Bhanwar Lal vs Ogad Ram
2021 Latest Caselaw 18400 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3771/2021

Bhanwar Lal S/o Achla Ram, Aged About 60 Years, 15, Surajpole, Ghanchiyon Ka Baas, Pali, District Pali.

----Petitioner Versus Ogad Ram S/o Bhaira Ram, By Caste Ghanchi, Resident Of Somnath Mandir Road, Pali, District Pali

----Respondent Connected With S.B. Civil Writ Petition No. 3759/2021 Bhanwar Lal S/o Shri Achla Ram, Aged About 60 Years, Resident Of 15, Surajpole, Ghanchiyon Ka Baas, Pali, District Pali.

----Petitioner Versus Ogad Ram S/o Shri Bhaira Ram, By Caste Ghanchi, Resident Of Somnath Mandir Road, Pali, District Pali, Rajasthan.

                                                                ----Respondent


For Petitioner(s)        :     Mr. Vasudev Charan, Mr. Gourav
                               Thanvi, Mr. Dinesh Purohit,
                               Mr. Rajendra Mulewa
For Respondent(s)        :     Mr. Birbal Ram

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

03/12/2021

1. These writ petitions have been preferred claiming, in sum

and substance, the following reliefs:

"i) by an appropriate writ, order or direction, the impugned order dated 05.02.2019 (Annexure-P/5) passed by the learned Rent Tribunal, Pali rejecting the application under Order 9 Rule 13 CPC and the impugned order dated 10.02.2021 (Annexure-P/7)

(2 of 6) [CW-3771/2021]

passed by the learned Appellate Rent Tribunal, Pali dismissing the appeal may kindly be declared illegal and be quashed and set aside.

ii) by an appropriate writ, order or direction, the Application (Annexure-P/3) filed by the petitioner under Order 9 Rule 13 CPC read with Section 151 CPC may kindly be allowed and the ex-parte judgment and decree dated 07.09.2017 (Annexure-P/2) may kindly be set aside.

iii) by an appropriate writ, order or direction the case of the petitioner is writ large to remand back to the matter to the learned Rent Tribunal with the direction to decide afresh on merits in accordance with law after giving opportunity to the petitioner to led evidence and after considering the facts and material available on record."

2. Learned counsel for the petitioner-tenant submits that the

respondent-landlord filed an application under Section 9 of the

Rent Control Act, 2001 for eviction and physical possession of the

premises in question.

3. Learned counsel for the petitioner further submits that

learned Rent Tribunal, Pali has passed an order for initiating

proceedings on 17.08.2017, and since despite service and without

any reason, no one appeared on behalf of the petitioner-tenant, a

final decree was passed ex parte by the learned Rent Tribunal on

07.09.2017.

4. Learned counsel for the petitioner also submits that

thereafter, the petitioner filed an application under Order 9 Rule

13 read with Section 151 CPC against the aforementioned ex

parte decree, but the said application was dismissed by the

learned Rent Tribunal vide order 05.02.2019. Learned counsel

further submits that the petitioner being aggrieved by the said

(3 of 6) [CW-3771/2021]

order dated 05.02.2019 preferred an appeal bearing Appeal

No.01/2019 before the learned Appellate Rent Tribunal, Pali, but

the same was also dismissed vide order dated 10.02.2021.

5. Learned counsel for the petitioner has drawn the attention of

this Court towards the sequence of events when the petitioner was

suffering from physical infirmity, and thus, could not appear before

the learned Rent Tribunal, despite service.

6. Learned counsel for the petitioner also tried to impress upon

this Court court that the aforementioned ex parte decree granted

is unlawful, and thus, an opportunity of hearing ought to be given

to the petitioner to address the issue.

7. Learned counsel for the respondent-landlord however,

submits that even after passing of the ex parte decree dated

07.09.2017, the application under Order 9 Rule 13 read with

Section 151 CPC preferred by the petitioner-tenant, has been

dismissed by the learned court below vide order dated

05.02.2019, and thereafter the appeal preferred thereagainst has

also been dismissed on 10.02.2021, and thus, the consecutive

orders of the learned courts below on merits, which dealt at length

with the ex parte situation have been passed and any reversal of

such orders at this stage shall be prejudicial to the respondent-

landlord.

8. Heard learned counsel for the parties as well as perused the

record of the case.

9. This Court, on overall consideration of the facts and

circumstances of the case, had passed the following interim order

on 02.03.2021:

(4 of 6) [CW-3771/2021]

"In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

Issue notice to the respondents. Issue notice of stay application also, returnable within a period of two weeks. Notices be given 'dasti' to counsel for the petitioner to effect service upon the respondents.

In the meanwhile, both the parties shall maintain status quo regarding the property in-question.

Counsel for the petitioner shall take instruction as to how long he shall take to vacate the premises in- question on the next date."

10. In the interest of justice, a coordinate Bench of this Hon'ble

Court thereafter has passed the following order on 18.11.2021:

"1. On 02.03.2021, this Court had passed the following order :

"In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court. Issue notice to the respondents. Issue notice of stay application also, returnable within a period of two weeks. Notices be given 'dasti' to counsel for the petitioner to effect service upon the respondents. In the meanwhile, both the parties shall maintain status quo regarding the property in-question. Counsel for the petitioner shall take instruction as to how long he shall take to vacate the premises in question on the next date."

2. In the prima facie opinion of this Court, the notices in this case were issued only to the limited extent of granting time to the petitioner to vacate the premises.

3. Learned counsel for the petitioner submits that the Court had issued notices after hearing learned counsel for the petitioner on merit of the case and the

(5 of 6) [CW-3771/2021]

following stipulation was only an alternative to the petitioner's main contentions :

"Counsel for the petitioner shall take instruction as to how long he shall take to vacate the premises in question on the next date."

4. In view of the aforesaid, let the matters be placed before the concerned Bench, which has passed the order dated 02.03.2021."

11. Thereafter, the office of this Hon'ble Court has placed the

matter before this Court, and the parties have addressed the issue

in question at length, as above.

12. This Court finds that it is a case where an ex parte order was

passed in favour of the landlord (respondent) on 07.09.2017,

which is well justified and reasoned on 7.9.2017 and thereafter

the application under Order 9 Rule 13 read with Section 151 CPC

preferred by the tenant (petitioner) has been dismissed on

05.02.2019, and an appeal preferred against the same was also

dismissed on 10.02.2021.

13. This Court finds that the three consecutive orders passed by

the learned courts below are there, wherein the learned courts

have dealt at length with the issue and find that there was no case

either ex parte, or even on merits, in favour of the petitioner-

tenant.

14. Learned counsel for the petitioner could not point out any

substantial merit or even reason for his non-appearance before

the learned Rent Tribunal, though the physical infirmity of the

petitioner was mentioned, but the dates are still long-spanned,

and could not justify non compliance of the summons of the

learned court below. Moreover, the factual matrix of the case is

not disputed by learned counsel for the petitioner, and except for

(6 of 6) [CW-3771/2021]

this, no other submissions on merits have been made by learned

counsel for the petitioner..

15. In view of the above, no case for making any interference is

made out.

16. Consequently, the present petitions are dismissed. All

pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J.

53-54-SKant/-

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