Rajasthan High Court - Jaipur
Mukesh Saran S/O Shri Ratan Prakash ... vs Smt. Veena Meel W/O Banwari Lal on 5 August, 2020
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
(1 of 10) [CW-5163/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5163/2020
Mukesh Saran S/o Shri Ratan Prakash Darji, Resident of D-82
Indira Nagar, Jhunjhunu Tehsil, District Jhunjhunu, Proprietor
Vertex Competition Center, Jhunjhunu.
----Petitioner/Non-applicant
Versus
Smt. Veena Meel W/o Banwari Lal, aged about 65 Years,
Resident of B-172 Indira Nagar, Jhunjhunu Tehsil, District
Jhunjhunu.
----Respondent/Applicant
For Petitioner(s) : Mr. Mangal Chand Taylor, through
Video Conferencing
Mr. Rewar Mal Bairwa with
Mr. Rohitash Kumar Bairwa
For Respondent(s) : Mr. Dharmendra Pareek
Mr. Trilok Ray Goel
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
05/08/2020
This writ petition has been filed under Article 227 of the
Constitution of India against the order dated 10.01.2020 passed
by the learned Rent Tribunal, Jhunjhunu allowing the Eviction
Petition No.4/2016 filed by the respondent-applicant under Section
18 read with Section 21 of the Rajasthan Rent Control Act,2001
(for short "the Act of 2001") against the petitioner-non-applicant.
A preliminary objection as to maintainability of the writ
petition has been raised by the respondent inasmuch as, an
appeal lies under Section 19 of the Act of 2001 before the
Appellate Rent Tribunal against the order passed by the Rent
Tribunal.
(Downloaded on 10/08/2020 at 09:21:36 PM)
(2 of 10) [CW-5163/2020]
Replying the preliminary objection, it is contended by the
learned counsel for the petitioner that the respondent has filed
application before the learned Rent Tribunal, Jhunjhunu (Rent
Tribunal) under Section 18 and 21 of the Act of 2001 and hence,
relying upon the provisions of Section 19(7), he contended that
appeal is not maintainable before the Appellate Rent Tribunal and
the impugned order could have been assailed before this Court
under Article 227 of the Constitution of India only. He submitted
that appeal under Section 19 would lay only if the eviction order
has been passed by the learned Rent Tribunal under Section 9 of
the Act of 2001 and not otherwise.
Drawing attention of this Court towards Para ( ड) of the
application, learned counsel contended that the respondent has
relied upon termination of the tenancy vide notice dated
13.01.2016 to seek his eviction and has therefore, rightly and
correctly filed the application under Section 18 of the Act of 2001.
However, taking a somersault, the learned counsel for the
petitioner, in the same breath, referring to the relief prayed for in
the application whereby the respondent has sought his eviction,
contended that it was obligatory upon the respondent to have filed
the application under Section 9 instead of Section 18 of the Act of
2001. He further contended that no issue was framed by the
learned Rent Tribunal qua any of the grounds under Section 9 as
the respondent has filed application under Section 18 and hence,
the writ petition is competent as no appeal would lay by virtue of
Section 19(7) of the Act of 2001 against the order passed by
learned Rent Tribunal under Section 18 of the Act of 2001.
(Downloaded on 10/08/2020 at 09:21:36 PM)
(3 of 10) [CW-5163/2020]
Learned counsel for the petitioner has placed reliance upon
the judgments of Coordinate Benches of this Court in case of Uma
Shanker Vs. Seth Sugan Chand Charitable Trust: S.B. Civil
Revision Petition No.35/2011, decided on 26.08.2011 and in
case of Chittorgarh Grah Nirman Sahakari Samiti Ltd. Vs.
New India Assurance Co. Ltd & Ors.: S.B. Civil Writ Petition
No.65/2012, decided on 22.11.2013, in support of his
submissions.
Per contra, learned counsel appearing for the respondent
submitted that a perusal of the application filed by him seeking eviction of the petitioner, reveals that it was essentially under Section 9 of the Act of 2001 as the eviction was sought on the grounds of material alteration as well as reasonable and bonafide necessity of the suit premises by the landlord. He submitted that mere wrong mentioning of the provision would not change the nature of the application.
Learned counsel for the respondent has relied upon following judgments of this Court in support of his contention-
1. Rajendra Sharma Vs. Appellate Rent Tribunal, Sri Ganganagar & Ors: [2010 CJ (Rent Control) 476]
2. Santosh Boobna Vs. Ramavtar Kandoi & Anr.: [2019(1) CJ (Civ.) (Raj.) 135] He further contended that after the advent of the Act of 2001 and its applicability in the municipal area of Jhunjhunu, even otherwise also, it was not competent for the respondent to have sought eviction of the petitioner from the suit premises under Section 106 of the Transfer of Property Act, 1882 (for short 'the Act of 1882'). He contended that the learned Rent Tribunal has (Downloaded on 10/08/2020 at 09:21:36 PM) (4 of 10) [CW-5163/2020] issued the recovery certificate on the ground of reasonable and bonafide necessity and hence, the order dated 10.01.2020 could have been assailed by way of statutory appeal under Section 19 only and the writ petition is not maintainable.
Learned counsel for the respondent further contended that the application being under the Act of 2001, framing of issues was not mandatory. He relies upon judgment of a Coordinate Bench of this Court in case of Fakruddin Vs. Rent Tribunal Ajmer & Ors.: [2011 CJ (Rent Control) 60] in support of his contention.
Heard the learned counsel for the parties and perused the record. Following few facts and legal position are indisputed between the parties:
1. The rented premises is situated within Municipal Area, Jhunjhunu.
2. The provisions of the Act of 2001 were applicable in the Municipal Area, Jhunjhunu when the application seeking petitioner's eviction was filed.
3. The provisions of Section 9 of the Act of 2001 are applicable on the rented premises as it does not fall within the category of premises on which Chapters II and III do not apply as per Section
3 of the Act of 2001.
4. Where provisions of Chapter II and III of the Act of 2001 are applicable, eviction can only be sought under Section 9 and not under the provisions of the Act of 1882.
In view of the aforesaid admitted facts and legal position, it is apparent that the respondent could not have sought eviction of the petitioner under the provisions of the Act of 1882 and the only recourse available for him was under Section 9 of the Act of 2001. (Downloaded on 10/08/2020 at 09:21:36 PM)
(5 of 10) [CW-5163/2020] It is trite law that mere wrong mentioning of the statutory provision does not change the nature of the application. Its pith and substance has to be seen to adjudge its true nature.
A Coordinate Bench of this Court has, in case of Rajendra Sharma (supra), held as under-
"15. The objection was raised before the appellate Court that petition filed by the landlady is only under Section 6 of the Act of 2001 and is not under Section 9 whereunder landlord can seek eviction of tenant on the ground of personal necessity. The non- petitioner, who without said mentioning of Section 9 in the petition already got the order of eviction of tenant from the Tribunal faced with this objection, submitted an application under Order 6 Rule 17 C.P.C. The appellate Court allowed the said application filed under Order 6 Rule 17, C.P.C. At this stage also, it appears that tenant did not seek any further opportunity from the appellate Tribunal that he needs opportunity to file any additional pleas which obviously because of the reason that nothing has been changed in any of the part of the facts mentioned in the eviction application because of allowing amendment in petition but by amendment, the applicant landlady allowed only to insert the relevant section in the petition. At this stage, again it may be observed that non-mentioning of a particular section for which relief has been sought is immaterial when relief in fact has been sought. Therefore, even if the appellate Court would not have allowed the amendment in the original pleading of insertion of Section 9(i) it would not have effected the nature of the application nor it would have effected the relief which could have been claimed in the petition, but first appellate Court allowed the application for amendment of eviction petition, which was a futile exercise only."
Similarly, another coordinate Bench of this Court in Santosh Boobna (supra), has held as under:
"12. Mr. Pancham Surana adverted to the averments in para No.1 of the petition as also the ground (xviii) thereof which invoke Article 226 of the Constitution of India to submit that (Downloaded on 10/08/2020 at 09:21:36 PM) (6 of 10) [CW-5163/2020] such a petition against an order passed by the Civil Court is not maintainable. In making this overtly technical submission, Mr. Pancham Surana overlooks the fact that the caption of the petition invokes Article 227 not Article 226 of the Constitution of India. Besides, it is well settled that the caption of any proceeding/application is not determinative of its maintainability when with reference to another available provision, such proceeding/application is not maintainable. The Court thus cannot take a technical view of the matter and side step the substantive provision on which the petition can be held maintainable."
Therefore, it is held that the application was filed under Section 9 of the Act of 2001. Further, a perusal of the contents of para 9(iii) and 9 (iv) of the application reveals that eviction was sought on the grounds of material alteration as well as reasonable and bonafide necessity. The petitioner has, in his reply, taken specific objection that application seeking his eviction under Section 18 was not maintainable and it ought to have been under Section 9 of the Act of 2001. The learned Rent Tribunal has also, vide its order impugned dated 10.01.2020, granted recovery certificate on the ground of reasonable and bonafide necessity and not on the ground of termination of lease deed vide notice under Section 106 of the Act of 1882. Rather, in para 18 of the order, it has specifically been observed by the learned Rent Tribunal that from the tenor of the pleadings in the application, it was apparent that eviction has been sought under the provisions of the Act of 2001 and not under Section 106 of the Act of 1882. The learned Rent Tribunal has, while granting recovery certificate, fixed 10.3.2020 as date for the parties to appear before the Appellate Rent Tribunal under Section 17 of the Act of 2001. (Downloaded on 10/08/2020 at 09:21:36 PM)
(7 of 10) [CW-5163/2020] The aforesaid facts and circumstances, leave no room for doubt that the learned Rent Tribunal passed the order dated 10.01.2020 under Section 9 of the Act of 2001 and not under Section 106 of the Act of 1882.
Even otherwise also, contention of the learned counsel for the petitioner that appeal under Section 19, against the final order passed by the learned Rent Tribunal under Section 18, is not maintainable, is wholly misconceived. The sole basis for raising this plea by the learned counsel for the petitioner is Section 19(7) of the Act of 2001 which reads as under:
"(7) The Appellate Rent Tribunal, upon filing an appeal under sub-section (6), shall serve notice, accompanied by copy of appeal, on the respondent on the date fixed by the Rent Tribunal under section 17 for the appearance of the parties before it. If the respondent fails to appear on the date so fixed before the Appellate Rent Tribunal, he may be proceeded against ex-parte. In case the final order under section 17 was passed in ex-parte proceedings against any party, the Appellate Rent Tribunal shall issue notice, accompanied by copy of appeal, fixing a date not later than thirty days, requiring the respondent to appear before it on the date so fixed and service of such a notice shall be effected through process server of the Tribunal or Civil Court as well as by the registered post, acknowledgment due and notice duly served by any of these methods shall be treated as sufficient service. Where, however, the Appellate Rent Tribunal, otherwise considers it necessary so to do in the interest of justice in the facts of the case, it may issue notice of appeal to the respondent in the manner indicated above."
Section 17 of the Act of 2001 reads as under:
"Fixing of date of appearance of parties before Appellate Rent Tribunal and supply of copies of final order.-The Rent Tribunal while finally deciding a petition in which it is not proceeding ex-parte against any party shall fix a date, beyond [two month but not beyond six (Downloaded on 10/08/2020 at 09:21:36 PM) (8 of 10) [CW-5163/2020] months] of its decision, for the appearance of the parties to the petition before the Appellate Rent Tribunal to which appeal against its final order lies and the parties to the petition shall appear before such Appellate Rent Tribunal on such date to receive the notices of the appeal, if any, filed against the final order of the Rent Tribunal. The date so fixed shall be mentioned in the final order passed by the Rent Tribunal and copy of the final order shall, immediately after the pronouncement of the order, be delivered to the party against whom the same is made and if the final order is partly against one party and partly against other party and both the parties may prefer appeal against the final order, the copy of the final order shall be delivered to both the parties. The copy of the final order shall bear the endorsement under the seal of the Presiding Officer that the same is being supplied under this provision and party preferring an appeal may file such a copy alongwith his appeal."
Provisions of Section 17 are not confined to final order passed under Section 9 of the Act of 2001 only. It encompasses all kinds of final orders passed by the learned Rent Tribunal; be it under Section 6, Section 9, Section 10, Section 11 or Section 18. Model Form in Schedule C as per Section 22 of the Act of 2001 dispels iota of doubt in this regard, if any.
Merely because Section 17 precedes Section 18, it cannot be inferred that final order passed under Section 18 does not contemplate compliance of Section 17. It is settled principle of interpretation that a provision in a statute cannot be interpreted in isolation and its harmonious interpretation has to be taken in the light of other provisions in the statute.
So far as maintainability of the appeal under Section 19 against the final order passed by the Rent Tribunal under Section 18, is concerned, provisions of Section 19(6) very categorically provide as under:
"(6) From every final order passed by the Rent Tribunal, an appeal shall lie to the Appellate Rent Tribunal, within the local limits of whose (Downloaded on 10/08/2020 at 09:21:36 PM) (9 of 10) [CW-5163/2020] jurisdiction the premises is situated and such an appeal shall be filed within a period of [sixty days] from the date of final order alongwith copy of such final order."
There cannot be two opinions that any order passed by the Rent Tribunal deciding the petition under Section 18 of the Act of 2001 falls within the mischief of "Final Order" rendering it amenable to appeal under Section 19(6) of the Act of 2001.
Hence the contention of the learned counsel for the petitioner that the order impugned dated 10.01.2020 passed by the learned Rent Tribunal, being under Section 18 of the Act of 2001, is not amenable to appeal under Section 19, is devoid of merit and deserves to be rejected. This Court has no hesitation in holding that the final order passed by the Rent Tribunal under Section 18 is appealable under Section 19 before the Rent Tribunal.
The judgment of a coordinate Bench of this Court in case of Uma Shanker (supra) relied upon by the learned counsel for the petitioner emanates from a revision petition directed against the order rejecting application filed by the defendant under Order 7 Rule 11 C.P.C. in a suit for eviction. Learned counsel for the petitioner has completely failed to show as to how this judgment helps his case or is relevant to the present controversy.
Similarly, reliance placed by the learned counsel for the petitioner in case of Chittorgarh Grah Nirman Sahakari Samiti Ltd. (supra) is misplaced inasmuch as that was a writ petition arising out of the order passed by the learned Rent Appellate Tribunal under Section 9 of the Act of 2001.
(Downloaded on 10/08/2020 at 09:21:36 PM)
(10 of 10) [CW-5163/2020] So far as respective contention of the parties with regard to framing/non-framing issue qua any of the grounds mentioned in Section 9 of the Act of 2001, is concerned, this Court is not inclined to entertain the same in view of non-maintainability of the writ petition against the order dated 10.1.2020.
Resultantly, the writ petition is dismissed being not maintainable.
(MAHENDAR KUMAR GOYAL),J AARZOO ARORA /88 (Downloaded on 10/08/2020 at 09:21:36 PM) Powered by TCPDF (www.tcpdf.org)