1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.. :: ORDER :: Rajendra Kumar & Ors. Vs. A.D.J., Banswara & Ors. S.B. CIVIL WRIT PETITION NO.2588/2006. Date of Order :: 29th June 2009. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. M.C. Bhoot, for the petitioners. Mr. R.K. Thanvi, for the respondent No.3. .... Reportable BY THE COURT : The application seeking immediate order for ejectment of the tenants from the demised premises (Case No.1/1997: Old No. 10/1996) as made by the respondent No.3 (hereinafter also referred to as 'the applicant' / 'the landlord') on 10.06.1996 with reference to the provisions of Section 16 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act' / 'the Act of 1950') came to be allowed by the Additional District Magistrate, Banswara on 13.05.1997 making an order for ejectment of the tenants from the suit premises. The order so passed on 13.05.1997 was challenged by the tenants under Section 16(11) of the Act of 1950 in Civil Revision Petition No. 1/2005 that came to be 2 dismissed by the Additional District Judge, Banswara by the impugned order dated 15.12.2005. Aggrieved, the tenants in the first place preferred a regular first appeal (CFA No. 77/2006) that was dismissed by this Court on 12.05.2006 as being incompetent. The petitioners-tenants (the non-applicants Nos. 1 to 3) have thereafter challenged the aforesaid orders dated 13.05.1997 and 15.12.2005 by way of this writ petition. The relevant facts and the background aspects of the matter could be taken into comprehension thus: The respondent No.3 had been a member of the armed forces of the Union; and owns immovable property situated at Pipali Chowk, Mahatma Gandhi Road, Banswara, a part whereof had been let out to the petitioners. On 25.01.1993, the respondent No.3 moved an application (Annex.1) under Section 16 of the Act of 1950 seeking the order for ejectment of the tenants from the premises in question on the grounds that after serving the Indian Navy, he had retired on 15.01.1976 from the post of Chief Electrician (Power); and that after retirement, for the purpose of subsistence, he took upon the engagement in National Engineering Industries Limited, Jaipur but retired therefrom in the month of August 1990 and thereafter, has settled at Banswara, his birth place. While stating the extent of properties held by him and the expanse of 3 his family, said to be comprising of two sons, daughter-in-law, two daughters of the son, and two sons of the daughter, the applicant averred that his son Manoj had been carrying on business in one of the ground floor shops and the other shop was with the tenants; and that his other son was of marriageable age. The applicant alleged that he was finding it difficult to reside at the upper floor and thus, intended to use the demises premises for his residence after carrying out the necessary alterations. The applicant also produced a copy of the certificate issued by the Zila Sainik Board, Udaipur on 30.11.1992, certifying his bona fide requirement. The application so moved by the respondent No.3 was put to contest by the tenants and came to be rejected by the District Magistrate, Banswara by his order dated 31.03.1994 (Annex.3) essentially on the consideration that the applicant had retired on 15.01.1976 and as per Section 16(1)(a)(i) of the Act of 1950, the application was required to be moved within one year; and the same having been filed after 16 years was barred by time. The learned District Magistrate also referred to the fact that the tenants had only 78 square feet of area with them that was about 8.73 per cent of 892 square feet of the area available with the applicant; and so also to the report dated 26.07.1993 as submitted by the Sub-Divisional Officer, 4 Banswara and pointed out that there were no such comments that the tenants were definitely required to be evicted. The aforesaid order dated 31.03.1994 was questioned by the respondent No.3 before the District Judge, Banswara, who proceeded to deal with the matter in a so-called appeal (No. 10/1994) though the decision on the application under Section 16 of the Act of 1950 is not open to appeal as such; and as per Sub-section (11) of Section 16 of the Act of 1950, the District Judge could call for the record of the proceedings decided by the District Magistrate for the purpose of satisfying himself about legality of the order made by the District Magistrate and such powers are essentially of revision, as stated in Sub-section (12) of Section 16 of the Act. Be that as it may, the learned District Judge proceeded to decide the matter by his order dated 17.11.1995 (Annex.4) with the observations that the application, when filed under Section 16 (1)(a)(i) of the Act of 1950, was barred by limitation with reference to the year of retirement of the applicant-landlord, i.e., 1976. It was, however, submitted on behalf of the applicant that he had not filed the application under Section 16 (1)(a)(ii) of the Act of 1950 and the observations as made by the District Magistrate might create hurdle in his moving another application under the said provision to which, the 5 learned District Judge observed that the applicant would be free to file the application afresh on the ground mentioned in Section 16(1)(a)(ii) of the Act of 1950. It appears that the respondent No.3 thereafter obtained a certificate, issued in the month of February 1996 (Annex.5), from the Lt. Cdr. At Arms, Staff Officer (GB), certifying that he had retired from Indian Navy with effect from 14.12.1965 and that he required his own premises for personal use in terms of Section 16(1)(a)(ii) of the Act of 1950; and, on the basis of this certificate, proceeded to submit the present application on 10.06.1996 (Annex.6). While expanding on the grounds as stated in the earlier application but pointing out that he retired from active service on 14.12.1965 and finally retired on 14.12.1975 after completing 10 years of reserve service, the applicant submitted that the premises in question were let out to the father of the non-applicants Nos. 1 to 3 on 06.12.1962 when the applicant was in active service; and that the tenant sub-let a part of the premises to the father of the respondent No.4, who later on started making payment of rent directly to him. The applicant submitted that the requisite certificate having been issued by the concerned authority about his personal requirement of the suit premises and such certificate being conclusive, no other evidence was required to be 6 adduced; and prayed for issuance of the order for ejectment of the tenants. On being served with the notice on the application so moved, the tenants proceeded to submit, on 22.07.1996, their reply-cum-application seeking leave to contest (Annex.7) with the submissions, inter alia, that the applicant had, in fact, retired on 15.12.1975 and thereafter had been in a private job until the year 1990 that was not co-related with his naval services; and that the applicant was residing comfortably in his elder son's house and the suit premises were not required for his use and occupation. It was also submitted that the non- applicants Nos. 1 to 3 were having the premises only of 6 x 7 ft. size whereas the non-applicant No.4 had the premises only of 3 x 4 ft. size and on the other hand, the applicant was having various other premises vacated by the other tenants. The tenants submitted that the premises in question had been constructed only for commercial purposes, had never been used for residence, and were not likely to be used for residence. While submitting that the applicant was not entitled to the order for ejectment on the basis of the certificate now obtained by him, the tenants also alleged that the similar nature application having been dismissed earlier, the present application was barred by res judicata and the claim of relief 7 herein was also barred by the principles of Order II Rule 2 of the Code of Civil Procedure (CPC). It is noticed from the record of the proceedings that after filing of the above referred reply-cum-application for leave to contest by the tenants on 22.07.1996, the matter was posted for evidence but without specific order granting leave to contest. However, on 26.08.1996, the applicant proceeded to move an application stating that the certificate as produced by him was that of conclusive evidence and the non-applicants having failed to seek and obtain the leave to contest, the order for ejectment was required to be passed immediately. Upon moving of such an application by the landlord, the learned District Magistrate, Banswara observed, on 28.10.1996, that the matter having already been fixed for evidence, it would not be proper to deny the parties the right of adducing evidence. The matter was thereafter proceeded in evidence but, on 17.03.1997, was transferred to the Additional District Magistrate, Banswara ('the ADM' / 'the Magistrate' hereafter), who had ultimately decided the application by his impugned order dated 13.05.1997 (Annex.8). The learned ADM considered the questions about maintainability of the application particularly for dismissal of the earlier application on 31.03.1994; but with reference to the order as passed by 8 the District Judge, Banswara on 17.11.1995, observed that the applicant having been held entitled to move afresh under Section 16(1)(a)(ii) of the Act of 1950, the present application was not incompetent. The learned ADM further rejected the contention that Section 137 of the Limitation Act would apply and did not agree that the application was barred by limitation with the observation that no limitation as such was provided for filing an application under Section 16(1)(a)(ii) of the Act of 1950. The learned ADM also considered the submissions on the part of the tenants questioning the requirement as alleged but held such contentions untenable for the over-riding provisions of Section 16 of the Act of 1950. The learned ADM observed that the applicant retired from active service on 14.12.1965 and from reserve service on 14.12.1975; that the certificate (Annex.5) referred to the applicant only and there was no any doubt about its validity and correctness; and that in view of the provisions contained in Sub-section (3) of Section 16 of the Act of 1950, there was no reason to reject the facts stated in the certificate produced by the applicant. Accordingly, the learned ADM proceeded to allow the application moved by the respondent No.3 and issued the consequential order for ejectment. The revision petition taken by the tenants against the 9 aforesaid order dated 13.05.1997 has been considered and dismissed by the learned Additional District Judge, Banswara by the impugned order dated 15.12.2005 (Annex.12). The learned Additional District Judge referred to the facts of the case and to the grounds as stated in the revision petition and, while rejecting the contention that the application was barred by limitation and while further holding that the application was not barred by res judicata, the learned Additional District Judge observed that the fact having been proved from the certificates about the applicant’s retirement from naval services after letting out the premises, his bona fide requirement could not be doubted; and held that the order passed by the subordinate Court, being not vitiated for any illegality, impropriety or irregularity, called for no interference. As noticed at the outset, seeking to challenge the orders aforesaid, the petitioners earlier preferred a regular first appeal (CFA No. 77/2006) that was dismissed by this Court as not maintainable on 12.05.2006. The petitioners have thereafter questioned the orders aforesaid by way of this writ petition. This petition was admitted for consideration on 07.08.2007 and, having regard to the circumstances of the case, the relevant records have been requisitioned; and the learned counsel for the parties have been heard at length. 10 Learned counsel Mr. M.C. Bhoot appearing for the petitioners has in the first place laid emphasis on the submissions that the proceedings for ejectment as adopted against the petitioners remain wholly without jurisdiction. The learned counsel submitted that admittedly the landlord retired from his service with the Union as back as on 14.12.1965 and his reserve services thereafter could not be counted as regular services but in any case, admittedly, the landlord did join a private job after retirement and continued with such private job for good 15 years before seeking the order for ejectment under Section 16 of the Act. According to the learned counsel, for his having lastly retired from a private job, the landlord does not fall within the category of the persons for whose benefit has Section 16 been incorporated in the Act of 1950; and the application for eviction ought to have been rejected. Learned counsel next contended that in the scheme of Section 16 of the Act of 1950, the period of one year as referred in Clause (i) of Sub-section (1) (a) of Section 16 ipso facto applies to its clause (ii) too; and when the earlier application moved by the landlord was rejected as time barred, the present application moved later could not have been considered within limitation. Learned counsel submitted in the alternative that if at all it be taken that the limitation as such 11 has not been provided for an application under Clause (ii) of Section 16 (1) (a), it would at the most be of three years per Article 137 of the Limitation Act because in any case, the provisions of the Limitation Act are not done away with for the purpose of the application under Section 16 of the Act. Learned counsel submitted that by their very nature, when the proceedings are meant for immediate recovery of possession of the premises, they have to be adopted at the earliest and in any case, cannot be considered maintainable when taken up more than 15 years after the date of retirement even from reserve services. The learned counsel further submitted that the earlier order dated 31.03.1994 operates res judicata for all practical purposes and the repeat application made merely with change of reference to the statutory provisions ought to have been rejected; and that in any event, the present application remains barred by the principles of Order II Rule 2 CPC. The learned counsel further submitted that for the purpose of passing of an order under Section 16(1)(a)(ii) of the Act, the requirement of the landlord is required to be established; and in this regard, even in the earlier order dated 31.03.1994, the findings had been recorded against the landlord and it was found not to be a case of pressing need. 12 Learned counsel contended that the subordinate Courts have acted illegally in assuming the certificate as produced by the landlord to be conclusive for all purposes and have failed to consider that once the tenants-petitioners were granted the leave to contest, the conclusiveness as attached to the certificate was lost and at any rate, the certificate was very much open to rebuttal. The learned counsel elaborated on the submissions that in the scheme of Section 16, the tenant could seek leave to contest by showing the facts that would disentitle the landlord from obtaining the order for ejectment and once the leave is granted, by necessary implication, the certificate becomes subject of rebuttal and then, the alleged requirement could be examined only on the basis of evidence on record. The learned counsel contended that in the present case, the order for ejectment cannot be sustained for having been issued merely with reference to the certificate produced by the landlord and without considering the other material on record. Per Contra, learned counsel Mr. R.K. Thanvi appearing for the respondent-landlord submitted in the first place that the arguments sought to be canvassed and developed in this writ petition questioning the requirement of the landlord remain foundationless and the attempt on the part of the petitioners to assert new grounds cannot be countenanced. With reference 13 to the contents of the order dated 13.05.1997 as passed by the Additional District Magistrate, Banswara, the learned counsel contended that the submissions on the part of the petitioners had essentially been that the earlier decision dated 31.03.1994 operated as res judicata and the other arguments beyond such submissions, particularly those relating to the merits of the grounds of eviction, cannot be raised in the writ petition. The learned counsel further referred to the impugned order dated 15.12.2005 and submitted that the requirement of the landlord was not questioned as such even before the Revisional Court and any argument in that regard does not deserve consideration in this writ petition, it being not in the nature of an appeal or revision. The learned counsel strenuously urged that the ground as suggested by the petitioners does not deserve any consideration and then, the requirement as suggested by the landlord having gone unrebutted, the order for ejectment requires no interference. The learned counsel has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of Shamshad Ahmed & Ors. Vs. Tilak Raj Bajaj (deceased) through LRs & Ors. : 2008 (2) RCR 346. The learned counsel also submitted that the application as moved by the respondent No. 3 was neither barred by the principles of res 14 judicata nor by the principles of Order II Rule 2 CPC; and has referred to the decisions in Deva Ram & Anr. Vs. Ishwar Chand & Anr.: 1995 DNJ (SC) 454 and State of Maharashtra & Anr. Vs. M/s National Construction Company & Anr. : 1996 DNJ (SC) 46. The learned counsel for the contesting respondent further submitted that the contentions as urged in relation to limitation remain untenable because the requirement of the premises for personal use is essentially that of a recurring cause of action; and referred to the decision of the Hon'ble Supreme Court in the case of N.R. Narayan Swami Vs. B. Francis Jagan : 2001 (2) Apex Court Journal 1. Learned counsel yet further submitted that even if the landlord had taken up some private job after his retirement from naval services, he did not cease to be an ex-serviceman for the purpose of Section 16 of the Act. Learned counsel contended that Section 16(1)(a)(ii) and Section 16(1)(a)(i) operate in different fields; and so far Section 16(1)(a)(ii) is concerned, the application seeking order for ejectment could be maintained upon fulfilling the basic conditions that the member of armed forces has retired any time prior to the insertion of such provisions, that there is no agreement or lease in writing subsisting at the time of making the 15 application, that the premises have not been let after the date of retirement, and that the premises are required for the use and occupation of himself or his family. According to the learned counsel, the application as moved in the present case being in accord and conformity with the requirements of Section 16 of the Act of 1950 and then, in the scheme of the provisions contained in Section 16, the certificate being of conclusive evidence, the subordinate Courts have not committed any illegality in passing and affirming the order for ejectment of the tenants; and there is no ground for interference by this Court in the writ jurisdiction. The learned counsel for the petitioners rejoined with the submissions that so far the requirement of the applicant is concerned, the learned Magistrate himself has observed that the applicant had not been able to establish the same by any other evidence; and it was only the certificate that was considered and taken as conclusive; and similar has been the approach of the learned Revisional Court. According to the learned counsel, it cannot be said that the submissions as made before this Court questioning the requirement of the landlord were not as such urged before the subordinate Courts. The learned counsel reiterated that in the present case, with the leave to contest having been granted, the 16 certificate could not have been treated conclusive for all purposes; and the subordinate Courts having not properly appreciated the scheme of Section 16, the impugned orders deserve to be set aside. The submissions as made by the learned counsel for the parties have been given a thoughtful consideration and the records have been scanned through. It may be pointed out that looking to the questions arising for consideration, essentially relating to the provisions contained in Section 16 of the Act, the learned counsel for the parties were heard over again on the scheme and scope of the said provisions; and were posed the questions about the decided cases in that regard. Learned counsel have placed for perusal before the Court two decisions: one, in the case of M.D. Rao Vs. Satish Augustin & Anr.: 1995 DNJ (Raj.) 68 and another, in the case of Col. Raghveer Singh Choudhary Vs. The District Collector, Alwar & Anr. : 2005 (3) RLW 1851. Having given an anxious consideration to the entire matter, this Court finds itself unable to approve the procedure as adopted in the present case and, for the fundamental error of approach on the part of the learned ADM and looking to the overall circumstances, it appears just and proper that the orders impugned be set aside and the matter be remanded for 17 consideration afresh even though the proceedings relate to the application seeking immediate order for ejectment of the tenants under Section 16 of the Act of 1950 and had been instituted way back in the year 1996. As the matter is proposed to be remanded to the learned ADM for consideration afresh, inexpedient it is to deal with and pronounce upon the objections as suggested on behalf of the petitioners regarding operation of the provisions of the Limitation Act, regarding bar of res judicata, and so also regarding operation of the principles of Order II Rule 2 CPC. Such arguments having been advanced before the Court and other aspects relating to the merits of case having surfaced on record, have only been noticed but without expression of final opinion thereupon. The matter, however, deserves to be remanded for the reasons as shall appear henceforth. It has been contended on behalf of the petitioners that the learned subordinate Courts have proceeded illegally in assuming the certificate produced by the landlord to be conclusive for all purposes and have failed to consider that once the petitioners had been permitted to contest, by necessary implication, the said certificate was subject to rebuttal; and the alleged requirement of the landlord ought to have been examined on the basis of the evidence on record 18 and could not have been taken concluded merely with reference to the said certificate. The submissions have been resisted on behalf of the contesting respondent firstly with the objections that such were not the contentions urged before the subordinate Courts; and the requirement of landlord was not as such challenged even before the Revisional Court. It is also submitted that such contentions are beyond the scope of consideration of this Court under Article 227 of the Constitution of India. The objections as raised on behalf of the respondent cannot sustain themselves. So far operation and scope of Article 227 of the Constitution of India is concerned, suffice is to say such powers of general superintendence are basically intended to keep the subordinate Courts/Authorities within the bounds of their authority and to ensure that they discharge their duties in a legal manner. Thus, the cases of erroneous assumption of jurisdiction, or refusal to exercise jurisdiction, or errors apparent on the face of the record, or violation of principles of natural justice, or arbitrary or capricious exercise of authority, or recording the findings that are perverse or without reasonable basis or patently unreasonable or the cases of like nature might call for interference by this Court when any such error leads to manifest injustice but then, exercise of 19 supervisory jurisdiction has not been considered proper unless the order of the