CW 1884/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1884/2008 Satish Jain Versus Radhey Mohan Sharma & Ors. Date of Order ::: 17/07/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Abhay Jain, for petitioner (tenant) Mr. Bharat Yadav, for respondent (plaintiff). Matter has come up on application U/Art.226(3) of Constitution seeking vacation of interim order dt.29/02/08, hence at request, matter was finally heard at admission stage. Instant petition has been filed by tenant (defendant) assailing judgments dt.04/08/06 (Ann.1) of Rent Tribunal, Jaipur (Org. Appl.R. 78/04) and so also dt.07/02/08 (Ann.2) of Appellate Rent Tribunal, Jaipur City dismissing Appeal (Rent)-64/2006. Respondent No.1 (Plaintiff) filed a suit U/s 6 & 9 of Rajasthan Rent Control Act, 2001 (“Rent Act”) on 05/01/04 seeking revision of rent and eviction on the ground of default in payment of rent, as well as reasonable & bonafide personal need of suit premises. After pleadings of parties, the Rent Tribunal framed six issues as quoted in para 6 of writ petition ad infra : (i)Whether the tenant has committed default of not tendering the rent CW 1884/08 //2// from 01/07/97 and therefore, has committed default in payment of rent ? (ii)Whether the premise is required reasonably & bonafidely by landlord ? (iii)Whether the tenant has created nuisance as contemplated in para 10(a) of application ? (iv)Whether the tenancy is of Rs.1500/- per month from January, 1997 ? (v)Whether the suit premises was on rent @ Rs.700/- per month from starting ? (vi)Relief ? After recording of the evidence on record, the Rent Tribunal recorded the finding as regards Issue NO.4 & 5 that since landlord was not able to prove about the rent as alleged by him except that the rent of Rs.700/- was agreed by tenant; as such the Tribunal held the rent of suit premises as Rs.700/- per month in the year 1996. As regards Issue NO.1, the Tribunal recorded finding that notice (Ex.15) was served upon tenant on 28/11/03 while rent of Rs.3,500/- was deposited by him on 10/03/04 which was much after 30 days of notice served (Ex.15). The Tribunal took note of evidence on record including of DW1- Satish Jain (tenant) who in his cross examination deposed that whenever he remained unemployed, was CW 1884/08 //3// not able to make regular monthly rent and similarly his wife Smt.Asha Jain (Dw2) in cross examination supported to aforesaid version of her husband. It was further deposed that on 10/03/04, a sum of Rs.3,500/- was deposited and thereafter Rs.2800/- for 4 months' rent were not deposited. Finally, the Tribunal recorded the finding that the rent was neither paid nor tendered by tenant within thirty days of notice as provided U/s 9(a) of Rent Act. As regards Issue NO.2 in respect of reasonable and personal need, the Tribunal recorded a finding that suit was filed on 05/01/04 while one of property in the name of wife of landlord was sold in August, 2000 and except the premises in dispute, he has no other premise for his own need despite he was residing in the same city of Kota in rented premises. As regards issue No.3 in respect of nuisance, it was decided in favour of tenant. However, finally the suit was decreed with the direction to the tenant to vacate suit premises and hand over peaceful vacant possession whereof to the landlord within three months and would continue to pay monthly rent determined by the Tribunal vide judgment & decree dt.04/08/06, against which petitioner preferred appeal. Rent appellate Tribunal affirmed the findings recorded by rent Tribunal CW 1884/08 //4// and consequently dismissed the appeal on 07/02/08. After the notice was issued by this Court, decree passed by Rent Tribunal was stayed vide interim order dt.29/02/08. Counsel for petitioner vehemently submits that as regards notice dt.24/11/03 (Ex.15) served upon tenant on 28/11/03, as referred to by Tribunal while examining issue NO.1, the rent in fact was Rs.700/- while the plaintiff demanded Rs.1500/- as monthly rent in the notice served (Ex.15), which being not in compliance of S.9(a) was defective; thus even if petitioner has failed to pay agreed rent within thirty days of notice served, it could not be said to be a ground of default as considered by Tribunal. In support, Counsel placed reliance upon decision of Apex Court in Chimanlal Vs. Mishrilal (1985(1)SCC 14). Counsel further submits that even the finding recorded in regard to issue of bonafide personal need, is also perverse and is not supported by material on record that after filing of the suit on 05/01/04, landlord had sold his property and it cannot be said that there was any bonafide need for him to seek eviction of present petitioner; and issue NO.2 was arbitrarily decided against petitioner. In support, Counsel CW 1884/08 //5// placed reliance of decision of Apex Court in Shakuntala Bai Vs. Narayan Dass (2004(5) SCC 772). Counsel further submits that U/s 21(2) of Rent Act, documents filed by parties have to be separately and distinctly exhibited in case of plaintiff as Ex.1 while in case of defendant as Ex.A.1. Without such documents being distinctly exhibited and marked, very procedure followed by Tribunal in instant case while passing the decree in favour of plaintiff is contrary to S.21(2) of Rent Act. Finally Counsel alternatively submits that atleast some time be granted to the petiti0oner (tenant) so that he may be able to find out alternative accommodation. Counsel for respondent (plaintiff) while supporting the finding recorded by Rent Tribunal and Appellate Tribunal, submits that there being concurrent finding of fact, this Court would not like to sit as appellate authority in limited scope of judicial review U/Art.226 & 227 of the Constitution; inasmuch as petitioner has failed to show any perversity in the concurrent finding of fact recorded by Rent Tribunals, which may call for interference. I have considered rival contentions of Counsel for the parties and with their CW 1884/08 //6// assistance, examined material on record. As regards factual matrix, from material on record, it certainly remains uncontroverted about legal notice dt.24/11/03 being served upon petitioner (tenant) on 28/11/03 fulfilling requirement U/s 9 (a) of Rent Act, petitioner was under obligation to make payment of agreed rent within thirty days from notice being served; which indisputably petitioner failed to deposit, that can certainly be a ground of eviction on having committed default in payment of rent which is one of the grounds U/s 9 of Rent Act. Submission of petitioner that as regards monthly rent referred to in notice (Ex.15) Rs.1,500/- while as per the finding recorded under Issue NO.4 & 5, it was Rs.700/- per month being defective notice; is of no substance for the reason that it was never the case of tenant before Tribunal that monthly rent referred to in the notice in any manner has substantially affected his right in depositing the rent and even as per statement of tenant (Dw1), he deposited the rent @ Rs.700/- per month but he never came forward to deposit the rent of Rs.700/- per month after notice was served which he agreed to be so in his statement, which was considered to be agreed rent for being deposited CW 1884/08 //7// within thirty days of notice being served. However, it was never the plea raised by petitioner before the Tribunal or Appellate Tribunal. Judgment on which counsel for petitioner placed reliance in Chimanlal Vs. Mishrilal (supra) is of no assistance for the reason that it was a case where notice was served upon tenant with the description of rent property referred to in the notice which did not relate to entire accommodation let out to tenant but it related only to lesser part of the property while rent was being demanded in respect of part of the property but entire shop was sought to be let out. Apex Court finally observed that there being substantial discrepancy in the rented premises and the rent demanded, it was considered to be fatal; whereas in instant case, notice (Ex.15) was for rented premises and only fact disputed was in respect of the rent demanded and the object of S.9(a) of Rent Act is that if rent has not been paid of four months within thirty days of notice served, it can be a valid ground of eviction. It was never the case of petitioner before the Tribunal that because of higher rent being demanded by plaintiffs it has substantially affected him in determining the rent which has to CW 1884/08 //8// be deposited – in absence whereof, this Court does not find any manifest error in the findings recorded under issue NO.1. Further submission made on behalf of petitioner with respect to personal necessity that plaintiff sold the property after filing of the suit, therefore, change having taken place, thereafter cannot be considered as bonafide need of landlord as pleaded by plaintiff, is also of no substance for the reason that since while deciding issue NO.2 only material having come on record was in respect of the property sold in August, 2000 which was in the name of wife of plaintiff while present suit was filed on 05/01/04. Nothing has come on record on which it could be inferred that there was any property which plaintiff sold after filing of instant suit. This Court does not find any perversity in the findings recorded by Rent Appellate Tribunal. Judgment relied upon by Counsel for petitioner in Shakuntala Bai Vs. Narayan Dass (supra) on the basis of factual matrix is of no assistance. Further submission made by Counsel for petitioner that the Tribunal failed to comply with S.21(1) of Rent Act since exhibits were not marked of plaintiff & defendant as provided therein, is bereft of merit for the reason that CW 1884/08 //9// S.21 only lays down the procedure for holding trial, but that will not affect the decree of learned Tribunal. It is settled by Apex Court in a catena of decisions that High Court while exercising power of judicial review does not act as an appellate authority while exercise power of of judicial review U/Art.226 & 227 of the Constitution and is only confined to correct errors of law and procedural law if results in manifest miscarriage of justice or in violation of principles of natural justice; but it does not mean to adjudicate on merits on appreciation of evidence on record. Lastly Counsel for petitioner submits that time may be granted for vacating the suit premises as he has no alternative accommodation at present where he could shift. Counsel for respondent has not made any submission as regards consent for granting time to vacate rent premises but submits that after dismissal of appeal way back on 07/02/08, the tenant is enjoying rent premises. However, it has come on record that the petitioner remained unemployed thereby he failed to deposit monthly rent regularly. Keeping in view his unemployment, it may be difficult for CW 1884/08 //10// him to immediately shift to other accommodation. Consequently, writ petition fails and is hereby dismissed. However, this Court considers it appropriate to extend the time as granted vide decree of eviction impugned and the petitioner shall handover vacant and peaceful possession of the rented premises in compliance of decree of eviction impugned alongwith arrears of rent on or before 31/12/2009, and during intervening period, would also continue to pay monthly rent as determined vide decree impugned, failing which, respondent (plaintiff) will be free to execute the decree in accordance with law. No costs. (Ajay Rastogi), J. K.Khatri/p.10/1884CW08Jul17Rnt.doc