1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CIVIL WRIT PETITION No.2229/2008 [GIRDHARI LAL VS. BHAGWAN SRI SATYA NARAYAN TEMPLE TRUST] Date of Judgment : 08.04.2008. HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.R.K.Rathi for the petitioner. ***** This writ petition is directed against the order passed by the Rent Tribunal, Churu dated 13.09.2005 as well as by the Rent Appellate Tribunal, Churu dated 05.02.2008 wherein order of eviction has been passed against the petitioner on ground of default of payment of rent. Learned counsel for the petitioner submits that there was no default in submission of the rent inasmuch as the entire due rent was deposited in the bank account of non-petitioner on 27.10.2004 itself i.e. before filing of the application under Section 9 of the Rent Control Act, 2001 by the non-petitioner. It is contended that so far as the petitioner is concerned, he received notice under Section 9 of the Act of 2001 only when it was published in the newspaper on 26.10.2004 and on the next day itself, the entire rent was deposited in the bank account. Referring 2 to the facts mentioned, in the notice published in the newspaper it is contended that petitioner had not earlier received any notice said to have even sent through registered post on 06.05.2004 and on 15.07.2004 and in any case when the non-petitioner had issued notice in newspaper then it was clearly with the intention for extention of time for deposition of amount of rent and in view of that when the necessary amount of rent was deposited on 27.10.2004 itself, both the Tribunal below committed an illegality in holding that there was a default in tendering the rent by the petitioner and thereby passing the order of eviction. It is also contended that the petitioner without any default deposited even the enhanced rent as was determined, thus petitioner had no intention to commit any default in making payment of rent. I considered the submission of the learned counsel for the petitioner and perused the record. The argument of learned counsel for the petitioner is that the first notice for deposition of rent was given to on 06.05.2004 (Ex.6) but not served on the petitioner thus not only Ex.6 and even subsequent registered notice dated 15.07.2004 was also not served, thus the only notice to be taken into consideration is the notice was published in the newspaper dated 26.10.2004 and in view of the above, the petitioner has not committed any default as entire due amount was deposited on 27.10.2004 itself i.e., within the period of one day after publication of the notice in the newspaper. The contention 3 aforesaid was not accepted by the Tribunals below as petitioner fail to prove that the notice Ex.6 dated 05.06.2007 was not refused to accept by him and the endorsement of the postman thereupon showing refusal to take notice by the petitioner is incorrect. The petitioner had not produced post man in evidence to prove his contention and all such facts have been noticed carefully by the courts below hence the finding of the fact arrived at by the Rent Tribunal and upheld by the Appellate Tribunal shows that when the first notice was issued on the petitioner through registered post on 05.06.2004 it was not accepted and thereby treating it to be crucial for determining a period of thirty days, as provided under Section 9f of the Act of 2001, the court came to the conclusion that there is a clear default of petitioner in deposition of rent. In view of the above, so far as finding of fact regarding non- acceptance of the two notices i.e. dated 05.06.2004 and 15.07.2004 by the petitioner is concerned, there being no material to show that the conclusions drawn by the Tribunals below are unjust and improper and otherwise the finding of fact cannot be interfered by this court while exercising jurisdiction under Article 227 of the Constitution of India the first argument of the petitioner cannot be accepted. The further contention of the learned counsel for the petitioner 4 that even if it is presumed that notices dated 05.06.2004 and 15.07.2004 is treated to be served on the petitioner by deeming friction on account of refusal to accept the notice by the petitioner then also subsequent notice published in the newspaper is clear extention of time for deposition of the amount and as such if the last notice is taken into consideration there is no default in tendering the rent. The aforesaid argument is considered in the light of the provisions of Section 9. For ready reference Section 9 is quoted hereunder:- “9.EVICTION OF TENANTS:- Notwithstanding anything contained in any other law or contract but subject to other provisions of this Act, the Rent Tribunal shall not order eviction of tenant unless it is satisfied that:- (a) the tenant has neither paid nor tendered the amount of rent due from his for four months: Provided that the ground under this clause shall not be available to the landlord if he has not disclosed to the tenant his bank account number and name of the bank in the same municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due: Provided further that no petition on the ground under this clause shall be filed unless the landlord has given a notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the date of service of notice; [b] the tenant has wilfully caused or permitted to be caused substantial damage to the premises; or 5 [c] the tenant has without written permission to the landlord made or permitted to be made any construction which has materially altered the premises or is likely to diminish the value thereof; or [d] the tenant has created a nuisance or has done any act which is inconsistent with the purposes for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's interest therein; or [e] the tenant has assigned, sub-let or otherwise parted with the possession of the whole or part of the premises without the written permission of the landlord.” Perusal of Section 9 reveals that it does not provide that if landlord gives more than one notice then thirty days period has to be counted from the date of last notice hence in absence of such a provision, argument of the petitioner cannot be accepted inasmuch as when notice dated 05.06.2004 was sent through registered post and petitioner refused to accept the notice, it is due acknowledgment, thus the requirement of Section 9 is completed. In that case even if after issuance of the first notice under Section 9 other notices are given, it should mean that there is extention of the time of thirty days. In my opinion, the Tribunal has rightly taken into consideration the first notice for determination of issue as to whether there is default in payment of rent or not. Thus, there is no reason to interfere in the finding of the Tribunals and otherwise concurrent finding of the fact 6 cannot be interfered by this Court under Article 226 of the Constitution. In view of the above, I do not find any merit in the petition filed by the petitioner. The writ petition is dismissed in limine. (MUNISHWAR NATH BHANDARI), J. mamta