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Parshav Nath JaIn Mandir Trust Vs. Avtar Singh - Court Judgment

LegalCrystal Citation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No.58 of 2011
Judge
Reported in2012AIR(Raj)39
AppellantParshav Nath JaIn Mandir Trust
RespondentAvtar Singh
Excerpt:
.....learned trial court has rejected its application under o. 7, r. 11, c.p.c. for rejecting the civil suit filed by the plaintiff tenant avtar singh seeking specific performance of the compromise entered into between these two parties in an earlier eviction suit filed by the defendant trust as landlord against the present plaintiff, who was defendant tenant in that suit. 2. in eviction suit no.113/2005 filed before the rent tribunal, jodhpur, a compromise was arrived at between the parties that the defendant tenant would handover the possession of the plot of land in his possession as tenant measuring 45’ * 65’ to the plaintiff landlord and in turn after construction of shop measuring 12’ * 25’ on the portion of said plot shall be given back to the defendant tenant.....
Judgment:

1. The present revision petition has been filed by defendant Parshav Nath Jain Mandir Trust being aggrieved by the order dated 12-1-2011, whereby, the learned trial Court has rejected its application under O. 7, R. 11, C.P.C. for rejecting the civil suit filed by the plaintiff tenant Avtar Singh seeking specific performance of the compromise entered into between these two parties in an earlier eviction suit filed by the defendant Trust as landlord against the present plaintiff, who was defendant tenant in that suit.

2. In eviction suit No.113/2005 filed before the Rent Tribunal, Jodhpur, a compromise was arrived at between the parties that the defendant tenant would handover the possession of the plot of land in his possession as tenant measuring 45’ * 65’ to the plaintiff landlord and in turn after construction of shop measuring 12’ * 25’ on the portion of said plot shall be given back to the defendant tenant on the tenancy of Rs. 200/- per month, which rent would be subject to increase in accordance with the provisions of Rent Control Act, 2001. Accordingly, the said suit No. 113/2005 (Parshav Nath Jain Mandir Trust v. Avatra Singh) was disposed of by the learned Trial Court on 7-7-2005.

3. The present suit No.184/2006 was filed by the plaintiff Avtar Singh before the learned trial Court with the case that instead of shop measuring 12’ * 25’ with mezzanine floor, the defendant landlord has given him possession of only shop measuring 10’ * 20’ and, therefore, the defendant Trust should handover the possession of remaining area so that compromise decree dated 7-7-2005 passed in the earlier eviction suit may be fully and substantially performed by the defendant Public Trust.

4. In the said subsequent suit No.184/2006, the defendant landlord filed an application under O.7. R. 11 C.P.C. for rejection of the suit inter alia on two grounds that said civil suit was barred by law in view of S.18 of the Rajasthan Rent Control Act, 2001 since no civil Court has jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matter connected therewith and ancillary thereto and only the Rent Tribunal constituted under the said Act of 2001 has the exclusive jurisdiction. Another ground taken in the application under O.7.R.11. C.P.C. was that the suit filed for specific performance is beyond the period of limitation of six months prescribed under Section 6 of the Specific relief Act, 1963.

5. The learned trial Court has rejected the said application under O. 7, R. 11, C.P.C. by the impugned order dated 12-1-2011 and being aggrieved of the same,  the defendant Trust has filed the present revision petition before this Court.

6. Mr. J.K. Ranga, learned counsel appearing for the petitioner defendant submitted that in view of the non obstante clause of S.18(1) of the Rent Control Act, the present suit purportedly filed for specific performance of the agreement, which is actually noting but execution of earlier compromise decree, is barred by law and, therefore, the learned trial Court has erred in rejecting the application under O.7.R.11, C.P.C. He further submitted that the present dispute of purportedly handing over lesser area of shop to the tenant under the earlier compromise decree dated 7-7-2005 is nothing but a dispute between the parties as lanndlord and tenant for which the exclusive jurisdiction lies before the Rent Tribunal and no civil Court shall have the jurisdiction to hear and decide such petition relating to dispute between the landlord and tenant. In the alternative, he submitted that the suit filed for specific performance of said compromise decree s an agreement is beyond the period of limitation of six months prescribed under S.6(2) of the Specific Relief Act, 1963 and consequently, the suit itself is ex-facie barred and does not deserve to be tried by the learned trial Court.

7. On the other hand, Mr. R. S. Thanvi, learned senior counsel assisted by Mr. Narendra Thanvi submitted that the present suit is maintainable and S. 18 of the Act does not bar the suit for specific performance of the agreement, which is a compromise decree dated 7-7-2005 and undoubtedly since the defendant Trust had already filed written statement in the said suit, the same can be tried after evidence is lead by the parties after issues are framed and at the most the question of limitation and jurisdiction can be framed as preliminary issues by the learned trial Court.

8. Having heard the learned counsels, this Court is of the opinion that the learned trial Court has erred in rejecting the application under O.7, R.11, C.P.C. filed by the defendant Trust. Section 18 of the Rent Control Act,2001, which is reproduced below for ready reference, would clearly show that under a non obstante provision, the exclusive jurisdiction had been vested in the Rent Tribunal and civil Court’s jurisdiction had been excluded to hear and decide the petitions relating to the disputes between landlord and tenant and even incidental and ancillary matters connected therewith have to be filed under the provisions of this Act and should be tried and decided by the Rent Tribunals. The purpose of excluding the jurisdiction of civil Court obvious that when specialized Tribunals have been created under the said Act and they can try and decide all such disputes between the landlord and tenant, the burden of civil Courts should be taken off and specially created Tribunals manned by judicial officers should try and decide such disputes.

“18. Jurisdiction of Rent Tribunal._

(1) Notwithstanding, anything contained in any other law for the time being in force, in the areas to which this Act extends, only the Rent Tribunal and no civil Court shall have Jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and matters connected therewith and ancillary thereto, filed under the provisions of this Act :

Provided that Rent Tribunal shall, in deciding such petitions to which provisions contained in Chapter II and III of this Act do not apply, have due regard to the provisions of Transfer of Property Act, 1882 (Act No.4 of 1882) the Indian Contract Act, 1872 (Act No.9 of 1872),  or any other substantive law applicable to such matter in the same manner in which such law would have been applied had the dispute been brought before a civil Court by way of suit.

Provided further that nothing contained in this Act shall be deemed to empower the Rent Tribunal to entertain a petition involving such dispute between landlord and tenant to which provisions of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Act No.2 of 1965) and the Rajasthan Premises (Requisition and Eviction) Ordinance, 1949 apply.

(2) Where the petition only for recovery of unpaid rent or arrears of rent is filed, the time schedule and procedure enumerated in S.14 shall mutatis mutandis apply to such petition.

(3) Where the petition for recovery of possession is filed in respect of the premises or tenancies to which the provisions of Chapter II and III of this Act do not apply, the time schedule and procedure enumerated in S.15 shall mutatis mutandis apply to such petition.

(4) A petition shall be instituted before the Rent Tribunal, within the local limits of whose jurisdiction – the premise is situated.”

9. In the present case, admittedly, there was a compromise decree in an eviction suit filed by the plaintiff Trust on 7-7-2005 unhanded over by the tenant to the landlord and on a portion thereof a shop measuring 12’ * 25’ was to be constructed by the Trust and to be handed over to the tenant on a fresh tenancy of Rs. 200 per month. It was so done but  there is dispute between the parties that lesser area was given to the tenant than the one agreed in the compromise on 7-7-2005. Therefore, undoubtedly, the dispute was arising between the parties as landlord and tenant and their relationship as landlord and tenant, which earlier existed, remains the same and in view of S. 18 (1) of the Act of 2001 no such dispute between the landlord and tenant and matters incidental and ancillary thereto have to be tried and decided exclusively by the Rent Tribunal and jurisdiction of civil Court is completely barred.

10. The contention of learned counsel for the respondent plaintiff tenant that present suit is for specific performance and, therefore, is not covered within the scope of Rent Control Act, 2001 is misconceived. Merely titling the suit as suit for specific performance, which is substance seeks resolution of dispute between the parties as landlord and tenant cannot oust the jurisdiction of Rent Tribunal or confer jurisdiction upon the civil Court is the fact of non obstante provision of Section 18(1) of the Act of 2001, reproduced above.

11. The question of limitation may be   mixed question of fact and law but in the fact of clear bar of jurisdiction of civil Court, the present suit filed by the tenant, purportedly as a suit for specific performance, which in the opinion of this Court is nothing but in the form of execution of earlier compromise decree dated 7-7-2005, is nothing but an effort to overcome the question of limitation and jurisdiction on the part of plaintiff-tenant. The said subsequent suit No.184/2006 only seeks resolution of dispute between the parties under the relationship of landlord and tenant and the averment made in the plaint, copy of which is placed at Annex.1, clearly show that such relationship between the parties is admitted even by the plaintiff, therefore, this Court cannot appreciate the reasons for which such a suit under the title ‘a suit for specific performance’ was filed by the tenant in a civil Court bypassing the remedy available to him before the Rent Tribunal constituted under the provisions of the Rajasthan Rent Control Act, 2001. It is needless to add that power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit before conclusion of trial and this was so held by the Supreme Court in this was so held by the Supreme Court in the case of Saleem Bhai and Ors. V. State of Maharashtra and Ors. (2003) 1 SCC 557: (AIR 2003 SC 759). The relevant extract of the said judgment is reproduced herein for ready reference:-

“The trial Court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit – before registering the plant or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under Rule 11 (a) and (d) of Order 7 CPC, the averments in the plant are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant t that stage. Therefore,a  direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The trial Court’s order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity.

The case are therefore, remitted to the trial Court for deciding the application under Order 7 Rule 11 CPC on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law.

12. Therefore, the mere fact that said application was filed after filing of the written statement by the defendant Trust does not mean that such application has to be rejected and issues are required to be framed.

13. In the present case, admittedly, the trial has not even begun and issues are yet to be framed, therefore, filing of the application under Order 7 Rule 11 CPC by the defendant Trust was absolutely proper and this Court is of the opinion the learned trial Court erred in rejecting the said application and not rejecting the civil suit No.184/2006 (Avtar Singh v. Parshav Nath Jain Mandir Trust), which was ex-facie barred by the law under the provisions of Section 18(1) of the Act of 2001.

14. Consequently, this revision petition is allowed and setting aside the impugned order dated 12-1-2011 passed by the learned trial Court, the application under Order 7 Rule 11 CPfiled by the defendant Trust stands allowed and s a consequence, civil suit No. 184/2006 (Avtar Singh v. Parshav Nath Jain Mandir Trust) pending in the Court of Addl. Civil Judge No.2, Jodhpur shall be treated as dismissed. No order as to costs.

Revision allowed.


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