The petitioner challenged the Rent Tribunal's order finding no non-user of a tenanted shop. The Court found the petitioner failed to adduce cogent evidence. It dismissed the writ petition, holding there was no occasion to interfere under Article 227.
The writ petition failed and was dismissed; no relief granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1120/2016
Nem Prakash Khandaka Huf S/o Late Shri Sardarmal Khandaka, B/c Khandaka Jain, D-192, Jagdish Marg, Bani Park, Jaipur Rajasthan
----Petitioner
Versus
Somani Trading Company Through Its Partners,
----Respondents
For Petitioner(s) : Mr. Saransh Saini
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
02/01/2020
This writ petition has been filed by the petitioner against the judgment dated 17.10.2015 passed by Appellate Rent Tribunal, Jaipur Metropolitan in Appeal No. 150/2013, whereby it dismissed the appeal filed by the petitioner and affirmed the order dated 21.9.2013 passed by Rent Tribunal, Jaipur Metropolitan in Original Application No. 754/2005, whereby although the application of the petitioner under Section 6 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as “the Act of 2001”) has been partly allowed; and rent of the tenanted premises has been revised from Rs. 150/- per month to Rs. 513/- per month w.e.f. 1.4.2003, (payable from the date of filing the application),
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certificate of recovery has been issued, but the application filed by the petitioner qua Section 9 of the Act of 2001 has been dismissed.
Facts of the case are that on 22.11.1972 the petitioner rented out the a shop No. D-50, Chandpole Mandi, Outside Chandpole Gate, Jaipur to the respondents @ Rs. 150/- per month. The petitioner filed an application under Section 6 and 9 of the Act of 2001 against the respondents before the Rent Tribunal, Jaipur Metropolitan, Jaipur. The respondents filed reply to the said application.
On the basis of pleadings of the parties, the Rent Tribunal framed 4 issues. Evidence was led by both the parties and after hearing the arguments, the Rent Tribunal, Jaipur vide its order dated 21.9.2013 revised the rent of the tenanted premises from Rs. 150/- per month to Rs. 513/- per month w.e.f. 1.4.2003, (payable from the date of filing the application) and certificate of recovery was issued in favour of the petitioner. However the application of the petitioner qua Section 9 of the Act of 2001 was dismissed.
Aggrieved therefrom, the petitioner filed an appeal before the Appellate Rent Tribunal, Jaipur. The Appellate Rent Tribunal, Jaipur vide its judgment dated 17.10.2015 dismissed the appeal and affirmed the order dated 21.9.2013 passed by the Rent Tribunal.
Hence, the present writ petition has been filed.
Learned counsel for the petitioner has mainly focused his argument on the issue regarding non user of the tenanted premises and submits that the learned Rent Tribunal and also the Appellate Rent Tribunal while deciding the issue no.3 failed to take
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into consideration the statement of independent witnesses of the petitioner and even the statement of PW-3 Dev Prakash Khandaka. He has further submitted that the petitioner categorically pleaded that the shop in question continuously remained closed for more than one year from the date of filing the original application and no business was carried out by the tenant respondent therefrom. Even in the affidavits of the witnesses, the specific statement / deposition was made and in the crossexamination as well it was clearly mentioned that the shop in question remained closed for more than one year prior to the filing of the original application and no business was carried out therefrom. However, the Rent Tribunal as also the Appellate Rent Tribunal have misconstrued the pleadings and on this count, the impugned order and judgment are liable to be quashed and setaside.
Heard. Considered.
The Rent Tribunal having considered the material at length, found that no photograph or any other documentary evidence was produced by the petitioner which could show that for which period the tenanted premises remained closed. Rather the petitioner Nem Prakash in his cross-examination stated that the shop in question was lying closed since 1.4.2005 whereas the application under the Act of 2001 was filed in July, 2005. The respondents denied the non user of the tenanted shop and stated the same to be in continuous use and occupation. They also submitted Ex. A-9 and A-10 Insurance Policy of the tenanted shop. In this view of the matter, the stand taken by the petitioner that the tenanted shop was not used continuously 6 months prior to the filing of the original application was not found to be tenable.
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In absence of any cogent and clinching evidence with regard to non user of the tenanted premises, there is no occasion for this court to interfere with the impugned judgment in the exercise of its jurisdiction under Article 227 of the Constitution of India.
The petition fails and the same is dismissed.
(PRAKASH GUPTA),J
DK/1
3 issues framed by the court
Whether the High Court should interfere with the Rent Tribunal's finding that the tenanted premises were in continuous use due to lack of cogent evidence regarding non-user.
Whether the High Court can exercise its jurisdiction under Article 227 to set aside the impugned order finding no deficiency in evidence on the issue of non-user.
Whether the writ petition challenging the dismissal of the application under Section 9 of the Rent Control Act should be allowed.
3 provisions across 2 enactments
Nem Prakash Khandaka Huf
Somani Trading Company
Gopal Krishan Somani
Giriraj Prasad
Prakash Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
