1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL REVISION PETITION NO.23/2008. Vijay Chand Bumb and Another. VERSUS Smt.Kanchan Devi. 12.09.2008. HON'BLE MR.JUSTICE DALIP SINGH Mr.G.D.Parwal, for the petitioners. Mr.Ajeet Bhandari, for the respondent. ***** Heard learned counsel for the parties. The petitioner has challenged the order dated 24.10.2007 by which the application filed under Order 7 Rule 11 C.P.C. by the defendants-petitioners herein who are the tenants has been dismissed by the learned Rent Control Tribunal. The petitioners moved the application on account of the fact that in the plaint the plaintiff who is the landlord-applicant before the learned Rent Control Tribunal filed an application with the averments that on the one hand after the death of the father of the defendants, the petitioners herein did not acquire the protection of the statutory tenancy in view of the definition of “Tenant” in clause (ii) sub-clause (i) of Section 2 of the Rajasthan Rent Control Act, 2001 as the premises in question were let out for commercial purpose as the defendants-petitioners were not carrying on the business as the member of the family 2 of the deceased in the shop at the time of the death of the deceased-tenant. In view of the above, it has been averred in the plaint that the protection of the Rajasthan Rent Control Act, 2001 is not applicable to the defendants, at the same time, in the alternative, it has been pleaded that the decree for eviction may be passed on the ground of personal bonafide necessity of the plaintiff, in the event it is held that the defendants-petitioners are entitled to the protection of the Act of 2001. The submission of the learned counsel for the petitioner is that the plaintiff himself having alleged that the provisions of the Act of 2001 are not applicable in the present case, in view of the provisions contained in Section 18, the suit could not have been filed before the learned Rent Control Tribunal. The learned Tribunal having heard learned counsel for the parties by the impugned order dated 24.10.2007 dismissed the said application. Hence, this writ petition. Learned counsel for the petitioners has reiterated the same submissions which were made while arguing the application under Order 7 Rule 11 C.P.C. before the learned Rent Control Tribunal. I have considered the above submissions of the learned counsel for the petitioners. 3 So far as the contention of the learned counsel for the petitioner that the plaintiff himself having made an averment that the provisions of the Act 2001 are not applicable and, therefore, the suit is barred in terms of Section 18 of the Act of 2001 is concerned, to my mind the same is without force. The plaintiff in the suit has made two fold submissions. The first submission is that the protection of the Act is not available to the defendants-petitioners in as much as they do not fall within the statutory definition of “Tenant”, as contained in the Act on account of the fact that at the time of the death of the deceased-tenant, who is the father of the petitioners and who if alive would have been entitled to the protection of the Act and since the petitioners were not carrying on the business in the commercial premises as the member of his family, the petitioners do not enjoy the benefit of the Act. This is a fact which is to be determined by the learned Tribunal as to whether or not the defendants-petitioners were carrying on the business in the premises as the member of the family of the deceased-tenant upto his death. In case, the Tribunal comes to the conclusion that the petitioners are not entitled to the protection of the Act of 2001, the consequences thereof would follow. The alternative cause set up by the plaintiff is to the effect that in case, it is held that the defendants are the 'tenants', then a decree for eviction may be passed on the ground of personal bonafide necessity as contained in Section 9 clause (i) of the Act of 2001. 4 This is an alternative plea and not an inconsistent one. In that view of the matter, I am not inclined to interfere with the impugned order. In addition to the above, it may be stated that the written statement has been filed and issues have also been framed by the learned Tribunal and at that stage the application under Order 7 Rule 11 C.P.C. was rightly rejected by the learned Tribunal. Subject to the above, this writ petition is dismissed summarily. (DALIP SINGH),J. Solanki DS, Jr.P.A.