(1) Nand Lal Vs. Smt. Roshan Prabha & Another IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.6940/2008. (Nand Lal Vs. Smt. Roshan Prabha & Another) DATE OF ORDER : November 6th, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. R.K. Thanvi for the petitioner. BY THE COURT : In this writ petition, the petitioner has prayed for quashing order Annex.-7 dated 09.07.2008 whereby the Rent Tribunal, Udaipur rejected the application filed by the petitioner under Section 21 (3) and Section 32 of the Rent Control Act, 2001, read with Section 151 C.P.C. It is further prayed that the original application of respondent No.1 filed before the Rent Tribunal may be ordered to be rejected. Brief facts of the case are that a suit was filed for eviction (2) Nand Lal Vs. Smt. Roshan Prabha & Another on certain grounds by respondent No.1 in which the ground of bona fide necessity of her was taken and the civil Court decreed the said suit on 01.05.1995. Against the said judgment and decree passed by the civil Court an appeal was preferred by the petitioner. During the pendency of the appeal an application for amendment of the written statement was filed by the petitioner before the appellate Court and the same was allowed by the appellate Court. Respondent No.1 had filed a rejoinder to the amended written statement filed by the petitioner before the learned appellate Court and the appellate Court, in the appeal arising out of the earlier suit, framed issues and the order of framing of the issues by the appellate Court was challenged by the petitioner by way of filing revision petition before this Court and the said revision petition was decided on 05.05.2003. Further, the appellate Court in compliance of the order passed by this Court in the revision petition again heard arguments and by its order dated 12.09.2003 some more issues were framed and the case was remanded to the trial Court being Civil Judge (Jr. Dn.), (South), Udaipur for adjudication. After remand of the case by the appellate Court, an application was filed by respondent No.1 for withdrawing the earlier suit from the Civil Court with the liberty to file original application before the Rent (3) Nand Lal Vs. Smt. Roshan Prabha & Another Tribunal because the Rajasthan Rent Control Act, 2001 was promulgated and remedy was provided by way of filing application before the Rent Tribunal. Respondent No.1 was granted permission to withdraw the earlier suit and to file original application before the Rent Tribunal. Thereafter, respondent No.1 filed the original application before the Rent Tribunal for eviction against the petitioner. According to the petitioner, in the original application, new grounds were incorporated which were not in existence in the earlier suit, therefore, against the original application filed before the Rent Tribunal, Udaipur, an application under Section 21 (3), read with Section 32 of the Rent Control Act and Section 151, C.P.C. was filed by the petitioner for rejecting the original application. In the application so filed by the petitioner it is specifically stated that respondent No.1 had withdrawn her suit looking to Section 32 of the Rent Control Act which provides that the litigant can withdraw the suit and file original application within 270 days from the date of withdrawal of the suit. Further it is also provided under Section 32 (3) of the Act of 2001 that such original application may after withdrawal of the suit shall be deemed to have been filed on the date when the civil suit for (4) Nand Lal Vs. Smt. Roshan Prabha & Another eviction had been filed. Therefore, as per learned counsel for the petitioner, the intention of inserting the said provision is that the present original application stands filed in place of the suit before the another forum but its continuity shall be deemed to be from the date the suit was filed before the civil Court under Rajasthan Premises (Eviction & Control of Rent) Act. Therefore those grounds which were available on the date of filing the suit could only be agitated and no new grounds can be inserted in view of the provision of Section 32. Learned counsel for the petitioner while inviting attention of the Court towards the application filed under Section 21 (3), read with Section 32 (3) of the Rent Control Act argued that respondent No.1, in para 10.10 of the original application, specifically mentioned her cause of action arising for filing the original application with effect from a15.04.1986 and that was the cause of action shown in the earlier suit for eviction. Therefore, as per the petitioner, respondent No.1 could file the original application only in respect of the subject-matter of the suit which obviously includes the ground of eviction. Learned counsel for the petitioner vehemently argued that by way of filing the present application for eviction before the Rent Tribunal, after withdrawal of the earlier suit, new ground of (5) Nand Lal Vs. Smt. Roshan Prabha & Another bona fide necessity of her son has been incorporated; meaning thereby, respondent No.1 indirectly wants to extinguish the remand order passed in the earlier suit by the appellate Court which is not permissible. As per learned counsel for the petitioner, the respondent landlord could not base her original application on the grounds different from the grounds raised in the earlier suit, therefore, the original application filed on other grounds which were not in existence in the earlier suit and the original application deserves to be rejected but the learned Rent Tribunal has failed to consider all these aspects of the matter and rejected the application filed by the petitioner vide the impugned order dated 09.07.2008. Learned counsel for the petitioner vehemently argued that there is no question of entertaining such application on new ground after withdrawal of the earlier suit, therefore, the learned Rent Tribunal, Udaipur has committed grave error of law while rejecting the application filed by the petitioner for rejection of the original application filed against the petitioner by the respondent No.1 because Section 32 (3) clearly speaks that respondent No.1 cannot be permitted to go against the pleadings, subject-matter and averments of the earlier suit nor such averments may be held admissible in the earlier suit. (6) Nand Lal Vs. Smt. Roshan Prabha & Another Therefore, the impugned order cannot be sustained and deserves to be quashed. I have perused the impugned order and, so also, relevant provisions of Section 21 (3) and Section 32 of the Rent Control Act, 2001. In this case, it is nowhere disputed by the petitioner that any objection was raised by him at the time of withdrawal of the earlier suit and for granting liberty to file the original application before another forum created under the Rent Control Act, 2001. Further, it is obvious from the record that after withdrawal and before filing the original application, a notice was given by the respondent No.1 in which it was informed by respondent No.1 to the petitioner that now bona fide necessity of the premises has also occurred for her son, therefore, she will file original application on this ground also. Meaning thereby, before filing original application, a notice was given by respondent No.1 to the petitioner with regard to the new cause of action which arose during the pendency of the earlier suit and before filing of the original application in question. But, no reply whatsoever was given by the petitioner to the respondent. Therefore, while observing this fact, the learned trial Court considered it appropriate that the original application can be filed upon new (7) Nand Lal Vs. Smt. Roshan Prabha & Another grounds also to avoid multiplicity of litigation. So also, it is observed that no prejudice will be caused to the petitioner because by way of filing reply to the original application he can take his defence in the trial. Further, it is also observed by the Rent Tribunal that upon perusal of Section 32 it is nowhere expressly provided that in the event of filing fresh application after withdrawal of the earlier suit no new ground can be taken by the applicant. Meaning thereby, when there is no specific bar incorporated by the legislature under Section 32 of the Rent Control Act, then, in my opinion, the learned Rent Tribunal has rightly rejected the application filed by the petitioner under Section 21 (3) read with Section 32 (3) of the Rent Control Act. In this view of the matter, I see no reason to interfere in the order impugned passed by the Rent Tribunal, Udaipur upon the application filed by the petitioner for rejection of the original application filed by the respondent landlord. Consequently, this writ petition is summarily dismissed. (Gopal Krishan Vyas) J. Ojha, a.