Allowed

Arun Kumar and Ors. v. Ganga Shanker Solanki and Anr.

Rajasthan HC2 Feb 2009SAW/108/2009

Case brief

AI extract

What is this about?

The Court allowed the special appeal and the writ petition, holding that the provision requiring filing of a tenant's reply under Section 15(3) of the Rajasthan Rent Control Act, 2001, is directory. Consequently, the reply was ordered to be taken on record upon payment of costs.

What did the court decide?

The order dated 15.3.08 of the Rent Tribunal was set aside; the reply filed by the appellants was ordered to be taken on record on payment of Rs. 2,000/- as costs.

Arun Kumar and Ors. Vs Ganga Shanker Solanki and Anr. — Landlord and Tenant | Rajasthan HC (2009)

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Arun Kumar & Ors. vs. Ganga Shanker Solanki & Anr. (D.B.CIVIL SPECIAL APPEAL NO.108/09) 1

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Arun Kumar & Ors. vs. Ganga Shanker Solanki & Anr. (D.B.CIVIL SPECIAL APPEAL NO.108/09)

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Date of Judgment :- 2.2.2009.

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HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA

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Mr. Kailash Trivedi, for the appellants. Mr. Gordhan Lohar, for the respondents.

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Heard learned counsel for the parties.

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This appeal is directed against the order dated 10.7.08 passed by the learned Single Judge, whereby the writ petition preferred by the writ petitioner, respondent no.1 herein, assailing the validity of order dated 15.3.08 passed by the Rent Tribunal,Jodhpur in Rent Petition No. 250/07 has been dismissed.

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The relevant facts in nutshell are that the respondent no.1landlord preferred a petition against the appellant-tenant under the provisions of Section 9 of the Rajasthan Rent Control Act, 2001( in short “the Act of 2001” hereinafter) for his eviction from the suit premises. A notice issued by the tribunal was served upon the appellants on 21.9.07. In pursuance thereof, the counsel for the appellants appeared before the learned tribunal on the next date fixed in the matter i.e. 25.10.07 and filed the power on their behalf. A reply to the petition was filed on behalf of the appellants on 13.3.08 alongwith an application for condonation of delay. In application preferred,the appellants

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Arun Kumar & Ors. vs. Ganga Shanker Solanki & Anr. (D.B.CIVIL SPECIAL APPEAL NO.108/09) 2

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had taken the stand that the reply could not be filed within the time stipulated u/s 15 (3) of the Act of 2001 on account of illness of son of non applicant no.3 Smt. Anita, the appellant no. 3 herein .The learned tribunal on the basis of material on record arrived at the finding that there is no sufficient evidence to show that son of non-applicant no. 3 had fallen ill. Accordingly, vide order dated 15.3.08, the learned tribunal rejected the application preferred on behalf of the appellants for condonation of delay and thus, declined to take the reply on record.

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In view of the provisions of Section 15(3) of the Act 2001, which provides that the tenant may submit his reply , affidavit and documents after serving the copies of the same to the petitioner within a period not exceeding 45 days from the date of the service of the notice, the learned Single Judge opined that the learned tribunal has committed no error or illegality warranting interference by this court in exercise of its extra ordinary jurisdiction under Article 227 of the Constitution of India. Accordingly, the writ petition has been dismissed.

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It is contended by the learned counsel for the appellants that the learned Single Judge has seriously erred in dismissing the writ petition treating the provision of Section 15(3) of the Act of 2001 providing for filing of the reply by the tenant within a period not exceeding 45 days from the date of service of the notice to be mandatory. The learned counsel submitted that on

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Arun Kumar & Ors. vs. Ganga Shanker Solanki & Anr. (D.B.CIVIL SPECIAL APPEAL NO.108/09) 3

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the facts and in the circumstances of the case, in the interest of justice, the reply filed by the appellants deserves to be taken on record inasmuch as, they cannot be condemned unheard.

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Per contra, the learned counsel appearing on behalf of the respondent no. 1 while reiterating the contentions raised before the learned Single Judge submitted that the provisions of Section 15(3) of the Act of 2001 are mandatory in nature therefore, the reply filed beyond the period prescribed cannot be taken on record. That apart, the learned counsel submitted that the appellants have not been able to show any sufficient cause for condonation of delay therefore, the learned Single Judge was absolutely justified in declining to interfere with the order passed by the learned tribunal.

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We have considered the rival submissions and perused the material on record.

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It is settled position of law that the law of procedure should not ordinarily be construed as mandatory inasmuch as, the object of providing procedure is to advance the cause of justice and not to defeat it. If a strict adherence to the procedure prescribed results in inconvenience or injustice then, the provision providing for such procedure has to be construed liberally so as to meet the ends of justice.

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Moreover, in the matter of Ramesh Kumar vs. Chandu Lal

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& Anr. (D.B.C.Special Appeal No.1132/08) decided vide

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Arun Kumar & Ors. vs. Ganga Shanker Solanki & Anr. (D.B.CIVIL SPECIAL APPEAL NO.108/09) 4

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judgment dated 14.1.09, this Court has taken the view that the provision contained in sub-section (3) of Section 15 of the Act of 2001 is directory . Further while considering the various provisions of the Act of 2001 in the said decision, this court has observed as under:-

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“It is true that the Act of 2001 prescribes the time frame for different stages of the proceedings so as to secure an early and expeditious disposal of the lis between the landlord and tenant but then, it is fundamental principle of natural justice that the defence of a party to the proceedings before all courts ,judicial bodies and constitutional authorities must always be fairly heard. Moreover, the procedure provided for the trial of the suit and miscellaneous proceedings for finding out the truth and impart the justice between the parties cannot be construed in a manner which results in cause of justice being defeated. However, the delaying tactics adopted by the erring party to the proceedings cannot be countenanced by the court and as laid down by the Hon'ble Supreme Court , time beyond the period specified cannot be extended by the court as a matter of course and the power to extend can be exercised by the court by way of an exception on the sufficient cause being shown by the party in default. But then, on the extension being granted, the other party has to be compensated by way of payment of cost for the delay and inconvenience caused.”

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Keeping in view the position of law settled by this court as above and considering the totality of the facts and circumstances of the present case, in our considered opinion, so as to subserve the cause of justice, the reply filed by the appellants deserves to be taken on record.

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In the result, the special appeal is allowed. The order under appeal is set aside. The writ petition is allowed. The order

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Arun Kumar & Ors. vs. Ganga Shanker Solanki & Anr. (D.B.CIVIL SPECIAL APPEAL NO.108/09) 5

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dated 15.3.08 passed by the learned tribunal is set aside . The delay in filing the reply is condoned . The reply to the petition filed on behalf of the appellants before the learned tribunal is ordered to be taken on record on payment of cost a sum of Rs.2,000/- by the appellants to the respondent no.1.

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(SANGEET LODHA),J. (A.M.KAPADIA),J.

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Aditya/-

Arun Kumar and Ors. v. Ganga Shanker Solanki and Anr.

Case brief

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Arun Kumar and Ors. v. Ganga Shanker Solanki and Anr.

Case brief

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