Suraj Mal Soni vs The Rent Tribunal Bikaner And Ors
2023 Latest Caselaw 6222 Raj

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               S.B. Civil Writ Petition No. 6720/2014

 Lr's of Surajmal Soni
 1/1      Saraswati Devi W/o Late Shri Surajmal Soni, aged about
          76 years,
 1/2      Hari Kishan Soni S/o Late Shri Surajmal Soni, aged about
          60 years,
          Both R/o Main Bazar, Gangashahar, Bikaner.
                                                                    ----Petitioner
                                     Versus
 1.      The Rent Tribunal Bikaner.
 2.      The Appellate Rent Tribunal, Bikaner.
 3.      Kishan Lal Nai S/o Shri Maga Ram Nai, R/o Near Senji
         Temple, Bothra Chowk No.2, New Line, Gangasahar,
         Bikaner.
 4.      Vijay Kumar S/o Kishan Lal Nai Bajrang Radio Center,
         Main Bazar, Opp. Chhotu Motu Hotel Street, Gangasahar,
         Bikaner.
                                                                  ----Respondents


For Petitioner(s)          :     Mr. Mahaveer Bishnoi.
For Respondent(s)          :     Mr. Manoj Bhandari, Sr. Advocate
                                 assisted by Mr. Govind Suthar.



              HON'BLE DR. JUSTICE NUPUR BHATI

                                   ORDER

23/08/2023

1. The instant writ petition has been preferred by the petitioner

under Article 226 and 227 of the Constitution of India with the

following prayers:-

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuing an appropriate writ, order or direction the impugned order dated 04.03.2014 (Annex.15) passed by learned Appellate Rent Tribunal, Bikaner may kindly be quashed and set aside and restore the order dated 16.11.2012 (Annex.14)

(2 of 10) [CW-6720/2014]

passed by the learned Rent Tribunal, Bikaner in Civil Original Case No. 104/2007.

Any other order favourable to the petitioner may also be passed."

2. Brief facts of the case are that the petitioner has a

residential house at Gangashahar, Bikaner in which there are

three shops and out of those three shops one shop was rented out

by the petitioner to respondent No.3 Kishan Lal on 20.02.1982 for

the purpose of opening a barber shop and also for doing the

business of repairing radio and watches and, thus, the rent-deed

dated 20.02.1982 was executed between the petitioner's mother

Smt Asha Devi and Respondent No.3. Also as per the rent-deed

dated 20.02.1982, the tenancy was to continue for three months

ie. till 19.05.1982, however the shop was not vacated by the

respondent No.3 and he continued using the rented premise till

date.

3. Moreover, the respondent No.3 Kishan Lal stopped the

barber business and started a new business of flour mill at Bothra

Chowk and the shop in question which was rented to respondent

No.3 has further sublet to his son, the respondent No.4 Vijay

Kumar, without permission of the petitioner in which respondent

No.4 started the business of DJ Sound in the name and style of

'Haribhai Dj Sound' and the respondent No.4 is creating noise

pollution in the house of the petitioner and due to the noise

pollution the petitioner is suffering from various health problems

and thus to stop the same he filed a complaint at the

(3 of 10) [CW-6720/2014]

Gangashahar Police Station. Thereafter the SHO Gangashahar,

Bikaner submitted the complaint dated 04.09.2007 against

respondent No. 3 and 4 before Sub Divisional Magistrate, Circle

North, Bikaner U/S 133 CRPC and the SHO Gangashahar also gave

a notice dated 13.11.2007 to the respondents for stopping the

noise pollution by the speakers and DJ system.

4. As the shop in question was not used for the purpose for

which it was given on rent and the respondents continued creating

noise pollution and did not follow the condition that no nuisance

will be created in the rented premise, thus, the petitioner filed an

application dated 21.09.2007 (Annexure-4) under section 9 of the

Rajasthan Rent Control, Act, 2001 (for short "the Act of 2001")

before the Rent Tribunal Bikaner. Thereafter the respondents filed

a reply to the application and denied the facts mentioned by the

petitioner. The petitioner filed the rejoinder to the reply; The

petitioner also filed affidavits of himself, Shanker Lal and

Mahaveer Prasad in support of the application. Further the

respondent No.3 and respondent No.4, Ganesh and Manoj Kumar

also filed their affidavits.

5. After considering the pleadings and evidence led by both the

parties, the Rent Tribunal Bikaner vide order dated 16.11.2012

(Annexure-14) allowed the application filed by the petitioner u/s 9

of the Act of 2001 and respondent No.3 and 4 were directed to

vacate the shop in question. Aggrieved by the order dated

16.11.2012 the respondents No.3 and 4 preferred an appeal

before the Appellate Rent Tribunal, Bikaner and vide order dated

(4 of 10) [CW-6720/2014]

04.03.2014 the Appellate Rent Tribunal, Bikaner allowed the

appeal filed by the respondents No. 3 and 4 and quashed the

order dated 16.11.2012 passed by the Rent Tribunal Bikaner.

Thus aggrieved by the order dated 04.03.2014 (Annexure-15), the

petitioner prefers the present writ petition.

6. Learned counsel for the petitioner submits that the a perusal

of the rent-deed of the shop in question shows that the shop was

given to the respondent-tenant for doing barber business and

there is a specific condition in the rent-deed dated 20.02.1982

that the respondent No 3- tenant will not create any nuisance in

the shop but the respondent No.3 closed the business of barber

and started a new business of flour mill at a different premise i.e.

at Bothra chowk and sublet the shop in question/rented premise

to respondent No. 4 his son. The respondent No. 4 started

business of Dj Sound and is creating noise pollution which is

creating various health problems for the petitioner and his family

and thus, the respondents have violated the conditions of the

rent-deed therefore the petitioner is entitled for getting the

possession of the shop in question vacated as per the provisions

of the section 9 of the Act of 2001 and the conditions of the rent-

deed dated 20.02.1982.

7. Learned counsel for the petitioner further submits that the

Rent tribunal vide order dated 16.11.2012 by perusing the

documentary evidence has held that nuisance was created by the

respondent No.4 while doing the business of DJ sound in the shop

in question and learned Appellate Tribunal without appreciating

(5 of 10) [CW-6720/2014]

the findings of the Rent Tribunal has allowed the appeal filed by

the respondent No 3 and 4 which deserves to be quashed. He also

submits that as per section 9(d) of the Act of 2001 if the tenant

creates any nuisance or does any act which is inconsistent with

the purpose for which he was admitted to the tenancy of the

premises then the landlord is entitled for eviction of the tenant

and from the perusal of evidence led by the petitioner it is clear

that the respondents have created noise pollution and nuisance

by way of using Dj sound.

8. Learned counsel for the petitioner also submits that the

respondents have also violated the provisions of section 9(k) of

the Act of 2001 which provides that if the premises have not been

used without reasonable cause otherwise for the purpose for

which they were let for a continuous period of six months

immediately preceding the date of the petition, then the landlord

is entitled for eviction of the tenant. Thus the impugned order

dated 04.03.2014 (Annexure-15) deserves to be quashed and set

aside.

9. Learned counsel for the petitioner also submits that the

petitioner and his wife are both old aged people and due to high

level of noise pollution made by the respondents the petitioner is

suffering from various health problems and diseases and are

facing inconvenience, and also their grandson Govind Soni has

failed in the secondary examination in the year 2009 and is

suffering due to the nuisance and disturbance created by the

respondent No.3 and 4.

(6 of 10) [CW-6720/2014]

10. Per contra learned Senior Counsel for the respondent

submits that no documentary evidence has been filed by the

petitioner regarding the illness and, moreover, no doctor has

been examined with regard to the disease or any health issues

suffered by the petitioner-landlord and his family. He further

submits that no documentary evidence or examination result has

been filed by the petitioner to prove that the grandchildren of the

petitioner have failed in the examination. He also submits that two

witnesses namely PW2 Shankarlal and PW3 Mahaveer prasad have

not deposed regarding creating nuisance whereas DW 3 Ganesh

and DW 4 Manoj Kumar have been examined by the respondent-

tenant on which the Rent Tribunal did not give any observation

even when they are the neighbouring shopkeepers.

11. Learned Senior Counsel for the respondent further submits

that the Rent Tribunal observes that nuisance was created by the

respondents by way of DJ sound, whereas regarding the same no

cross-examination of PW3 Mahaveer Prasad was done therefore

the Rent Tribunal cannot come to a conclusion that the

respondents are creating nuisance as PW3 Mahveer Prasad in his

chief-examination has not stated if nuisance was created as a

result of DJ sound. He further submits that the Rent Tribunal has

considered Section 133 CrPC proceedings as corroborative

evidence whereas the petitioner has not filed any documentary

evidence in regard to the same, thus the writ petition deserves to

be dismissed.

(7 of 10) [CW-6720/2014]

12. Learned Senior Counsel for the respondent also submits that

it has been wrongly stated by the petitioner that the shop in

question was given for rent only for three months. He also

submits that the respondents-tenant never agreed to the clause

no 6 of the rent-deed that the respondent will never create any

nuisance. The respondent has also never agreed that if he violates

any of the conditions of the rent-deed then he will be liable to

vacate the rent premises. He further submits that the petitioner

has wrongly stated that any kind of disturbance is caused to the

petitioner or his wife and that they are having health issues or

that the petitioner's grandchildren are getting disturbed in their

studies because of the DJ sound because the petitioners

themselves have a DJ Sound shop and moreover, the shop of the

respondents gets closed early around 8pm, thus, the contentions

of the petitioners are baseless and unreliable.

13. Learned Senior Counsel for the respondents also submits

that the shop in question was taken by respondent No. 3 on rent

as a Karta for the Joint Hindu family thus it cannot be said by the

petitioner-landlord that the shop was sublet by the respondent

No.3 to his son Vijay Kumar respondent No. 4. He further submits

that the shop in question was let out on rent not only for barber

business but was taken on rent for carrying out any type of

business which the respondent-tenant wished to do and thus

clause 3 has been wrongly incorporated in the rent-deed as any

type of business could be done and thus the tenant is not

restricted only to the business of barber shop. He also submits

that the clause 6 regarding nuisance has been wrongly mentioned

(8 of 10) [CW-6720/2014]

in the rent-deed and it is wrongly stated by the petitioner-landlord

that the playing of DJ creates any kind of nuisance.

14. Learned Senior Counsel for the respondent further submits

that the alternate shop regarding which the petitioner states that

the respondent is running a flour-mill is the paternal/ancestral

house of the respondent-tenant. He also submits that the

respondents have no knowledge regarding the petitioner having

filed a complaint U/S 133 CRPC before Sub Divisional Magistrate,

(North) Bikaner and also did not receive any summons regarding

the same.

15. Heard Learned counsel for the parties; perused the material

available on record and the judgments cited at the Bar.

16. The learned Rent Tribunal, Bikaner, based on the pleadings

of the parties, framed following issues:-

"(1) fd D;k oknxzLr ifjlj vizkFkhZ la[;k ,d us vizkFkhZ la[;k nks dks mi fdjk;snkjh ij ns fn;k\ (2) fd D;k oknxzLr ifjlj esa vizkFkhZ U;wlsal iSnk djrk gS\ (3) fd D;k izkFkhZZ la[;k ,d dks viuh vko";drk gsrq vU; i;kZIr ifjlj miyC/k gS\"

17. This Court finds that the learned Rent Tribunal Bikaner, while

deciding issue No.2 in favour of the petitioner, observed that the

respondent No.4 has committed nuisance while playing DJ in loud

voice. In this regard, the petitioner has produced PW-2 Shankar

Lal and PW-3 Mahaveer Prasad. PW-2 Shankar Lal, in his

statement, deposed that the respondent No.4 used to play DJ till

10.00 p.m. and whenever somebody came, the same was

stopped. PW-3 Mahaveer Prasad, in his examination-in-chief, has

(9 of 10) [CW-6720/2014]

deposed that the petitioner and his wife are old-aged persons,

aged about 70 years and there was always a scuffle in regard to

the nuisance and that he was seeing this scuffle for the last 10-12

years. This witness (PW-13, Mahaveer Prasad) has not been

cross-examined by the respondents and thus, the statement of

PW-3 Mahaveer Prasad remained uncontroverted.

18. This Court also finds that the learned Rent Tribunal also

observed that the petitioner produced a copy of the complaint filed

under Section 133 Cr.P.C., in which also, and from a perusal of

the same, it is clear that the police submitted the complaint before

the SDM, Circle Bikaner on finding that the nuisance was being

created by the respondent No.4 while playing DJ in loud voice. The

learned Rent Tribunal also observed that the plea of the

respondents that the petitioner himself is having a shop of DJ

cannot be accepted as this cannot give them right to create

nuisance. The learned Rent Tribunal, therefore, decided the issue

No.2 in favour of the petitioner while considering the material and

evidence on record, particularly in view of the fact that the

testimony of PW-3 Mahaveer Prasad remained uncontrovered.

19. This Court further finds that the rent-deed (Annex.1) entered

between the petitioner and the respondent-tenant, there was a

categorical condition No.6 that the respondent-tenant shall not

create any nuisance in the premises in dispute and thus, the

respondent's averment that the said condition in the rent-deed

was not accepted by him and that the said condition in the rent-

deed has been wrongly included in the rent-deed by the petitioner

(10 of 10) [CW-6720/2014]

is not acceptable as the respondent-tenant has not challenged the

rent-deed and the same was signed willfully by both the parties

and thus, it has been found that the respondent-tenant has

blatantly violated the condition No.6 of the rent-deed by creating

nuisance in the premises in dispute.

20. In view of the aforesaid submissions, this Court observes

that the petitioner has been able to prove that the respondents

were creating nuisance while playing DJ in loud sound, particularly

in view of the fact that the testimony of PW-3 Mahaveer Prasad

remained uncontrovered, who has categorically deposed that the

respondents used to play DJ loudly, which was creating nuisance

and that there was a regular scuffle in this regard for the last 10-

12 years.

21. In view of the above, the writ petition deserves to be and is

hereby allowed. The impugned order dated 04.03.2014

(Annex.15), passed by the learned Rent Appellate Tribunal,

Bikaner in Appeal Decree No.120/2012 is quashed and set aside

and the order of the learned Rent Tribunal dated 16.11.2012

(Annex.14) passed in Civil Original Case No.104/2007 is restored.

22. The stay application and all other pending applications, if

any, stand disposed of accordingly.

(DR. NUPUR BHATI),J 143-/skm/-

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