Rajasthan High Court - Jaipur
Yashwant Goyal And Anr vs Jagdish Prasad Garg And Anr on 1 September, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R S.B. CIVIL WRIT PETITION NO.6887/2011 YASHWANT GOYAL & ANR. Vs. JAGDISH PRASAD GARG & ANR. DATE: 01.09.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. Vigyan Shah, for the petitioners.
Mr. Ajay Goyal, for the respondent No.1.
**** Heard learned counsel for the parties.
2. The matter has come up for orders on an application under Article 226(3) of the Constitution of India, filed by respondent No.1, for vacation of ad interim ex-parte stay order dated 23.05.2011, but at the request of learned counsel for the parties, arguments were heard and the writ petition is being disposed off, finally.
3. Petitioners/tenants have preferred this writ petition challenging the impugned order dated 31.01.2011 passed by the Rent Tribunal, Alwar (for short 'the Tribunal') in Application No.57/2008, whereby their application seeking permission to file reply to rejoinder has been dismissed.
4. Facts of the case, in brief, are that applicant/landlord/respondent No.1 Jagdish Prasad Garg filed an application under Section 9 of the Rajasthan Rent Control Act, 2001 for eviction against non-applicants/petitioners on the ground of personal bonafide necessity etc. before the Rent Tribunal, Alwar, wherein reply to application was filed, thereafter, applicant/ landlord filed rejoinder on 26.09.2008, issues were framed in the case on 13.10.2009, petitioner filed application seeking permission to file reply to rejoinder on 22.12.2009, which was dismissed by the Tribunal vide order dated 31.01.2011, which is under challenge in this writ petition.
5. Learned counsel for petitioners submitted that present application for eviction was filed on the ground of personal bonafide necessity, which was replied by the petitioner, thereafter respondent No.1 filed rejoinder, wherein some new facts were taken, therefore, it was necessary to file reply to rejoinder, which should have been allowed, but the learned Tribunal committed an illegality in rejecting the application of petitioners and passing the impugned order, which is liable to be set aside by this Court.
6. Learned counsel for respondent No.1 submitted that application of the petitioner cannot be said to be bonafide and the same was filed only to delay the eviction proceedings. He submitted that rejoinder was filed on 26.09.2008 and no immediate application was filed thereafter seeking permission to file reply to rejoinder, but it was filed after a delay of more than 15 months i.e. on 22.12.2009. He further submitted that he has not narrated any new fact in his rejoinder, but he only explained the ground of personal bonafide necessity in the rejoinder, therefore, the learned Tribunal was right in rejecting the application.
7. I have considered the submissions of the learned counsel for the parties and examined the impugned order and other documents placed on record with the writ petition.
8. The present application for eviction was filed in 2008, rejoinder was filed in the case on 26.09.2008, thereafter matter was adjourned from time to time, issues were framed in the case on 13.10.2009 and the present application was filed on 22.12.2009. The applicant filed his application for eviction for necessity of his son stating specifically that there is no other property except the rented property to start the business for his son, therefore, the same is required bonafidely. The non-applicants in their reply submitted that son of applicant is doing his business separately in his own name, therefore, necessity cannot be said to be bonafide. In rejoinder, the applicant explained that whatever business he is doing, he is suffering loses in the same, therefore, necessity pleaded in the case is bonafide.
9. It is relevant to mention that in case, any reply to rejoinder was necessary, then application should have been filed immediately, but for the reason best known to the non-applicants, the same was not filed for a period of more than 15 months, therefore, it appears that application was not bonafide, but it was filed only to delay the eviction proceedings.
10. Apart from above, I have also examined the impugned order passed by the Tribunal, which has specifically observed that no new plea has been taken in rejoinder, therefore, granting permission to file reply to rejoinder is not necessary. I do not find any illegality or perversity in the impugned order.
11. This Court while exercising its powers under Article 227 of the Constitution of India, cannot convert itself into a Court of appeal and this Court is required to see only the error apparent on the face of record or jurisdictional error in the impugned order.
12. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and another (AIR 1975 Supreme Court 1297), held the High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
13. The Hon'ble Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim (AIR 1984 Supreme Court 38), held that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal.
14. Hon'ble Apex Court in Surya Dev Rai Vs. Ram Chander Rai, (2003) 6 SCC 675, has held as under:-
The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
15. In view of above discussions, I do not find any merit in this writ petition and the same is, accordingly, dismissed with no order as to costs.
16. In view of above, application under Article 226(3) of the Constitution of India also stands disposed off.
(NARENDRA KUMAR JAIN-I),J.
/KKC/ IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R S.B.CIVIL MISC.STAY APPLICATION NO.6246/2011 IN S.B. CIVIL WRIT PETITION NO.6887/2011 YASHWANT GOYAL & ANR.
Vs. JAGDISH PRASAD GARG & ANR.
DATE: 01.09.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. Vigyan Shah, for the petitioners.
Mr. Ajay Goyal, for the respondent No.1.
**** Since the writ petition itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed.
(NARENDRA KUMAR JAIN-I),J.
/KKC/