1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.8414/2008 {Babu Lal & Others Versus Civil Judge (SD) & Others} Date of Order :: 27th August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Ajay Gupta for the petitioners Mr. Anoop Dhand for the respondents BY THE COURT: Admit. Mr. Anoop Dhand appears for contesting respondents no. 2 to 8. The respondent no.1 is only a formal party, therefore, its service is dispensed with. 2. Heard learned counsel for the parties. 3. This writ petition on behalf of defendant-petitioners is directed against the impugned order dated 2nd August, 2008 passed by the trial court, whereby their application dated 16th April, 2008 has been rejected. 4. The plaintiff-respondents filed a suit for ejectment and recovery of arrears of rent in the trial court, which was allowed as withdrawn vide order dated 24th September, 2003 with liberty to file a fresh suit. The plaintiff-respondents filed the fresh suit after terminating the tenancy of defendant 2 under Section 106 of Transfer of Property Act. During the pendency of the suit, the defendant- petitioners filed an application under Order 7 Rule 11 CPC to dismiss the suit on the ground that a liberty was granted to plaintiff to file the suit under the provisions of new Rent Control Act of 2001, but the suit has been filed for dispossession after serving a notice under the provisions of Section 106 of T.P. Act. The application was rejected by the trial court, which was challenged before this Court by defendant-petitioners by way of revision petition, but the same was also dismissed. The defendant-petitioners filed the present application dated 16th April, 2008, wherein it was prayed that now new Rent Control Act, 2001 has been made applicable on municipal area, Sri Madhoupr and a Notification has also been issued, therefore, plaintiff be directed to initiate the eviction proceedings under the provisions of new Act of 2001 and proceedings of the present suit be stayed. The application was contested by the plaintiff by filing reply dated 23rd April, 2008. The trial court rejected the application of the petitioners vide order dated 2nd August, 2008, which is impugned in this writ petition preferred on 3 behalf of the defendant. 5. The learned counsel for the petitioners submitted that the Rajasthan Rent Control Act, 2001 was amended by the Rajasthan Rent Control (Second Amendment) Act of 2005, which came into force w.e.f. 22nd February, 2006, by which the provisions of the Act of 2001 have been made applicable in municipal areas having the population of less than 50,000/- also. Sri Madhopur also falls within this category, therefore, the Act of 2001 has been made applicable and, therefore, present suit cannot be allowed to continue and trial court committed an illegality in rejecting the application. 6. The learned counsel for the respondents defended the impugned order and contended that the petitioner is habitual in making such applications from time to time. The earlier application filed of the same nature under Order 7 Rule 11 CPC has already been dismissed by the trial court and order of the trial court was upheld by this Court. He further contended that the amendment made in the Act of 2001 from February, 2006 is prospective in nature and it cannot be made applicable on the present suit, therefore, the 4 trial court rightly rejected the application of the petitioners. 7. I have considered the submissions of learned counsel for the parties and examined the impugned order passed by the trial court. The trial court has observed that earlier application under Order 7 Rule 11 CPC filed by the petitioners was dismissed on 1st June, 2004 and the same order was upheld by the High Court also and further that issue no.5 has already been framed in this regard and the said issue will be decided alongwith the main suit itself. The trial court has further observed that rent tribunal has not been constituted for Sri Madhopur municipal area, therefore, the new Act cannot be made applicable in Municipal Area, Sri Madhopur. So far as order of the trial court about earlier application under Order 7 Rule 11 CPC is concerned, it is sufficient to mention that the said order was on another submission of the petitioners to the effect that earlier suit was allowed to be withdrawn with liberty to file a fresh suit under the provisions of new Act, whereas the present suit has been filed after serving a notice under the provisions of Section 106 of the T.P. Act, therefore, the said order is not relevant. So 5 far as issue no.5 is concerned, it is in respect of other objection regarding maintainability of the suit and not in respect of present objection regarding applicability of the new Act of 2001 w.e.f. February, 2006. 8. After considering the submissions of learned counsel for the parties and further that the matter is already fixed for final arguments since 12th July, 2007, therefore, instead of examining the impugned order, I think it fit and proper to direct the trial court to decide the matter finally as early as possible. It will be open for the defendant- petitioners to raise the same point which has been raised by way of this application, at the time of final arguments of the case and in case the said submission is advanced, then the trial court will decide the said submission about applicability of the provisions of Act of 2001 in municipal area, Sri Madhopur and what is the effect of it, while deciding the case finally. The matter is going on in the trial court for final arguments for last more than one year, therefore, I direct the trial court to decide the suit finally within a period of one month from the date of submission / receipt of order of this Court. 6 9. With the aforesaid observations and directions, the writ petition stands disposed off with no order as to costs. (NARENDRA KUMAR JAIN),J. DK