Mr. S.C. Gupta, appearing for the tenant as the
petitioner in this writ petition has submitted that there was no
evidence of any probative worth before the rent tribunal or for
that matter before the appellate rent tribunal to hold that the
notice dated 12.05.2006 in terms of proviso II Section 9(a) of the
Act of 2001 was served on the tenant on 15.05.2006. He
submitted that in fact the notice was served on 23.05.2006 and
the deposit of due rent for the period in issue upto 30.04.2006
having been admittedly made on 16.06.2006 was not well in time
and within 30 days provided for by law. He submitted that the
specific case of the tenant was overlooked by the tribunals
without good cause. His further submission is that even as per
the best case of the landlord, the notice having been served on
15.05.2006 and the rent due and outstanding for a period of 11
months having been deposited on 16.06.2006 by a mere delay of
two days, it was not a fit case for directing the eviction of the
tenant who is otherwise unprovided for and would be rendered
pernicious resulting from the loss of livelihood as the tenanted
premises is a shop. His submission is that the rent tribunal as
also the appellate rent tribunal ought to have taken a liberal
view, that this court should and condone two days' delay
dismissing the eviction petition laid by the landlord.
Mr. Swaraj Sharma, appearing for the landlord has
obviously supported the judgment passed by the rent tribunal on
21.07.2008 as affirmed by the appellate rent tribunal.
The fact of default under Section 9(a) of the Act of
2001 is inexcusable. The manner of determining a default has
been statutorily provided for and it has no variation. Effectively
the determination of the question as to whether the tenant is in
default under Section 9(a) of the Act of 2001 is an arithmetical
exercise. The tribunal has merely to see as to whether as on the
date of the notice, the contracted rent or rent due otherwise in
terms of the Act of 2001 was outstanding for more than four
months and whether a notice in regard thereto was issued by the
landlord to the tenant disclosing Bank account within the
municipal limits of the place where the tenanted premises are
situate and finally whether on receipt of notice the tenant paid
the outstanding due amount within 30 days of the receipt of the
notice. A liberal approach to the computation of the time in the
payment of rent subsequent to the receipt of notice of
outstanding rent cannot be warranted in the face of the statute.
Therefore the rent tribunal as also the appellate rent tribunal are
under a duty to approach the matter quite arithmetically with no
room at all for variation.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH
S.B. CIVIL WRIT PETITION NO.4641/2011
(Jagdish Kapoor Vs. Mohan Singh (dead) through LRs. & Anr.)
Date of Order :4 December, 2014
HON'BLE MR. JUSTICE ALOK SHARMA
Citation;AIR 2015 (NOC)365 Raj
This petition purporting to both under Articles 226 &
227 of the Constitution of India challenges the order dated
08.03.2011, passed by the Appellate Rent Tribunal, Kota
affirming the judgment of the Rent Tribunal, Kota passed on
21.07.2008
whereby
the
respondent-landlord-plaintiff's
(hereinafter “the landlord”) eviction petition under Section 9(a)
of the Rajasthan Rent Control Act, 2001 (hereinafter “the Act of
2001”) was allowed. The eviction of the petitioner-tenant-
defendant (hereinafter “the tenant”) directed on the ground of
default and a certificate of possession on rented premises—a
shop (hereinafter “tenanted premises”) was issued in favour of
the landlord.
I have heard the counsel for the parties and perused
the impugned judgments passed by the rent tribunal as also the
appellate rent tribunal.
Paraphrased Section 9(a) of the Act of 2001 provides
that eviction of a tenant can be directed by the jurisdictional rent
tribunal where the tenant neither pays, nor tenders the amount
of rent due from him for over four months within 30 days from
the receipt of notice for the purpose from the landlord
demanding the rent due and disclosing the Bank account within
municipal limit where the tenanted premises are situate, where
the rent could be deposited.
The case set up by the landlord against the tenant was
that the rent due for the period 01.06.2005 to 03.04.2006 had
not been paid. The period of the outstanding rent was 11 months
and the monthly rent of the tenanted premises was Rs.500/-. The
notice was sent on 12.05.2006 under Section 9(a) of the Act of
2001. Admittedly the last of the amount due for the period
aforesaid i.e. 11 months @ Rs.500/- per month was paid as per
the statement of tenant himself before the rent tribunal. on the
deposit of Rs.1,500/- in the disclosed bank account of the
landlord on 16.06.2006. The rent tribunal as also the appellate
rent tribunal held that as per the assertion of the landlord in his
eviction petition as also his affidavit in evidence in support
thereof and the cross-examination whereupon he remained
unshaken, the notice had been sent on 12.05.2006 and served on
15.05.2006. According to the tribunals below, the averments in
the eviction petition as also the assertion in the testimony of the
landlord were buttressed by Exhibit-4 which was a certificate
issued by the postal authority evidencing the fact that the
registered letter dated 12.05.2006 (article) had been delivered
on the addressee i.e. tenant on 15.05.2006. The rent tribunal as
also the appellate rent tribunal therefore held that the rent in
terms of proviso II Section 9(a) of the Act of 2001 had to be
deposited within 30 days of the receipt i.e. by 14.06.2006.
Admittedly as per the say of the tenant himself, the rent having
been deposited on 16.06.2006, it was quite apparently beyond
the 30 days interdict of law and therefore was sufficient to make
out a ground of default in the payment of rent by the tenant. So
holding, the eviction of the tenant was directed and certificate of
possession in favour of the landlord issued.
Mr. S.C. Gupta, appearing for the tenant as the
petitioner in this writ petition has submitted that there was no
evidence of any probative worth before the rent tribunal or for
that matter before the appellate rent tribunal to hold that the
notice dated 12.05.2006 in terms of proviso II Section 9(a) of the
Act of 2001 was served on the tenant on 15.05.2006. He
submitted that in fact the notice was served on 23.05.2006 and
the deposit of due rent for the period in issue upto 30.04.2006
having been admittedly made on 16.06.2006 was not well in time
and within 30 days provided for by law. He submitted that the
specific case of the tenant was overlooked by the tribunals
without good cause. His further submission is that even as per
the best case of the landlord, the notice having been served on
15.05.2006 and the rent due and outstanding for a period of 11
months having been deposited on 16.06.2006 by a mere delay of
two days, it was not a fit case for directing the eviction of the
tenant who is otherwise unprovided for and would be rendered
pernicious resulting from the loss of livelihood as the tenanted
premises is a shop. His submission is that the rent tribunal as
also the appellate rent tribunal ought to have taken a liberal
view, that this court should and condone two days' delay
dismissing the eviction petition laid by the landlord.
Mr. Swaraj Sharma, appearing for the landlord has
obviously supported the judgment passed by the rent tribunal on
21.07.2008 as affirmed by the appellate rent tribunal.
The fact of default under Section 9(a) of the Act of
2001 is inexcusable. The manner of determining a default has
been statutorily provided for and it has no variation. Effectively
the determination of the question as to whether the tenant is in
default under Section 9(a) of the Act of 2001 is an arithmetical
exercise. The tribunal has merely to see as to whether as on the
date of the notice, the contracted rent or rent due otherwise in
terms of the Act of 2001 was outstanding for more than four
months and whether a notice in regard thereto was issued by the
landlord to the tenant disclosing Bank account within the
municipal limits of the place where the tenanted premises are
situate and finally whether on receipt of notice the tenant paid
the outstanding due amount within 30 days of the receipt of the
notice. A liberal approach to the computation of the time in the
payment of rent subsequent to the receipt of notice of
outstanding rent cannot be warranted in the face of the statute.
Therefore the rent tribunal as also the appellate rent tribunal are
under a duty to approach the matter quite arithmetically with no
room at all for variation.
It is in this context that the rent tribunal approached
the evidence before it. The landlord had averred in his eviction
petition as also in his affidavit in evidence in support thereof that
the tenant had been in default in payment of rent due @ Rs.500/-
per month for a period of eleven months between 01.06.2005 to
30.04.2006. In support of his case, the landlord had also filed
inter alia the certificate (Exhibit-4) from the postal authority
evidencing the factum of the delivery of the registered notice
dated 12.05.2006 on the addressee i.e. the tenant at the
tenanted shop on 15.05.2006. The certificate (Exhibit-4) issued
by the postal authority is a public document in terms of Section
77 of the evidence Act. As against the evidence of the landlord,
the tenant's evidence was obviously lacking. Even though it was
admitted that the notice dated 12.05.2006 demanding payment
in the designated bank account of arrears due was indeed
received, the date of the receipt was not set out in the reply to
the eviction petition, nor was it averred in the affidavit in
evidence in support of the reply to the writ petition. In these
circumstances, the attempt of the tenant before the rent tribunal
in the course of the trial of the eviction petition to establish that
the notice dated 12.05.2006 had been received on 23.05.2006
was of no avail. Further the tenant admitted that the last of the
amount due upto 30.04.2006 was deposited on 16.06.2006 when
the 30 days period for deposit of rent due effective the receipt of
the
notice
dated
12.05.2006
on
15.05.2006
expired
on
14.06.2006. In these circumstances, the rent tribunal as also the
appellate rent tribunal in my considered opinion have not erred
in allowing the eviction petition laid by the landlord and issuing
a certificate of possession in his favour.
Mr. Gupta, counsel for the tenant also attempted to
establish that no amount of rent was due to the landlord from the
tenant. That to my mind cannot wash inasmuch as the tenant
himself in his cross-examination before the rent tribunal
admitted to the fact that the last of the amounts due under the
notice 12.05.2006 admittedly received by him were paid on
16.06.2006 when the time for payment of due amount in terms of
the notice dated 12.05.2006 had expired on 14.06.2006.
Aside of the aforesaid, the jurisdiction of this Court
either referable to its superintending powers under Article 227
of the Constitution of India or its extraordinary equitable
jurisdiction under Article 226 of the Constitution of India to
determining as to whether the orders passed by the statutory
fact finding tribunals / courts are perverse in nature and they
have occasioned manifest in justice. In my considered view,
neither of the two grounds can be made out in the instant
petition. The judgment and certificate of possession passed by
the rent tribunal on 21.07.2008 as affirmed by the appellate rent
tribunal are reasonable conclusions, if not the only conclusion in
the context of the state of evidence before them. The conclusions
aforesaid do not warrant any interference as they are neither
even remotely perverse nor vitiated by any misdirection in law.
The writ petition is therefore dismissed.
(ALOK SHARMA), J
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