Rajasthan High Court - Jodhpur

Shankerlal Nadani vs Sohanlal Jain on 16 December, 2021

Bench: Sudesh Bansal

HIGH COURT OF JUDICATURE FOR RAJASTHAN, JODHPUR S.B. Civil Second Appeal No. 119/2021

Shankarlal Nadani S/o Late Dhanraj Nadani, age 49 years, Shop No. 4, Jain Katla, Bikaner Road, Suratgarh, Distt. Sriganganagar

----Appellant Versus Sohanlal Jain S/o Late Loonkaran Jain, R/o D-3 Daspa House, Loco-shed Road, Jodhpur

----Respondent

For Appellant(s) : Mr. Manish Shishodia Mr. Jaideep Singh Saluja For Respondent(s) : Mr. S.L. Jain Mr. Abhinav Jain

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

Judgment reserved on: 06/12/2021 Judgment pronounced on: December 16, 2021

Reportable

This Civil Second Appeal under Section 100 CPC filed by the

appellant-defendant-tenant (hereinafter 'the tenant') comes up

challenging the judgment and decree dated 05.10.2021 by the

learned Additional District Judge, Suratgarh, District

Sriganganagar in Civil Appeal No. 06/2015 upholding and

affirming the judgment and decree dated 28.05.2015 passed by

the Civil Judge, Suratgarh in Civil Original Suit No. 24/2013

decreeing the suit filed by the respondent-plaintiff-landlord

(hereinafter 'the landlord') for eviction and mesne profits.

Heard the learned counsel for the parties and perused the

impugned judgment and decree passed by the Courts below.

(2 of 13) [CSA-119/2021]

The facts of the case as culled out from the record are that

one Shop No.4 (measuring 10x15 sq. feet) situated at Jain Katla,

Suratgarh of the respondent-landlord was let out to father of the

appellant and after the death of father, the shop is continuing in

monthly tenancy of the appellant. As per plaint, the shop was let

out in the year 1982 at the rent of Rs.583.33 per month whereas

as per the defendant, the shop was taken on rent in the year 1972

at the rent of Rs.110/- per month and the rent was enhanced to

Rs.3500/- half yearly (Rs.583.33 per month), so it was half-yearly

oral tenancy.

The landlord issued a registered notice dated 22.03.2013

under Section 106 of the Transfer of Property Act ('TP Act herein

after), terminating the tenancy of the respondent-tenant with

effect from 31.03.2013, inter alia, alleging non-payment of rent

and requirement of reconstruction of the shop as also the

allegation of material alteration by the tenant. Then the landlord

filed the civil suit for arrears of rent and eviction with the prayer

for mesne profits @ 10,000/- per month before the Civil Judge,

Suratgarh in the year 2013. At the time of filing the civil suit, the

provisions of the Rajasthan Rent Control Act 2001 {herein after

'the Act of 2001'} was not in force in the municipal area of

Suratgarh, therefore, this civil suit involving the provisions of the

TP Act was maintainable.

The tenant-defendant filed written statement admitting his

tenancy in the suit shop but denied the receipt of notice under the

TP Act. It was contended that the rent till March, 2014 was

already paid and said notice under the TP Act is misconceived. The

claim of mesne profit Rs. 10,000/- per month was also denied and

the civil suit was prayed to be dismissed.

(3 of 13) [CSA-119/2021]

Five issues were framed, which are referred in the impugned

judgment dated 28.05.2015. Both the parties led their respective

evidence. After hearing the parties and considering evidence of

both the parties, the Trial Court decided the issues No.1 and 2 in

favour of the plaintiff-landlord and the issues No.3 and 4 against

the defendant-tenant and accordingly passed decree for eviction

against the tenant vide judgment dated 28.05.2015 and directed

to hand over the vacant possession of the rented shop to the

landlord as also to pay the arrear of due rent and continue to pay

mesne profit @ Rs.5000/- per month from April, 2013 onwards

until delivery of the possession.

The trial court has recorded findings of fact that the tenancy

between the parties was month-to-month and has been

terminated by giving registered notice under Section 106 of the TP

Act (Exhibits 1 and 2). In his statements, the tenant admitted

service of notice upon him and the objection of the tenant that the

notice was waived due to acceptance of rent by the landlord

during trial was turned down, following the proviso to Section 112

of the Transfer of Property Act.

First Appeal there-against filed by the tenant was also

dismissed by the appellate court vide judgment dated 05.10.2021.

Hence this second appeal.

Learned counsel for the appellant- tenant submitted that the

eviction decree passed by the civil court on 28.05.2015 is without

jurisdiction as the Rent Control Act, 2001 was extended to the

municipal area of Suratgarh vide Notification dated 11.07.2014

with effect from 11.05.2015 and therefore, jurisdiction of the civil

court stood ceased to pass the eviction decree on 28.05.2015. To

substantiate his arguments, reliance has been placed on the

(4 of 13) [CSA-119/2021]

judgment in the case of K. Ramnarayan Khandelwal v.

Pukhraj Banthiya [2017(4) DNJ (Raj.) 1688].

The Division Bench of this Court in K. Ramnarayan Vs

Pukhraj: D.B. Civil Reference No.01/2015 (decided on

26.10.2017) answered the Reference in following terms:

"44. The reference is accordingly answered in terms of paras 31 and 43 above. Meaning thereby, once the Rajasthan Rent Control Act 2001 was extended to the municipal areas, the Civil Courts would lose jurisdiction to adjudicate a dispute between a landlord and a tenant. No tenant could be evicted by a Civil Court. The eviction had to be as per the Rajasthan Rent Control Act 2001 and on the grounds specified in Section 9 thereof. Even where decrees of ejectment had been passed by the Civil Courts and matters were pending consideration in appeal, the civil proceedings would lapse."

The aforesaid view and proposition, answered in K.

Ramnarayan's case (supra), was put to challenge before the

Hon'ble Supreme Court by way of a Petition for Special Leave to

Appeal No.1551/2018: Pukhraj Vs K. Ramnarayan, wherein the

Supreme Court entertained the SLP and stayed operation of the

order dated 26.10.2017 passed by the Division Bench of this Court

in aforesaid D.B. Civil Reference No.01/2015. The order passed by

the Hon'ble Supreme Court in the aforesaid SLP on 05.03.2018

reads as under:

"Until further orders, there shall be stay of the operation of the order dated 26.10.2017 passed by the High Court of Judicature for Rajasthan at Jaipur in D.B. Civil Reference No.1 of 2015."

The counsel for the appellant-tenant contends that though

the operation of the judgment dated 26.10.2017 passed in K.

(5 of 13) [CSA-119/2021]

Ramnarayan (DB Civil Reference No.01/2015) has been stayed by

the Hon'ble Supreme Court vide order dated 05.03.2018 passed in

a Petition for Special Leave to Appeal No.1551/2018 but the same

is only an interim order that too passed without assigning the

reason and the judgment dated 26.10.2017 has not been quashed

and set aside so far, therefore, the High Court is not bound to

follow the order dated 05.03.2018 as a ratio of law. Much reliance

has been placed on (1992) 1 SCC 489: State of Punjab Vs

Surinder Kumar & others in support of such contention.

On the other hand, learned counsel for the landlord argued

that once the Hon'ble Supreme Court has stayed the operation of

Reference order dated 26.10.2017 in explicit terms, the same

does not hold the field now. The eviction suit filed under the TP

Act was maintainable at the time of its institution and the civil

court, after full dressed trial, has passed the decree for eviction,

which is well within the jurisdiction of law and as such deserves to

be sustained.

Heard both the counsel for the landlord and the tenant.

It is not in dispute that at the time of filing the civil suit for

ejectment against the tenant, purportedly after termination of his

tenancy under Section 106 of the TP Act, the provisions of the

Rajasthan Rent Control Act 2001 were not in force in Suratgarh;

however, the State Government vide notification dated 11.07.2014

extended the provisions of the Rajasthan Rent Control Act 2001 to

the municipal area of Suratgarh also with effect from 11.05.2015.

The civil court passed the decree for eviction and mesne profits

thereafter on 28.05.2015, which has been affirmed by the first

appellate court on 05.10.2021.

(6 of 13) [CSA-119/2021]

This Court is of the opinion that once the Supreme Court has

stayed the operation of the order dated 26.10.2017 which is a

view of the Division Bench while answering a question in

Reference petition, there is no justification to accept the

arguments of the counsel for the tenant that the view propounded

by the Division Bench in the Reference order dated 26.10.2017

should be deemed to be operative and be followed, as the order

has not yet been quashed and only its operation is stayed.

The two co-ordinate Benches of Rajasthan High Court also

adopted the same view taken by this Court herein above. The

Rajasthan High Court in other two cases viz. SBCWP

No.2430/2021: Shankerlal Nadani Vs Sohan Lal Jain and SBCWP

No.16681/2019: Mohd Rafiq Vs Hanuman Sahai & others, while

following the order dated 05.03.2018 passed by Hon'ble Supreme

Court in the SLP, did not agree with the contention that the order

dated 26.10.2017 passed in the Reference case is still in force

despite staying its operation by the Supreme Court. In Mohd Rafiq

Vs Hanuman Sahai etc (supra), the Court observed as follows:

"4. This Court finds that the original judgment passed by this Court in K. Ramnarayan Vs. Shri Pukhraj in DB Civil Ref No.1/2015 holding that the cases under the TP Act cannot be allowed to continue has been stayed by the Supreme Court in Pukhraj Vs. K. Ramnarayan in SLP No.1551/2018.

5. In view of the stay passed by the Supreme Court, the trial Court would continue to have jurisdiction to decide the case under the Transfer of Property Act as it existed and the new Rent Control Act would have no application as the view taken by this Court has already been stayed by the Supreme Court."

(7 of 13) [CSA-119/2021]

As far as the judgment in Surinder Kumar's case (supra)

relied upon by the counsel for the tenant is concerned, same does

not support his argument that since the order of the Supreme

Court dated 05.03.2018 is an interim order, passed without

assigning any reasons, therefore, the order on the Reference

passed by the Division Bench of the High Court on 26.10.2017 be

treated as alive and operative and the order of the Hon'ble

Supreme Court be not treated as binding.

In fact, in Surinder Kumar's case, the Director, Education

Department of the State of Punjab issued certain instructions in

the year 1990 and the respondents therein were offered post of

part-time Lecturer on specific condition that he could be relieved

at any time without notice and that the payment would be made

as per the Note indicated therein on hourly basis. The respondents

accepted the offers and were appointed accordingly. The

respondents then filed a Civil Writ Petition, contending that they

were entitled to be regularised as Lecturer on regular pay scale.

The High Court allowed the writ petition by a cryptic and un-

reasoned order. The matter went to the Supreme Court. Before

the Supreme Court, the order passed by the High Court was tried

to be justified by saying that in several cases, the Supreme Court

has issued direction for absorption of temporary and ad-hoc

servants on permanent basis, that too without assigning any

reason and therefore, if this could be done by the Supreme Court,

it should be open to the High Court as well to allow a writ petition

in similar terms. In that backdrop of facts, the Supreme Court

observed:

"6. A decision is available as a precedent only if it decides a question of law. The respondents are, therefore, not entitled

(8 of 13) [CSA-119/2021]

to rely upon an order of this Court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that for special grounds which must have been available to the temporary employees in those cases, they were entitled to the relief granted. Merely because grounds are not mentioned in a judgment of this Court, it cannot be understood to have been passed without an adequate legal basis therefor. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a court whose judgment is not subject to further appeal and other courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Article 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge."

Thus, the case of Surinder Kumar (supra) is not applicable to

this Second Appeal arising out of a dispute between a landlord and

tenant and does not extend any support to the appellant.

The issue can be examined from another angle also. The

tenant does not dispute that at the time of institution of the

eviction suit, the civil court had the jurisdiction to entertain and

decide the eviction suit by applying the provisions of the TP Act. It

(9 of 13) [CSA-119/2021]

is also not disputed that the tenant participated in the trial of the

civil suit and got fullest opportunity to contest the eviction suit

and further, full dressed trial has been completed.

It is only at the fag end of trial or just before passing of the

judgment, the State Government issued notification dated

11.07.2014 and provisions of the Act of 2001 came in force with

effect from 11.05.2015 in the municipal area of Suratgarh where

the rented shop is situated. Thus, when in the present case entire

proceedings of eviction has already been completed before the

civil court following the provisions of the TP Act, then it would be

unjust and improper to treat all such proceedings of the civil court

as nullity and without jurisdiction and to expect from the landlord

to initiate fresh proceedings for eviction following the provisions of

the Act of 2001 before the Rent Tribunal. This would cause

immense hardship to the landlord and give undue advantage to

the tenant.

If such uncertainty in following the procedure of law is

allowed to prevail, it would lead to a position of confusion and

chaos to the landlords and the tenants whose premises are

situated in those towns/municipal areas for which the notification

for bringing the provisions of the Act of 2001 has not yet been

passed by the State Government. Such situation of confusion and

uncertainty should be avoided and a harmony has to be

maintained for application of the provisions of the TP Act vis-a-vis

provisions of the Act of 2001 on the rented premises.

The balance has to be struck out and a pragmatic approach

ought to be adopted, to give a finality to the adjudication of the

dispute between the landlord and tenant. It is no more res integra

that in all the municipal areas in the State of Rajasthan where the

(10 of 13) [CSA-119/2021]

provisions of the Act of 2001 have not come in force, the disputes

between landlord and tenant are being governed by the provisions

of the TP Act. If in those municipal areas, after institution of the

civil suit and commencement of the trial of the civil suit, the

provisions of the Act of 2001 are extended by the State

Government subsequently, all the eviction proceedings pending

either at the trial stage or at the appellate stage, should be

allowed to continue for adjudication, according to the provisions of

the TP Act only, unless & until the notification of the State

Government itself does not provide the applicability of the Act of

2001 with retrospective effect on the pending or decided

proceedings or any other scheme of law is not provided to govern

the pending proceedings by the provisions of the Act of 2001 only.

In the opinion of this Court, for civil suits of eviction, which have

been instituted before coming into force of the Act of 2001, the

proceedings should be allowed to continue till culmination

according to the TP Act. The law and procedure of the Act of 2001

may be allowed to be followed only for those eviction proceedings,

which are filed after coming into force of the Act of 2001. The

substantive provisions of the TP Act as applicable at the time of

institution of the civil suit and commencement of the trial of the

civil suit should continue to be applicable to such proceedings.

The order dated 05.03.2018 passed by the Hon'ble Supreme

Court is well clear and gives a clear reflection that by staying the

operation of the order dated 26.10.2017 passed by the Division

Bench in the Reference case of K. Ramnarayan (supra), same is

not required to be given effect to and need not be followed further

and thus, the pending or decided eviction proceedings under the

(11 of 13) [CSA-119/2021]

provisions of the TP Act may continue despite coming into force of

the Act of 2001.

In the judgment of Hon'ble Supreme Court in the case of

Surinder Kumar (supra), relied upon by the appellant, it has

clearly been observed that it is not imperative for the Supreme

Court to assign reasons to justify its orders.

Therefore, it is hereby held that once the operation of the

order dated 26.10.2017 delivered by the Division Bench in K.

Ramnarayan's case has been stayed by the Hon'ble Apex Court in

clear and explicit terms vide order dated 05.03.2018, the eviction

decree passed by the civil court is treated within the jurisdiction

and parameters of law, as such, the impugned decree for eviction

deserves to be sustained.

Hon'ble Supreme Court in Nazir Mohamed Vs J. Kamala

and others (Civil Appeal No.2843-2844 of 2010, decided on

27.08.2020) observed as follows:

"35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari: (2001) 3 SCC 179.

36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam: AIR 1963 SC 302. An entirely new point, raised for the first time, before the High Court, is not a

(12 of 13) [CSA-119/2021]

question involved in the case, unless it goes to the root of the matter."

The appellant is tenant since year 1972 and has already

suffered decree for eviction under the law, as applicable at the

time of filing of the eviction suit. Further the appellant-tenant has

contested the civil suit and led his evidence. The tenant has

accepted receipt of notice, terminating his tenancy. Both the

courts have thoroughly discussed the evidence and consequently

the judgments and decrees have been passed on cumulative effect

of findings on issues. The appellant-tenant has got fullest

opportunity to contest the civil suit and the First Appeal.

Therefore, considering all the facts and circumstances, the eviction

decree may not be kept in abeyance for uncertain period and

deserves to be sustained, so as to put an end to this litigation