Lrs Of Kanhaiya Lal And Ors vs Lrs Of Dhanraj And Ors. ...
2023 Latest Caselaw 8308 Raj

[2023:RJ-JD:34505]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 8755/2017

Legal Heirs Of Late Shri Kanhaiya Lal S/o Shri Mangi Lal, By Caste Dhobi, R/o 4-E-337, Jai Narain Vyas Colony, Bikaner:

1. Sunil Kumar S/o late Sh. Kanhaiyalal

2. Radha Devi Wd./o late Sh. Kanhaiyalal r/o Jai Narain Vyas Colony, Bikaner.

---Petitioner Versus

1 Legal Heirs Of Late Shri Dhanraj S/o Late Shri Mangalchand, By Caste Modi, R/o 4-D-20, Jai NarainVyas Colony, Bikaner: 1/1 Kailashchand S/o late Shri Mangalchand, b/c Modi, r/o Harijan Basti, Bikaner.

 1/2    Omprakash S/o late Shri Dhanraj
 1/3    Indra D/o late Shri Dhanraj
 1/4    Basanti D/o late Shri Dhanraj
 1/5    Veena D/o late Shri Dhanraj
 1/6    Suchitra D/o late Shri Dhanraj

All by caste Modi, r/o 4-D-20, Jai Narain Vyas Colony, Bikaner.

2. The Rent Tribunal, Bikaner.

3. The Rent Appellate Trbunal, Bikaner.

                                                                   ----Respondents


For Petitioner(s)            :    Mr. S.S. Ladrecha
For Respondent(s)            :    Mr. Sheetal Kumbhat



               HON'BLE DR. JUSTICE NUPUR BHATI

                                   Judgment

10/10/2023

1. The present writ petition has been filed under Article 226 and

227 of the Constitution of India with the following prayers:-

"1. The impugned order dated 18.5.2014 (Annex.13) passed by the Rent Tribunal as well as the impugned judgment dated 26.5.2017 (Annex.15) passed by the Rent Appellate Tribunal whereby

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issue No.1 has been decided in favour of the plaintiff-respondent and against the defendant- petitioner may very kindly be quashed and set aside;

2. Accordingly, petition filed by the plaintiff-

respondent before the Rent Tribunal may very kindly be didsmissed; and

3. Any other relief/reliefs which this Hon'ble High Court may deem just and proper in the circumstances of the case, may kindly be granted in favour of the petitioner."

2. The brief facts of the case are that the respondents-plaintiffs

filed a petition (Annex.1) under Section 9 of the Rajasthan Rent

Control Act, 2001 (for short, 'the Act of 2001') for eviction of the

petitioners-defendants from the shop on the ground of bonafide

necessity and default in payment of rent. It was stated that the

rent of the shop in question is Rs.6250/- became due for the

period April 2006 to 31 January, 2007, which was neither tendered

by the petitioners-defendants nor was paid and, therefore, a

Notice dated 26.02.2007 was sent to the petitioners-defendants

mentioning the bank account details of State Bank of India,

Gangashahar Road, Bikaner bearing A/c No.900979050, which

was received by the petitioners-defendants on 27.02.2007.

3. The petitioners-defendants filed reply (Annex.2) to the said

petition stating therein that the rent of the shop is Rs.200/- per

month and after revision of the rent the petitioners were

depositing the rent in the bank A/c No.996, SBBJ, Bank, Jai Narain

Vyas colony. However, with malafide intention, the respondents-

plaintiffs closed the said account and did not inform about the new

bank account and the petitioners-defendants sent a Notice dated

28.06.2006 but the details of the bank account were not provided.

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It was also stated that no Notice dated 26.02.2007 was received

by the petitioners-defendants.

4. During the pendency of the above-said petition, the

respondents-plaintiffs filed an application under Order 6 Rule 17

CPC, which was allowed by the learned Rent Tribunal vide order

dated 29.05.2012 (Annex.3). The petitioners-defendants filed

amended reply to the petition (Annex.4).

5. On 19.03.2008, the learned Rent Tribunal framed four issues

(Annex.5A), which reads as under:-

"1& fd D;k vizkFkhZ us oknxzLr ifjlj dk fdjk;k 625@& : izfr ekg dh nj ls vizsy 2006 ls tuojh 2007 rd dk izkFkhZ }kjk Hksts x, uksfVl ds ckn ,d ekg esa vnk ugha djds O;frdze fd;k gS?

2& fd D;k izkFkhZ dks vius iksrs yhyk/kj gsrq oknxzLr ifjlj dh ;qqfDr;qDr o ln~Hkkfod vko";drk gS? 3& fd D;k vizkFkhZ dks vius dkjksckj gsrq vU;= i;kZIr ifjlj miyC/k gS?

4& vuqrks'k?"

6. The Rent Tribunal, vide order dated 18.05.2013 (Annex.13)

decided issue No.1 in favour of the respondents-plaintiffs and

issue Nos.2 and 3 were decided against the respondents-plaintiffs

and allowed the petition filed by the respondents-plaintiffs who

were held entitled to get vacant possession of the shop in question

and were also entitled to get rent as per the rent-review order

dated 05.05.2005.

7. Being aggrieved by the order dated 18.05.2013 (Annex.13),

the petitioner-defendants preferred an appeal before the Rent

Appellate Tribunal which too was dismissed vide judgment dated

26.05.2017 (Annex.15) while upholding the findings given on

issue No.1.

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8. Hence, being aggrieved by the order dated 18.05.2013

(Annex.13) passed by the Rent Tribunal and the judgment dated

26.05.2017 (Annex.15), passed by the Rent Appellate Tribunal,

the petitioners-defendants have preferred the present writ

petition.

9. Learned counsel for the petitioners made the following

submissions:-

(a) That the learned Rent Tribunal and Appellate Tribunal has

failed to appreciate the submission made on behalf of the

petitioner-defendant that the Notice dated 26.02.2007 sent by the

respondents-plaintiffs was actually not received by the petitioners-

defendants and the signature alleged to be made on the A/D was

forged. The petitioners-defendants also moved the application for

obtaining report from the hand-writing expert but the same was

dismissed by the Rent Tribunal in a cursory manner and thus, has

committed illegality while deciding issue No.1. The learned Rent

Appellate Tribunal also, while deciding the appeal has not

considered this aspect of the matter.

(b) That the petitioners-defendants were depositing the rent in

the bank account provided by the respondents-plaintiffs but all of

a sudden, the said account was closed and no details of bank

account was provided by them. The petitioners-defendants also

sent a Notice in this regard, even then the required details were

not provided. The learned Rent Tribunal and the learned Rent

Appellate Tribunal, without considering all these aspects of the

matters, decided the issue No.1 against the petitioners-defendants

and passed the order of eviction and thus, has committed serious

illegality and irregularity.

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(c) That the petitioners-defendants moved an application under

Order 41 Rule 27 CPC before the learned Rent Appellate Tribunal

for taking on record the report of the hand-writing expert obtained

by them but the said application was dismissed erroneously and

thus, the learned Rent Appellate Tribunal has committed grave

error in dismissing the appeal.

(d) That the learned Rent Tribunal and the learned Rent

Appellate Tribunal both have committed grave error of facts and

law in not considering the fact that in the plaint the respondents-

plaintiffs mentioned the bank account details of his Account as

No.12183 whereas in para No.10(2) of the plaint, the bank details

of A/c No.9009749050 of State Bank of India, Gangashahar Road,

Bikaner and thus, the respondents-plaintiffs themselves were not

interested in receiving the rent and the petitioners-defendants

were not having knowledge of the bank account.

(e) That the learned Rent Tribunal, merely placing reliance upon

the Notice dated 26.02.2007, decided issue No.1 in favour of the

respondents-plaintiffs, which has resulted in failure of justice. The

learned Rent Appellate Tribunal also did not consider this aspect of

the matter in true perspective and thus, committed grave error

while deciding the appeal.

(f) That issue Nos.2 and 3 regarding bonafide need in have been

decided in favour of the petitioners-defendants then there was no

need of deciding issue No.1 against them as it was an admitted

position that soon after receipt of Notice of the application under

Section 9 of the Act of 2001, the petitioners-defendants deposited

Rs.10,000/- and thus, it cannot be said that there was any default

of payment of rent.

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10. Per contra, learned counsel for the respondents-plaintiffs

submitted as under:-

(a) That the respondents-plaintiffs served a Notice under Section

9A of the Act of 2001, which provides that the defaulted rent

should be deposited within a period of 30 days from the date of

receipt of Notice. In the case in hand, the Notice was served upon

27.02.2007 and the rent was required to be deposited up to

27.03.2007 but admittedly, the petitioners-defendants have failed

to do so and thus, the learned Rent Tribunal as well as the learned

Rent Appellate Tribunal have rightly decided issue No.1 in favour

of the respondents-plaintiffs and have rightly passed the order of

eviction.

(b) That the application filed by the petitioners-defendants for

obtaining report of the hand-writing expert was rightly dismissed

by the learned Rent Tribunal as the same was filed at the stage of

final hearing. The petitioners-defendants were having knowledge

of signatures on A/D and if there was any doubt about the said

signature, then this objection could have been raised at an early

stage and thus, now, at this stage, the petitioners-defendants

cannot raise this issue. Further, the learned Tribunal rightly held

that the report of an expert is required if the Court cannot

compare the same. In the case in hand, the A/D, on which the

signature was there and there were ample documents on which

the signature of Kanhaiyalal was there, then there was no

requirement of obtaining report of hand-writing expert .

(c) The learned Rent Appellate Tribunal also rightly dismissed

the application filed under Order 41 Rule 27 CPC for taking on

record the report of hand-writing expert obtained by the

[2023:RJ-JD:34505] (7 of 8) [CW-8755/2017]

petitioners-defendants as this fact was in the knowledge of the

petitioners-defendants from beginning but no evidence was

produced in this respect before the learned Rent Tribunal and

since the documents were not to be sent for examination of the

hand-writing expert, then there cannot be any question for taking

on record of the report of the hand-writing expert.

11. Heard learned counsel for the parties and perused the

material available on record.

12. This Court observes that the Appellate Tribunal vide its order

dated 26.5.2017 (Annex.15) while dealing with the submission of

the petitioner that the petitioner did not receive Notice (Exhibit-1)

has held that upon perusal of record, it is evident that PW-1

Dhanraj in his statement has stated that Notice (Exhibit-1) was

duly served upon the petitioner by way of registered-post, for

which postal-receipt (Exhibit-2) and receipt receiving the same

(Exhibit-3) had been placed on record. Further the petitioner's

contention that the signatures on the said Notice were forged

signatures is also not sustainable as the Notice was received by

one Kanhaiya Lal, who is the uncle of the petitioner.

13. This Court further observes that the Rent Tribunal and the

Appellate Rent Tribunal have given a specific finding that the

petitioner has failed to show that the address mentioned in Notice

(Exhibit-1), postal-receipt (Exhibit-2) and registered-A/D (Exhibit-

3) is not of the petitioner and, thus, the petitioner has utterly

failed to show that the said Notice (Exhibit-1) was not received by

the petitioner.

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14. This Court also observes that despite service of Notice

(Exhibit-1), the petitioner did not deposit rent of Rs.625/- on

monthly basis for the period from April, 2006 to January, 2007

within a period of one month and the said rent was deposited after

a period of more than four months, thus, the petitioner has failed

to demonstrate that the petitioner had duly paid rent to the tune

of Rs.625/- on monthly basis for the period from April, 2006 to

January, 2007 within a period of one month from the date of

receipt of such Notice (Exhibit-1).

15. This Court further observes that this Court while exercising its

powers under Article 227 of the Constitution of India cannot

convert into a Court of appeal and cannot re-appreciate the

evidence. Since the concurrent findings of fact and law as arrived

by the Rent Tribunal and the Appellate Rent Tribunal are based on

the material and evidence available on record, thus, this Court

does not find any infirmity with the order dated 18.5.2013

(Annex.13) passed by Rent Tribunal and the order dated

26.5.2017 (Annex.15) passed by the Appellate Rent Tribunal.

16. In view of the aforesaid discussion, the writ petition being

bereft of merit is dismissed. No order as to costs. Stay application

as well as all pending applications, if any, stands dismissed.

(DR. NUPUR BHATI),J 69-/skm/-

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