Bhanwarlal vs Kalyanmal Daga
2021 Latest Caselaw 18137 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16620/2021

Bhanwarlal S/o Late Shri Mishrimal, Aged About 76 Years, Caste Oswal, R/o M/s Mishrimal Bhanwarlal, Outside Fiki Kitti Pole, Tripoliya Market, Jodhpur (Raj.).

----Petitioner Versus Kalyanmal Daga S/o Bhanwarlal Alias Rikhabhdas Daga, Caste Oswal, R/o Banwato Ka Bas, Opp. City Police, Police Station, Jodhpur (Raj.).

                                                                  ----Respondent


For Petitioner(s)        :     Mr. O.P. Mehta
For Respondent(s)        :     Mr. Manish Patel



                     JUSTICE DINESH MEHTA

                                     Order

02/12/2021

1. Oppugning the order dated 28.07.2021, passed by the

learned Rent Tribunal, Jodhpur Metropolitan (hereinafter referred

to as 'the Tribunal'), whereby petitioner's application dated

27.07.2021 for framing the issue/point of determination has been

rejected, petitioner has preferred the writ petition in hands.

2. The facts within the precincts of the order under

consideration are, that the respondent-landlord instituted a

petition seeking eviction of the present petitioner-tenant, on the

ground of bonafide necessity of his son, being a ground for

eviction catalogue under Section 9(i) of the Rajasthan Rent

Control Act, 2001 (hereinafter referred to as 'the Act of 2001').

3. When the pleadings of both the parties were complete, the

present petitioner-tenant preferred an application on 27.07.2021

(2 of 5) [CW-16620/2021]

and requested the Tribunal to frame the issues or points of

determination, inter alia, contending that in view of the stand

taken in the written statement/reply, issues are required to be

framed.

4. Learned Tribunal however rejected petitioner's above

application, inter alia, observing that the respondent-landlord has

filed the petition on solitary ground of son's necessity mentioned

in Section 9(i) of the Act of 2001 and there are no other grounds

for eviction. It was further observed by the Tribunal that it was not

bound by the strict principles of Code of Civil Procedure.

5. Calling in question, the order dated 28.07.2021 Mr. Mehta

invited Court's attention towards the written statement filed by the

present petitioner-tenant and pointed out that while refuting the

bonafide necessity of respondent's son, a clear stand was taken in

the reply that the place which is being occupied by the present

petitioner-tenant is not fit for catering business as the market

where the demised shop is situated is a cloth market.

6. Learned counsel argued that the Tribunal below has even

tried to distinguish the judgment cited by the petitioner on flimsy

ground, though they squarely covered the aspect of framing the

issue.

7. Mr. Patel, learned counsel for the respondent on the other

hand stated that the Tribunal is not bound by the principles of

Code of Civil Procedure and since the Act of 2001 provides for

summary procedure, the Tribunal is competent and free to adopt

its own procedure.

8. He showed a concern that the petition, which was filed by

the respondent-landlord in 2014 is still languishing in the Tribunal

and contended that the subject application for framing issues filed

(3 of 5) [CW-16620/2021]

by the present petitioner-tenant is, nothing but an attempt to

protract the proceedings.

9. Heard learned counsel for the parties.

10. Though, rival counsel placed a couple of judgments for

perusal of the Court in order to lend strength to their cause,

however, since they are divergent in views, without going into the

correctness of either view, it is deemed appropriate to have a

fresh look at the question. Upon appraisal of factual matrix of the

extant case, this Court is of the view that the trial Court was not

justified in rejecting petitioner's application, because of the fact

that there is only one ground on which petitioner's eviction has

been sought.

11. The Tribunal has also erred in concluding that it can adopt its

own procedure and is not bound by the provisions of Code of Civil

Procedure. Such inflexible approach, this Court feels, cannot be

applied, without considering the factual situation of a particular

case.

12. In the opinion of this Court, unless the averments in the

petition or plaint are admitted by the defendant, the Tribunal or

the Court must settle the issues or to frame point of

determination, being guided, if not bound by the spirit of Order

XIV Rule 1 of the Code.

13. Laying down points of determination or settling/framing of

the issues, as a matter of fact, smoothens and facilitates the trial

and ultimately results in efficient and effectual disposed of the

case.

14. Framing of issues on the contrary, helps the Court in keeping

the evidence and arguments of the parties within the periphery of

the pleadings. It also facilitates in focussing on the core issues and

(4 of 5) [CW-16620/2021]

formulating/paraphrasing the reasoning and the grounds for the

conclusion, the Court or the Tribunal would reach.

15. In the opinion of this Court the Tribunal has misdirected itself

by observing that there is only one ground of eviction, in order to

conclude that issues are not required to be framed. There is a vast

difference between ground of eviction and questions to be

determined. There may be cases where the eviction is sought on

only one ground but based on the pleadings of the parties, there

may be a score of questions/points to be determined. The Courts

should not get confused between the 'ground' and 'issue' - they

should bear in mind the distinction between these two.

16. True it is, that the act of 2001 speaks of summary

procedure. But in the name of summary procedure, the principles

of natural justice or other salutary principles quintessential for

effective adjudication of a case/dispute, that are fundamental to

the rule of law, cannot be given a go-bye, if circumstances of a

case so warrants.

17. In light of what has been stated/discussed hereinabove,

according to this Court, order impugned dated 28.07.2021 is

unsustainable and is liable to be quashed and set aside. The same

is hereby done.

18. In order to ensure that the proceedings of the Tribunal are

not unnecessarily prolonged, both the parties are directed to

submit proposed issues or points of determination before the Rent

Tribunal on the next date of hearing, which is reported to be

08.12.2021.

19. The Tribunal shall consider the pleadings of the parties and

issues proposed by the rival parties and settle the same (issue or

point of determination), as is deemed appropriate and expedient

(5 of 5) [CW-16620/2021]

in order to decide the real controversy between the parties and to

decide the petition in accordance with law.

20. The writ petition is allowed in the aforementioned terms.

21. Stay application stands disposed of accordingly.

(DINESH MEHTA),J 36-Rahul/-

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