rent Control Act 2001 to the municipal area of Suratgarh also with effect from 11.05.2015. The civil court passed the decree for eviction and mesne profits thereafter on 27.05.2015, which has been affirmed by the first appellate court on 05.10.2021.
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(6 of 13) [CSA-120/2021] This Court is of the opinion that once the Supreme Court has stayed the operation of the order dated 26.10.2017 which is a view of the Division Bench while answering a question in Reference petition, there is no justification to accept the arguments of the counsel for the tenant, that the view propounded by the Division Bench in the Reference order dated 26.10.2017 should be deemed to be operative and be followed, as the order has not yet been quashed and only its operation is stayed.
The two co-ordinate Benches of Rajasthan High Court also adopted the same view taken by this Court herein above. The Rajasthan High Court in other two cases viz. SBCWP No.2430/2021: Shankerlal Nadani Vs Sohan Lal Jain and SBCWP No.16681/2019: Mohd Rafiq Vs Hanuman Sahai & others, while following the order dated 05.03.2018 passed by the Hon'ble Supreme Court in SLP, did not agree with the contention that the order dated 26.10.2017 passed in the Reference case is still in force despite staying its operation by the Supreme Court. In Mohd Rafiq Vs Hanuman Sahai etc (supra), the Court observed as follows:
"4. This Court finds that the original judgment passed by this Court in K. Ramnarayan Vs. Shri Pukhraj in DB Civil Ref No.1/2015 holding that the cases under the TP Act cannot be allowed to continue has been stayed by the Supreme Court in Pukhraj Vs. K. Ramnarayan in SLP No.1551/2018.
5. In view of the stay passed by the Supreme Court, the trial Court would continue to have jurisdiction to decide the case under the Transfer of Property Act as it existed and the new Rent Control Act would have no (Downloaded on 16/12/2021 at 08:53:03 PM) (7 of 13) [CSA-120/2021] application as the view taken by this Court has already been stayed by the Supreme Court."
As far as the judgment in Surinder Kumar's case (supra) relied upon by the counsel for the tenant is concerned, same does not support his argument that since the order of the Supreme Court dated 05.03.2018 is an interim order, passed without assigning any reasons, therefore, the order on the Reference passed by the Division Bench of the High Court on 26.10.2017 be treated as alive and operative and the order of the Hon'ble Supreme Court be not treated as binding.
In fact, in Surinder Kumar's case, the Director, Education Department of the State of Punjab issued certain instructions in the year 1990 and the respondents therein were offered post of part-time Lecturer on specific condition that he could be relieved at any time without notice and that the payment would be made as per the Note indicated therein on hourly basis. The respondents accepted the offers and were appointed accordingly. The respondents then filed a Civil Writ Petition, contending that they were entitled to be regularised as Lecturer on regular pay scale.
The High Court allowed the writ petition by a cryptic and un- reasoned order. The matter went to the Supreme Court. Before the Supreme Court, the order passed by the High Court was tried to be justified by saying that in several cases, the Supreme Court has issued direction for absorption of temporary and ad-hoc servants on permanent basis, that too without assigning any reason and therefore, if this could be done by the Supreme Court, it should be open to the High Court as well to allow a writ petition in similar terms. In that backdrop of facts, the Supreme Court observed:
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(8 of 13) [CSA-120/2021] "6. A decision is available as a precedent only if it decides a question of law. The respondents are, therefore, not entitled to rely upon an order of this Court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that for special grounds which must have been available to the temporary employees in those cases, they were entitled to the relief granted. Merely because grounds are not mentioned in a judgment of this Court, it cannot be understood to have been passed without an adequate legal basis therefor. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a court whose judgment is not subject to further appeal and other courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so.
7. There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Article 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge." Thus, the case of Surinder Kumar (supra) is not applicable to this Second Appeal arising out of a dispute between a landlord and tenant and does not extend any support to the appellant. (Downloaded on 16/12/2021 at 08:53:03 PM)
(9 of 13) [CSA-120/2021] The issue can be examined from another angle also. The tenant does not dispute that at the time of institution of the eviction suit, the civil court had the jurisdiction to entertain and decide the eviction suit by applying the provisions of the TP Act. It is also not disputed that the tenant participated in the trial of the civil suit and got fullest opportunity to contest the eviction suit and further, full dressed trial has been completed.
It is only at the fag end of trial or just before passing of the judgment, the State Government issued notification dated 11.07.2014 and provisions of the Act of 2001 came in force with effect from 11.05.2015 in the municipal area of Suratgarh where the rented shop is situated. Thus, when in the present case entire proceedings of eviction has already been completed before the civil court following the provisions of the TP Act, then it would be unjust and improper to treat all such proceedings of the civil court as nullity and without jurisdiction and to expect from the landlord to initiate fresh proceedings for eviction following the provisions of the Act of 2001 before the Rent Tribunal. This would cause immense hardship to the landlord and give undue advantage to the tenant.
If such uncertainty in following the procedure of law is allowed to prevail, it would lead to a position of confusion and chaos to the landlords and the tenants whose premises are situated in those towns/municipal areas for which the notification for bringing the provisions of the Act of 2001 has not yet been passed by the State Government. Such situation of confusion and uncertainty should be avoided and a harmony has to be maintained for application of the provisions of the TP Act vis-a-vis provisions of the Act of 2001 on the rented premises. (Downloaded on 16/12/2021 at 08:53:03 PM)
(10 of 13) [CSA-120/2021] The balance has to be struck out and a pragmatic approach ought to be adopted, to give a finality to the adjudication of the dispute between the landlord and tenant. It is no more res integra that in all the municipal areas in the State of Rajasthan where the provisions of the Act of 2001 have not come in force, the disputes between landlord and tenant are being governed by the provisions of the TP Act. If in those municipal areas, after institution of the civil suit and commencement of the trial of the civil suit, the provisions of the Act of 2001 are extended by the State Government subsequently, all the eviction proceedings pending either at the trial stage or at the appellate stage, should be allowed to continue for adjudication, according to the provisions of the TP Act only, unless & until the notification of the State Government itself does not provide the applicability of the Act of 2001 with retrospective effect on the pending or decided proceedings or any other scheme of law is not provided to govern the pending proceedings by the provisions of the Act of 2001 only. In the opinion of this Court, for civil suits of eviction, which have been instituted before coming into force of the Act of 2001, the proceedings should be allowed to continue till culmination according to the TP Act. The law and procedure of the Act of 2001 may be allowed to be followed only for those eviction proceedings, which are filed after coming into force of the Act of 2001. The substantive provisions of the TP Act as applicable at the time of institution of the civil suit and commencement of the trial of the civil suit should continue to be applicable to such proceedings.
The order dated 05.03.2018 passed by the Hon'ble Supreme Court is well clear and gives a clear reflection that by staying the operation of the order dated 26.10.2017 passed by the Division (Downloaded on 16/12/2021 at 08:53:03 PM) (11 of 13) [CSA-120/2021] Bench in the Reference case of K. Ramnarayan (supra), same is not required to be given effect to and need not be followed further and thus, the pending or decided eviction proceedings under the provisions of the TP Act may continue despite coming into force of the Act of 2001.
In the judgment of Hon'ble Supreme Court in the case of Surinder Kumar (supra), relied upon by the appellant, it has clearly been observed that it is not imperative for the Supreme Court to assign reasons to justify its orders.
Therefore, it is hereby held that once the operation of the order dated 26.10.2017 delivered by the Division Bench in K. Ramnarayan's case has been stayed by the Hon'ble Apex Court in clear and explicit terms vide order dated 05.03.2018, the eviction decree passed by the civil court is treated within the jurisdiction and parameters of law, as such, the impugned decree for eviction deserves to be sustained.
Hon'ble Supreme Court in Nazir Mohamed Vs J. Kamala and others (Civil Appeal No.2843-2844 of 2010, decided on 27.08.2020) observed as follows:
"35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari:
(2001) 3 SCC 179.
36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the (Downloaded on 16/12/2021 at 08:53:03 PM) (12 of 13) [CSA-120/2021] appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam: AIR 1963 SC 302. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter."
The appellant is tenant since year 1972 and has already suffered decree for eviction under the law, as applicable at the time of filing of the eviction suit. Further the appellant-tenant has contested the civil suit and led his evidence. The tenant has accepted receipt of notice, terminating his tenancy. Both the courts have thoroughly discussed the evidence and consequently the judgments and decrees have been passed on cumulative effect of findings on issues. The appellant-tenant has got fullest opportunity to contest the civil suit and the First Appeal. Therefore, considering all the facts and circumstances, the eviction decree may not be kept in abeyance for uncertain period and deserves to be sustained, so as to put an end to this litigation between the landlord and the tenant, for a shop, lying in the tenancy of the appellant since the year 1972.
The findings of the courts below are well considered findings of fact on appreciation of evidence led before the trial court. There is not even a shadow of perversity in the said factual conclusions of the courts below.
No other substantial question of law is made out in respect of the conclusions of the courts below on the entitlement of the plaintiff for a decree of eviction. Absent any substantial question of law, a second appeal under Section 100 CPC is not maintainable.
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(13 of 13) [CSA-120/2021] Consequently, this second appeal is hereby dismissed. Stay application also stands dismissed.
In the interest of justice and looking to the old tenancy, the appellant-tenant is allowed three months' time to vacate and hand over peaceful possession of the rented shop to the respondent- landlord.
No order as to costs.
(SUDESH BANSAL),J SAHIL SONI-MMA/ (Downloaded on 16/12/2021 at 08:53:03 PM) Powered by TCPDF (www.tcpdf.org)