HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 67/2020
Sunder Rajpurohit S/o Bhopal Singh, R/o Hostel Campus Vidhyashram
School, Bajaj Nagar, Jaipur.
----Petitioner-Defendant
Versus
Raghuveer Singh S/o Laddu Singh, R/o 36 A, Krishna Vihar Extension,
Gopalpura Bypass, Jaipur, At Present 400 Surya Nagar, Gopalpura
Bypass, Jaipur.
----Respondent-Plaintiff
Connected With S.B. Civil Revision Petition No. 25/2020 Raghuveer Singh S/o Laddusingh, Age 32 Years, R/o 36 A, Krishana Vihar Extension, Gopalpura Bypass Jaipur At Present 400 Surya Nagar, Gopalpura Bypass, Jaipur
----Petitioner-Plaintiff Versus Sundar Rajpurohit S/o Gopal Singh, R/o Hostel Campus Vidhyashram School, Bajaj Nagar, Jaipur
----Respondent-Defendant For Petitioner(s) : Mr. Sampat Lal Songara For Respondent(s) : Mr. Rajesh Maharishi HON'BLE MR. JUSTICE SUDESH BANSAL Judgment 27/09/2022
1. In both revision petitions, challenge has been made to the Order dated 21.01.2020 passed in Civil Suit No.34/485/2014 by the Court of Additional Civil Judge and Metropolitan Magistrate No.2, Jaipur Metropolitan, Jaipur, hence with consent of learned counsel for both parties, both revision petitions have been heard together and would stand decide by this common judgment.
2. Heard learned counsel for both parties, perused the impugned order and record made available before this Court.
3. This is a case where plaintiff Raghuveer Singh alleges himself to be a tenant in one room, kitchen and lath-bath situated in house No.36-A, Krishna Vihar Extension, Gopalpura Bypass, (Downloaded on 01/10/2022 at 08:34:15 PM) (2 of 12) [CR-25/2020] Jaipur, w.e.f. 01.01.2008 @ Rs.1700/- per month and which increased to Rs.2000/- per month. Plaintiff alleged his dispossession from rented premises illegally by defendant-landlord on 03.06.2014 and has instituted a civil suit for restoration of possession before the Civil Court on 20.11.2014, taking resort to Section 6 of the Specific Relief Act, 1963 (hereinafter referred as "the Act of 1963").
4. Defendant-landlord does not dispute the relationship of landlord and tenant between parties and has moved application under Order 7 Rule 11 CPC, raising following two objections:
(I) The jurisdiction of Civil Court to entertain civil suit for restoration of possession filed by tenant is expressly barred by virtue of Section 18 of the Rajasthan Rent Control Act, 2001, and remedy to the tenant, if illegally dispossessed, is envisaged under Sections 11 & 12 of Rajasthan Rent Control Act, 2001, itself.
(II) Plaintiff has not valued the civil suit properly and the court fees paid, is insufficient.
5. Plaintiff has filed reply to the application but nothing has been said about the remedy available to plaintiff-tenant under Sections 11 & 12 of the Rajasthan Rent Control Act, 2001 (hereinafter referred as "the Act of 2001"), if he was aggrieved by his illegal dispossession from the rented premises on 03.06.2014. The plaintiff-tenant has simply replied that since he has instituted the civil suit invoking provisions of Section 6 of the Act of 1963, the Civil Court has a jurisdiction to try the suit. In respect of court fees, plaintiff has replied that the civil suit has properly been valued and sufficient court fees has been paid.
6. Learned trial court, after hearing counsel for both parties, decided the application under Order 7 Rule 11 CPC vide order (Downloaded on 01/10/2022 at 08:34:15 PM) (3 of 12) [CR-25/2020] impugned dated 21.01.2020. The trial court has dismissed the application under Order 7 Rule 11 CPC for rejection of the plaint, on the ground of having no jurisdiction to try the present suit by the Civil Court in view of Section 18 of the Act of 2001, but has accepted the application partially, directing plaintiff to make valuation of plaint as per market value of the suit property and to pay court fees accordingly, as per provisions of Section 29 of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter referred as "the Act of 1961").
7. Defendant has challenged the impugned order dated 21.01.2020, by way of filing S.B. Civil Revision Petition No.67/2020 to the extent of not rejecting the civil suit before the Civil Court, despite of clear bar under Section 18 of the Act of 2001, and plaintiff has challenged the impugned order dated 21.01.2020, in respect of directing him to make the valuation of suit as per market value and to pay court fees accordingly, by way of filing S.B. Civil Revision Petition No. 25/2020.
8. Learned counsel for petitioner-defendant, Sh. Rajesh Maharishi, has strenuously urged that as per pleadings of plaint, it is an admitted position that plaintiff has filed the present civil suit for restoration of possession of the tenanted property, alleging his status as tenant. Learned counsel has pointed out that the suit property is situated in Jaipur City, where provisions of the Act of 2001, have been made operative w.e.f. 01.04.2003, when the Act of 2001 received assent of the President and after publication of the same in Rajasthan Gazette Extra-ordinary dated 11.03.2003. He has pointed out that with promulgation of Section 18 of the Act of 2001, jurisdiction of the Civil Court has expressly been barred for hearing and deciding petitions relating to disputes between (Downloaded on 01/10/2022 at 08:34:15 PM) (4 of 12) [CR-25/2020] landlord and tenant and matters connected therewith and ancillary thereto. He has pointed out that in the same Act (the Act of 2001), remedy under Section 11 is provided to tenant, in case any tenant is dispossessed by landlord from rented premises without his consent, otherwise than by due process of law. As per Section 11 of the Act of 2001, the prescribed limitation for tenant is 30 days from the date of knowledge of dispossession of tenant. The procedure for restoration of possession is provided under Section 12 of the Act of 2001, which is a summary procedure. Learned counsel for petitioner-defendant has placed reliance on two judgments of Single Bench of this Court i.e. Parshav Nath Jain Mandir Trust Vs. Avtar Singh [AIR (2012) Rajasthan 39] & Gyaneshwar Bhati Vs. Balur Ram [AIR (2009) Rajasthan 94].
Learned counsel for petitioner-defendant has urged that since the civil suit itself is not liable to be heard and decided by the Civil Court, the challenge made by plaintiff in respect of order for making proper valuation of suit and payment of sufficient court fees, looses its significance.
9. Learned senior counsel, Sh. Sampat Lal Songara, who is appearing for plaintiff-tenant, has vehemently opposed arguments made by learned counsel for defendant and has contended that tenant can avail the remedy under Section 6 of the Act of 1963, if he has been dispossessed without his consent, otherwise than in due course of law and plaintiff has filed the present civil suit within the limitation of six months from the date of his dispossession. In alternative, he submits that in case, this Court comes to a conclusion that the tenant has the remedy under Section 11/12 of the Act of 2001 for seeking restoration of his possession and the (Downloaded on 01/10/2022 at 08:34:15 PM) (5 of 12) [CR-25/2020] civil suit filed under Section 6 of the Act of 1963, is not maintainable before the Civil Court by virtue of Section 18 of the Act of 2001, plaintiff may be relegated to avail the alternative remedy as available under the Act of 2001.
10. In respect of challenging to the order for making the proper valuation of the suit, the learned counsel, appearing for plaintiff- tenant, has placed reliance on Section 41(d) of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter referred as "the Act of 1961"), which envisages the payment of court fees in relation to suits between landlord and tenant. He submits that Section 29 of the Act of 1961, will not apply to facts of the present case. Hence, he submits that the trial court has committed illegality and jurisdictional error in directing the plaintiff-tenant to make valuation of the tenanted property as per the market value and to pay court fees accordingly.
11. At the outset, this Court finds that this is an undisputed fact from perusal of plaint itself that plaintiff is claiming relief for restoration of possession over the tenanted property, alleging himself to be a tenant and illegally dispossessed on 03.06.2014 otherwise than in due course of law by defendant-landlord. Though learned counsel for defendant, during course of arguments, has stated that plaintiff-tenant was never dispossessed illegally, but in fact, defendant had entered into an agreement to sell his property, including the tenanted portion to one Sh. Mangal Singh Jadaun and the tenant entered into settlement with the purchaser, agreed to hand over peaceful possession of tenanted portion, after receiving some amount from the subsequent purchaser and accordingly has vacated the suit property and delivered the vacant possession to that subsequent (Downloaded on 01/10/2022 at 08:34:15 PM) (6 of 12) [CR-25/2020] purchaser, namely, Sh. Mangal Singh Jadaun. Even it has pointed out that the required documents in respect of delivery of possession, were also signed by the plaintiff. He has pointed out that plaintiff himself has given reference in the plaint for making his signatures on some blank papers. He submits that on 09.06.2014, defendant has executed a registered sale deed in favour of Mangal Singh Jadaun, therefore, civil suit filed by plaintiff against defendant on 20.11.2014 is wholly malicious and misconceived. The copy of sale deed is also placed on record.
12. This Court is not going into the fact, as to whether defendant-landlord has sold out the property to Mangal Singh Jadaun or whether tenant has handed over the peaceful possession of tenanted property to subsequent purchaser Mangal Singh Jadaun, as their contentions are not part of pleadings of plaint and confining itself to the pleadings of plaint only and considering the case of plaintiff within scope of Sections 18 & 11 of the Act of 2001, as also according to the case-law cited before the Court.
13. Before adverting Section 18 of the Act of 2001, it is apposite to reproduce the relevant portion of provision hereunder:
"18.Jurisdiction of Rent Tribunal.-
(1)Notwithstanding anything contained in any other for the time being in force, in the areas to which this Act extends, only the Rent Tribunal and no civil Court shall have jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act:......."
14. In case of Parshav Nath Jain Mandir Trust (Supra), the Coordinate Bench of this Court dealt with similar controversy, (Downloaded on 01/10/2022 at 08:34:15 PM) (7 of 12) [CR-25/2020] where the issue arose that whether a civil suit between the landlord and tenant, is maintainable before the Civil Court in view of the non-obstante provisions of Section 18(1) of the Act of 2001. In that case, on the basis of one compromise, tenant instituted a civil suit under the Act of 1963 before the Civil Court. Having considered the nature of dispute between landlord and tenant and placing reliance on Section 18(1) of the Act of 2001, the Coordinate bench of this Court has held as under:-
"9. In the present case, admittedly, there was a compromise decree in an eviction suit filed by the plaintiff Trust on 7/7/2005 under which the vacant plot of land was to be handed over by the tenant to the landlord and on a portion thereof a shop measuring 12'x25' was to be constructed by the Trust and to be handed over to the tenant on a fresh tenancy of Rs. 200 per month. It was so done but there is dispute between the parties that lesser area was given to the tenant than the one agreed in the compromise on 7/7/2005. Therefore, undoubtedly, the dispute was arising between the parties as landlord and tenant and their relationship as landlord and tenant, which earlier existed, remains the same and in view of Section 18(1) of the Act of 2001 no such dispute between the landlord and tenant and matters incidental and ancillary thereto have to be tried and decided exclusively by the Rent Tribunal and jurisdiction of civil court is completely barred.
10. The contention of learned counsel for the respondent plaintiff- tenant that present suit is a suit for specific performance and, therefore, is not covered within the scope of Rent Control Act, 2001 is misconceived. Merely titling the suit as suit for specific performance, which in substance seeks resolution of dispute between the parties as landlord and tenant cannot oust the jurisdiction of Rent Tribunal or confer such jurisdiction upon the civil court in the face of non obstante provision of Section 18(1) of the Act of 2001, reproduced above."(Downloaded on 01/10/2022 at 08:34:15 PM)
(8 of 12) [CR-25/2020]
15. In case of Gyaneshwar Bhati (Supra), the Coordinate Bench of this Court also held that the civil suit before the civil court in relation to the dispute between landlord and tenant and matters connected therewith and ancillary thereto, is not amiable before the Civil Court by virtue of Section 18(1) of the Act of 2001.
16. This Court has also noticed that the Act of 2001, is a special statue and has come in force in the State of Rajasthan and applies to the suit premises in the present case. A specific remedy to the tenant, who alleges his illegal dispossession from rented premises, is provided under Section 11 of the Act of 2001. Ordinarily, it is a settled proposition of law that special law will prevail over the general law. In respect of that Hon'ble Supreme Court in case of Commercial Tax Officer, Rajasthan Vs. Binani Cements Limited [(2014) 8 SCC 319] has held as under:-
34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject.
The aforementioned ratio decidendi has been followed by Hon'ble Spreme Court recently in case of Owners and Parties interested in the Vessel M.V. Polaris Galaxy Vs. Banque Cantonale De Geneve [MANU SC (1236) 2022].
17. Coming to facts of the present case, plaintiff claims himself to be tenant in the suit property and alleges to be illegally dispossessed on 03.06.2014 on the basis of such facts, plaintiff (Downloaded on 01/10/2022 at 08:34:15 PM) (9 of 12) [CR-25/2020] could have availed the remedy for restoration of possession of rented premises by filing the petition under Section 11 of the Act of 2001 within 30 days from the date of knowledge of his dispossession. Undisputedly, plaintiff claimed his dispossession on 03.06.2014 so he could have filed petition under Section 11 within 30 days thereafter. Plaintiff has not availed the remedy as envisaged under Section 11 of the special statute of the Act of 2001. It is not a case that in respect of the suit premises, this special statue of the Act of 2001 has no applicability. It appears that once the plaintiff lost his opportunity to avail the remedy under Section 11 of the Act of 2001, due to lapse of limitation, later on he has resorted to the remedy provided under Section 6 of the Act of 1963, by way of filing a civil suit before the Civil Court. Therefore by perusal of pleadings of plaint itself it stands clear that the present civil suit involves the dispute between landlord and tenant. Once it is not in dispute that present suit is filed by tenant, against landlord, for restoration of possession, the Section 18(1) of the Act of 2001 clearly and expressly barres the remedy to file a civil suit before the Civil Court. The proposition of law as expounded in case of Parshav Nath Jain Mandir Trust (Supra), applies to facts of present case as a whole. As a look on Section 18(1) of the Act of 2001 (mentioned Supra) which is a non-obstante clause, leaves no room of doubt that in case of disputes between landlord and tenant and matters connected therewith and ancillary thereto, such disputes shall be heard and decided by the Rent Tribunal only and not by the Civil Court.
18. After discussions made hereinabove, this Court is of considered opinion that the civil suit filed by plaintiff-tenant invoking provisions of Section 6 of the Act of 1963, before the Civil (Downloaded on 01/10/2022 at 08:34:15 PM) (10 of 12) [CR-25/2020] Court, is not maintainable and liable to be rejected, by virtue of Section 18(1) of the Act of 2001. The trial court has committed illegality and jurisdictional error in not pondering over the specific bar to hear & trial the dispute like present one by Civil Court, as envisaged under Section 18(1) and has erred in dismissing the application under Order 7 Rule 11 CPC of defendant in this respect. Hence the impugned Order dated 21.01.2020, to the extent of dismissing the application under Order 7 Rule 11 is hereby quashed and set aside.
19. Accordingly, the S.B. Civil Revision Petition No.67/2020 stands allowed and the civil suit filed by plaintiff-tenant for restoration of his possession before the Civil Court, is hereby rejected.
20. As far as the challenge to the impugned order dated 21.01.2020 in the petition filed by plaintiff is concerned, this Court is convinced that once the plaintiff instituted suit against defendant-landlord for restoration of his possession over the tenanted property, for the purpose of valuation and payment of court fees, provisions of Section 41 of the Act of 1961, would apply and govern the suit. The trial court has committed illegality and jurisdictional error in not adverting to Section 41 of the Act of 1961 but applying Section 29 of the Act of 1961. When a specific provision of Section 41 is provided for valuation and payment of court fees for the suits between landlord and tenant, in that situation Section 29 of the Act of 1961 does not come in play. However, since this Court has already held in the foregoing paragraphs while allowing Civil Revision Petition No.67/2020, that the civil suit filed by plaintiff-tenant before the Civil Court itself is not maintainable and suit has been ordered to be rejected, it is (Downloaded on 01/10/2022 at 08:34:15 PM) (11 of 12) [CR-25/2020] needless to quash the Order dated 21.01.2020, in respect of issuing directions by the trial court for making valuation of the present suit as per market value and for payment of deficit court fees, as the same leads no result or benefit to plaintiff, in the present suit. Therefore, petition filed by plaintiff, has rendered infructuous.
21. Accordingly, with aforesaid observations, the S.B. Civil Revision Petition No.25/2020 filed by plaintiff stands disposed of.
22. After passing the Order in open Court, learned counsel for petitioner-tenant has made a prayer that when this Court has reached to the conclusion that plaintiff-tenant, could have resorted to the remedy under Section 11 of the Act of 2001 and he cannot resort to the remedy under Section 6 of the Specific Relief Act before the Civil Court, therefore, at least plaintiff may be relegated to resort the remedy under Section 11 of the Act of 2001 and benefit of Section 14 of the Limitation Act, be given to the plaintiff. Learned Counsel for defendant has opposed such oral prayer, on the ground that the limitation for invoking the remedy under Section11 of the Act of 2001, has already expired and plaintiff-tenant never acted in good faith rather the present suit itself is malicious and misconceived against the defendant, who has already sold the property through registered sale deed much prior to the present suit. Further, once plaintiff-tenant, being well advised by his advocate, himself chooses to file a civil suit taking resort of Section 6 of the Act of 1963, he cannot take benefit of his own wrong, after rejection of his suit, being barred by law and civil suit cannot be said to have been filed in good faith.
23. This Court is not inclined to grant any liberty to plaintiff- tenant either to seek remedy under Section 11 of the Act of 2001 (Downloaded on 01/10/2022 at 08:34:15 PM) (12 of 12) [CR-25/2020] or for taking any benefit of Section 14 of Limitation Act, yet if any remedy under Section 11 of the Act of 2001 is still available to the petitioner in law, it is needless to say that plaintiff is always at liberty to take appropriate remedy in law.
24. With aforesaid discussions, both revision petitions stand disposed of. Copy of judgment be placed on the record of another file.
25. All other pending application(s), if any, also stand(s) disposed of.
(SUDESH BANSAL),J SACHIN/81-82 (Downloaded on 01/10/2022 at 08:34:15 PM) Powered by TCPDF (www.tcpdf.org)