Rajasthan High Court - Jaipur
Babu Laxaman Das Chela Baba vs Rent Appellate Tribunal Ors on 17 April, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Baba Laxman Das Vs. The Rent Appellate Tribunal, Alwar & Others (S.B. Civil Writ Petition No.2230/2012) S. B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India. Date of Order: April 17, 2013. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. Banwari Sharma, for the petitioner. Mr. Raunak Singhvi, for respondents. BY THE COURT:
This writ petition has been filed by the petitioner challenging the order dated 1-4-2011 passed by the Rent Appellate Tribunal, Alwar (hereinafter `the Appellate Tribunal') setting aside and quashing the judgment and certificate of possession dated 12-8-2009 passed by the Rent Tribunal Alwar (hereinafter `the Tribunal') in favour of the applicant landlord, now the petitioner (hereinafter `the landlord').
The facts of the case are that the landlord filed an eviction petition under Section 9 of the Rajasthan Rent Control Act, 2001 (hereinafter `2001 Act') on the ground of default covered under section 9(a) of the 2001 Act. In the said application it was inter alia contended that the premises in question, description of which was given in para No.3 of the application, was rented out to one Nathi Lal on a monthly rent of Rs.200/- and after the death of tenant Nathi Lal the tenanted premises was in possession and joint tenancy of one Madan Lal, another Rajkumar both sons of Nathi Lal and Natvar Lal grandson of Nathi Lal. It was averred that the monthly rent for the tenanted premises was last paid May, 2004 by deposit in the bank account of the landlord. It was averred that on the joint tenancy of the three aforesaid sons and grandson of original tenant Nathi Lal being in default for over four months, the applicant sent a registered notice to all the non-applicants (joint tenants) disclosing the bank details in which arrears of rent were to be deposited and albeit the notice had been delivered, yet arrear of rent has not been paid by the tenants as required under proviso to Section 9(a) of the 2001 Act. In these circumstances, it was prayed that an order of eviction of tenants, under joint tenancy having succeeded to erstwhile tenant Nathi Lal, be passed on the ground of default and certificate of possession be issued. The application was supported by an affidavit of the landlord. It appears that despite several opportunities reply to the eviction application was not filed by the tenants. The right to file reply to the eviction application was thus closed by the Rent Tribunal.
The landlord examined himself before the Tribunal in support of his case, and in documentary evidence a copy of the notice dated 28-2-2008 was produced as Exhibit-1, whereby the amount of outstanding rent for four months was demanded and particulars of bank account were given for payment of arrears of rent as prescribed under the Statute. Ex.2 filed by the landlord was receipt of post office dated 28-2-2008, where under registered notice was sent to tenants, and Ex.3 was the original A.D. evidencing the receipt of notice sent on 28-2-2008. The tenants aside of non filing of reply to eviction petition also did not produce any affidavit in opposition or documentary evidence in defence to controvert the case of the landlord.
After hearing arguments on the application for eviction, the learned Tribunal vide judgment dated 12-8-2009 allowed the eviction petition on ground of default in the payment of due rent in spite of notice and issued a certificate of possession. While issuing order of eviction and certificate of possession, the learned Tribunal categorically held that the tenants had failed to deposit the arrears of due rent in spite of notice, which was duly received by Pintu son of Madan Lal, one of the joint tenants, on 29-2-2008. The Tribunal further observed that from the aforesaid facts it was apparent that the tenants under joint tenancy in spite of receiving notice had failed to tender the amount of arrears of rent due, within thirty days of receipt of the notice and had such committed default of payment of rent for more than four months.
Aggrieved of the judgment and certificate of possession dated 12-8-2009, the tenants preferred an appeal before the Appellate Rent Tribunal. Vide order dated 1-4-2011, the Appellate Rent Tribunal was pleased to set aside the judgment and certificate of possession dated 12-8-2009 passed by the Rent Tribunal on the ground that provisos to Section 9(a) of the 2001 Act had not been satisfied, as even though service of the statutory notice dated 28-2-2008 on Madan Lal had been pleaded and proved, yet service of the statutory notice on other joint tenants Rajkumar and Natvar Lal had not been established. In these circumstances the landlord has approached this court.
Learned counsel for the landlord has submitted that the order dated 1-4-2011 passed by the Appellate Tribunal is liable to be quashed and set aside on the ground that the Appellate Tribunal failed to consider that the tenancy of Madan Lal, Rajkumar and Natvar Lal was a joint tenancy having devolved from the tenancy of Nathu Lal and there was no necessity to serve the notice dated 28-2-2008 on all the joint tenants, as notice on one of the joint tenants tantamounted to notice on all of them. Reliance has been placed on Harish Tandon Vs. Addl. District Magistrate, Allahabad UP [(1995) 1 SCC 537] and Sajjan Kumar Agrawal Vs. Rent Control Appellate Tribunal [2011 (3) RLW 2642 (Raj.)] to contend that successors of a tenant partake the character of joint tenants and tenancy partakes the character of joint indivisible tenancy and not a tenancy in common with separate tenancy accruing on devolution to each of the successors of the deceased tenant. It has been submitted that the legal position is that where there is a joint tenancy, notice on one of the tenants tantamounts to a notice to all. Counsel submits that the Appellate Tribunal has erred in upsetting the judgment and certificate of possession dated 12-8-2009 on the specious and misdirected ground that albeit Madan Lal, one of the joint tenants was served notice under Section 9(a) of the 2001, other joint tenants Rajkumar and Natvar Lal were not served. It is submitted that the impugned judgment dated 1-4-2011 passed by the Appellate Tribunal is thus liable to be quashed and set aside.
Counsel for respondents tenants submits that the order of the Appellate Tribunal is a well considered order with a specific finding that non applicants tenants Rajkumar and Natvar Lal also tenants were not served and the requirement of proviso to Section 9(a) of the 2001 Act was not satisfied entailing no ground of default in payment of rent being made out under Section 9(a) of the 2001 Act.
Heard learned counsel for the parties, and perused the judgments of the Tribunals below.
In the case of Harish Tandon (supra) the Hon'ble Supreme Court has held that after the death of the original tenant, his heirs will be deemed to be holding the premises as joint tenants, and for any breach of any of such tenants all the heirs of the original tenant have to suffer. In this view of the matter, notice on one of the tenants has been held/ deemed to be notice to all the joint tenants. This fundamental legal aspect of the matter was overlooked by the Appellate Tribunal in holding that in spite of admitted service of notice 28-2-2008 on Madan Lal, one of the three joint tenants notice not being served on Rajkumar and Natvar Lalthe other joint tenants in the joint tenancy was sufficient to dislocate the landlord's case. In my considered opinion, the judgment of the Appellate Tribunal dated 1-4-2011 is based on a complete misdirection in law with regard to the nature of the tenancy of the heirs of erstwhile tenant Nathi Lal. The Tribunal appears to have overlooked the distinction between a joint tenancy and tenancy in common and also the fact that the legal heirs of a tenant partake the character of joint tenants and not tenants in common.
Consequently, the impugned judgment dated 1-4-2011 passed by the Rent Appellate Tribunal, Alwar is quashed and set aside, and the judgment and certificate of possession dated 12-8-2009 passed by the Rent Tribunal Alwar in favour of the landlord is restored.
The writ petition stands allowed accordingly.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.