Rajasthan High Court - Jodhpur
Bhupender vs Smt. Prabha & Anr on 5 July, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S. B. Civil Writ Petition No. 3090 / 2012
Bhupender S/o Jugrajji, by caste Mehta Oswal, aged 40 years, R/o
Shop No. 5, Kothari Building, Lakhra Bazar, Jodhpur
----Petitioner
Versus
1. Smt. Prabha W/o Shri Virendra Kothari,
2. Shri Virendra Kothari S/o Mangilalji,
by caste Kothari Oswal, R/o Kothari Building, Lakhra Bazar,
Jodhpur
----Respondents
_____________________________________________________
For Petitioner : Mr. Arpit Bhoot
For Respondents : Mr. Narendra Thanvi
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Judgment / Order 05/07/2017 This is petition under Article 227 of the Constitution of India for setting aside the Order & Judgment dated 30.03.2012 vide which the Appellate Rent Tribunal, Jodhpur dismissed the appeal filed by the petitioner-tenant against the Judgment & Decree of eviction dated 22.01.2011 passed by the Rent Control Tribunal, Jodhpur against the petitioner-tenant from the disputed premises.
An eviction petition was filed by the respondents-plaintiffs on the ground of reasonable and bonafide necessity of the suit premises and defaulter as well as for revision of rent to the tune of Rs. 1,750/-. The petitioner-tenant filed his written statement (2 of 11) [CW-3090/2012] but subsequently, chose not to appear before the Rent Tribunal and eviction decree and judgment was passed on 22.01.2011. The petitioner-tenant filed appeal against the decree of eviction along with an application under Section 5 and 14 of the Limitation Act, which too was dismissed vide Order and Judgment dated 30.03.2012. The appeal was dismissed both on the ground of limitation and merit.
While praying for setting aside the orders and judgments impugned, learned counsel for the petitioner-tenant raised the following arguments :-
A. The decree could not have been passed as the respondents-plaintiffs, namely, Smt. Prabha and Virendra Kothari are not landlords. The petitioner- tenant had specifically pleaded in his written statement that Narpat Singh Kothari was the landlord. The finding that the shop fell in the share of the respondents- plaintiffs on account of a family settlement entered into in the year 2004 as mentioned in the rejoinder is incorrect and false on the face of it in view of the document Ex.5A which is a gift-deed executed by the respondent-plaintiff No. 2 - Virendra Kothari in favour of his wife respondent-plaintiff No. 1- Smt. Prabha. In this gift-deed, the family settlement is of the year 1972. B. The Courts should have taken into consideration the written statement filed by the petitioner-tenant. The judgment is without application of mind and the provisions laid down in Section 9 of the Act of 2001 (3 of 11) [CW-3090/2012] have not been complied with. A decree could not have been passed just because no evidence was led in defence. The issues were required to be proved by the respondents-plaintiffs. The same has not been done. It was incumbent upon the Court to record the satisfaction on the basis of the evidence, if any, led by the respondents-plaintiffs that the premises were required for personal necessity even if, the petitioner had not led any evidence or cross-examined the respondents- plaintiffs. The written statement and the documents on record were sufficient to dismiss the eviction petition filed by the respondents-landlord, which have not been considered. Reliance was placed on the judgment rendered by the Apex Court in the case of Kempaiah Vs. Lingaiah and others reported in (2001) 8 Supreme Court Cases 718 to contend that even if the tenant does not contest or dispute the claim of the landlord and the tenancy is governed by the rent control legislation, the Court is obliged to look into the claim independently and give a specific finding in that regard.
The judgment rendered by the Apex Court in the case of Roshan Lal Vs. Madan Lal and others reported in 1975 (2) SCC 785 was also referred to contend that the Court cannot pass a decree of eviction even in a case of compromise, in case, the said compromise is in violation of the requirement of law. C. Both the tribunals below erred in holding that the (4 of 11) [CW-3090/2012] written statement was required to be filed in accordance with Schedule-A of the Rajasthan Rent Control Act, 2001. The Schedule-A applies only to a petition or appeal. Section 22 of the Act of 2001 requires a form to be submitted as per the Schedule-A only in case of a petition or appeal and does not apply to a written statement.
D. The Appellate Rent Tribunal could not dismiss the appeal on merit once it was being dismissed on the ground of limitation. Reliance was pleaded on the judgments rendered by the Apex Court in the case of S. Ganesharaju (Dead) through LR's and another Vs. Narasamma (Dead) through LR's and others reported in (2013) 11 Supreme Court Cases 341 as well as Devi Das Vs. Mohan Lal reported in AIR 1982 Supreme Court 1213 to drive home the point that merits cannot be touched in case, the delay has not been condoned. Reliance was also placed on the judgment rendered in the case of S.V. Matha Prasad Vs. Lalchand Meghraj and others reported in (2007) 14 Supreme Court Cases 772 as well as Shyamal kanti Danda Vs. Chunilal Choudhary reported in AIR 1984 Supreme Court 1732 on the same point.
The petitioner also moved an application for taking additional pleadings and the documents on record, which was allowed vide Order dated 26.11.2014.
Learned counsel for the parties were heard at length.
(5 of 11) [CW-3090/2012] Admittedly, the petitioner-tenant disappeared after filing the written statement. No evidence was led by him and nor the witnesses produced by the landlord-respondents were cross- examined.
There is no dispute with respect to the law laid down that the Rent Tribunal shall not order for eviction of the tenant unless it is satisfied as to the correctness of the averments or the pleadings. It is also well acknowledged that assertion is not proof and the burden lies on the plaintiff to prove that the suit property was required for personal necessity even if, no written statement is filed or no evidence is led. The Courts are required to examine the documents and take evidence and must be satisfied that the plaintiffs' case is unimpeachable before passing an uncontested decree. Thus, the only issue which this Court presently requires to see is whether the needful has been done in the facts and circumstances of the present case or not.
The Apex Court in the case of Balraj Taneja Vs. Sunil Madan reported in (1999) 8 SCC 396 while dealing with a situation where not even a written statement had been filed held in Para 29 of the judgment as under :-
"29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a (6 of 11) [CW-3090/2012] judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8".
In the present case, the written statement has been filed, although, the same was neither verified nor supported by an affidavit. In spite of the same, the Rent Control Tribunal duly proceeded to record the evidence led by the respondents-plaintiffs in support of the averments in the eviction petition, which is as under :-
Affidavit of Virendra Kothari Affidavit of Narpat Singh Kothari Affidavit of Sawai Singh Kothari Ex.1 Notice Ex.2 Receipt of notice Ex.3 Reply to the notice Ex.4 Certificate of Registration Ex.5 Gift-deed Ex.6 Petition by Sawai Singh against Virendra Kothari The petitioner-tenant did not move any application seeking cross-examination of the witnesses of the plaintiffs-respondents. To say that the Tribunals below did not apply its judicial mind and (7 of 11) [CW-3090/2012] did not discharge its duty in accordance with the provisions of the Rent Control Act is not justified. The following issues were framed :-
"1- D;k vizkFkhZ }kjk izkFkhZx.k dks fookfnr fdjk;slqnk ifjlj dk pkj ekg ls vf/kd dh vof/k dk 'kks/; fdjk;k vnk ugha dj fdjk;k vnk;xh esa pwd dh gS \ 2- D;k izkFkhZx.k dks izkFkhZ la[;k 2 ds O;olk; ds fy;s fookfnr fdjk;slqnk ifjlj dh ;qfä;qä ,oa lnHkkfod vko';drk gS \ 3- D;k izkFkhZx.k fdjk;k iqujhf{kr djokdj izkIr djus ds vf/kdkjh gS \"
It was only after going through the averments and the evidence in the form of documents and the oral evidence produced by the petitioner-tenant that the Rent Tribunal below decided the Issue No. 1 against the respondents-plaintiffs and Issue No. 2 with respect to the requirement of the premises for personal necessity in favour of the respondents-plaintiffs. In case, the said judgments had been passed without application of mind and without taking into consideration the evidence, the Issue No. 1 was also liable to be decided in favour of the respondents-plaintiffs as the evidence produced by the respondents-plaintiffs was unrebutted. This Court has, therefore, no hesitation in holding that the said orders and judgments have been passed in accordance with the settled proposition of law as also Section 9 of the Rent Control Act, 2001 by deciding the issues after taking into consideration the evidence on record. In any case, there was no reason for the Rent Control Tribunal and the Appellate Rent Tribunal to disbelieve the averments of the respondents-plaintiffs that the said premises was required for the personal necessity as (8 of 11) [CW-3090/2012] the law is well settled that the landlord is the best judge of his need. Hence, this Court does not deem it proper to exercise its jurisdiction under Article 227 of the Constitution of India to interfere in the correctness of the findings on fact that the premises were required for personal and bonafide necessity.
With respect to the argument that the plaintiffs-respondent Nos. 1 and 2 are not landlord, it is evident that the petitioner- tenant knew all along that Narpat Singh Kothari was no more the landlord and that the shop in question had fallen to the share of the respondent-plaintiff No. 2 - Virendra Kothari who is the husband of the respondent-plaintiff No. 1 - Smt. Prabha, in pursuance to a family settlement. Thereafter, the respondent- plaintiff No. 2 transferred the shop in question to the respondent- plaintiff No. 1 who is his wife. If the submission of the learned counsel for the petitioner that written statement is not required to be verified or supported by an affidavit as Section 22 of the Act of 2001 is applicable only to a petition or appeal is accepted, the written statement itself, if read, is sufficient to falsify the very stand of the petitioner. Rather, the submissions in the written statement proves the case of the respondents-landlord that it is the respondent who is the landlord. In Para 7 of the written statement, Narpat Singh Kothari has been referred as 'erstwhile' landlord. Moreover, it was known to the petitioner-tenant that respondent-plaintiff Nos. 1 and 2 were the landlord as he made various efforts to give the rent to the respondents-plaintiffs. This fact is admitted by the petitioner-tenant in his written statement in the later part of the Para 7 itself. The detail of the cheques (9 of 11) [CW-3090/2012] issued in the name of the respondent-plaintiff No. 2 has been mentioned in the written statement itself. It is admitted in the written statement that the respondent-plaintiff No. 1 was the landlord and that the respondent-plaintiff No. 2 used to receive the rent. A perusal of Para 7 of the written statement itself is admission of the fact. The admission in the written statement itself is sufficient and no other proof was necessary to hold that it was the respondents-plaintiffs who are the landlord. Moreover, Narpat Singh Kothari, the erstwhile landlord who is the brother of the respondent-plaintiff No. 2, filed his affidavit in evidence and corroborated the same. He admitted that the shop in question fell to the share of the respondent-plaintiff No. 2 in pursuance to the family settlement. The petitioner-tenant knew this fact, hence, no such ground was raised by him either in the written statement or before the appellate tribunal. In fact, it has been raised for the first time before this Court and that too after almost two years of the filing the present writ petition by way of an application for taking additional pleadings and the documents on record. It is, therefore, apparent that the said application was moved only as a delaying tactic.
The vehement argument of the learned counsel for the petitioner-tenant that the date of the family settlement has been mentioned as 2004 in the rejoinder as well as affidavit of Narpat Singh Kothari, whereas, in the gift-deed, it is mentioned as 1972 should have been taken into consideration while disbelieving that the respondents-plaintiffs are not the landlord cannot be sustained in view of the admission by the petitioner-tenant in the written (10 of 11) [CW-3090/2012] statement itself. The said discrepancy in the date of the family settlement is rendered totally inconsequential in view of the admission by the petitioner-tenant in the written statement that the respondent-plaintiff No. 1 was the owner and the rent was being regularly paid in the form of the cheque to the respondent- plaintiff No. 2 who is the husband of the respondent-plaintiff No. 1 as also in view of the corroboration by Narpat Singh Kothari who was referred as 'the erstwhile landlord' by the petitioner-tenant himself in the written statement that the shop in question fell to the share of the respondent-plaintiff No. 2 who transferred it by gift-deed to the respondent-plaintiff No. 1.
The argument that the Courts could not have dismissed the case on merits after refusing to condone the delay does not help the petitioner in the present case. The eviction petition was decided on merit. The appeal was filed beyond the period of limitation. The appeal having been dismissed both on the ground of limitation and merit has not prejudiced the petitioner-tenant in any manner.
The argument that the appellate tribunal erred in not allowing the application under Section 5 and 14 of the Limitation Act as a fraud has been played upon the petitioner-tenant as his counsel had been regularly giving dates and there was no reason for the petitioner-tenant to disbelieve his counsel is falsified from the fact that although, the order of the Rent Control Tribunal dated 22.01.2011 was passed in the absence of Shri Mukesh Sharma, Advocate who was stated to be counsel for the petitioner-tenant, the petitioner-tenant did not have any grievance against Shri (11 of 11) [CW-3090/2012] Mukesh Sharma because the same counsel moved an application on behalf of the petitioner-tenant before the Executing Court seeking time for reply.
No other ground was raised.
In view of the above, the present writ petition is dismissed being devoid of merit.
(NIRMALJIT KAUR), J.
Inder/32