45 B.R.T.F. and Another vs Padmawati Arts Creation Pvt. Ltd.

Prakash Tatia, J.—Heard learned Counsel for the parties.

Brief facts of the case are that plaintiff non-petitioner filed a suit foreviction against petitioners under the provisions of Rajasthan Rent ControlAct, 2001. The defendant petitioner submitted an application under Order 7Rule 11 C.P.C. and prayed that since no notice u/s 80 C.P.C. has beenserved by the plaintiff upon the Union of India, as required by the mandatoryprovisions of law, therefore, petition filed by the non-petitioner for evictionof the petitioners non-applicants before the Tribunal deserves to be rejected. The Tribunal vide order dt. 18.09.2006 after relying upon judgment of theBombay High Court 2006 AIH 2024 Food Corporation of India v. Union of India and Anr. held that petition filed under Rent Control Act is not governedby the provisions of CPC and it is not mandatory tofollow the procedure provided by the Code of Civil Procedure, therefore,the petition filed by the non-petitioner cannot be rejected for want of noticeunder Section 80 C.P.C.

Learned Counsel for the petitioner vehemently submitted that, orderpassed by the Tribunal is not a speaking order. According to learned counselfor the petitioner, the petition under the provisions of Rajasthan Rent ControlAct, 2001, is nothing but a suit in as much as that by this petition the plaintiffis seeking to enforce his right against the tenant for tenant�s eviction and forgetting possession. Learned Counsel for the petitioner relies upon thedefinition of suit given in Law Lexicon in view of the fact that no definitionof suit has been given under the provisions of Rajasthan Rent Control Act, 2001. According to learned Counsel for the petitioner even as per first provisoof sub Section (1) of Section 18 of the Act of 2001 itself it is clear that by thesame Act it has been provided that Rent Tribunal shall decide petition filedunder provisions of the Act of 2001 and where Chapters II and III of the Actdo not apply shall have due regard to the provisions of Transfer of PropertiesAct, 1882, the Indian Contract Act, 1872 or any other substantive lawapplicable to subject matter in the same manner in which such law can havebeen applied. It is specifically provided that for this purpose the Tribunalshall treat the suit as though it had been brought before the Civil Court byway of suit. It is also submitted that the exclusion from applicability of Section80 C.P.C. is not provided by any statutory provision of law under the Act of2001 and therefore, also the applicability of Section 80 C.P.C. cannot beexcluded. Not only this but it is specifically provided u/s 21 of the Act of 2001 that though the Rent Tribunal shall not be bound by the procedurelaid down by C.P.C. but at the same time it is also provided in the same Sub-section (3) of Section 23 the Rent Act that the Tribunal as well as AppellateRent Tribunal shall be guided by principles of natural justice and shall havepower to regulate their own procedure and further for the purpose ofdeciding their functions under the Act of 2001 they shall have same powersas the Civil Court has under the Code of Civil Procedure, 1908. In the totalityof facts and provisions made under the Act of 2001 the applicability of Codeof Civil Procedure has not been excluded specifically, may it has been provided 3445 B.R.T.F. and Anr. v. Padmawati Arts Creation 2007 (2) WLNthat Tribunal shall not be bound by the procedure laid down by Code of Civil Procedure, 1908. The requirement of principles of natural justice hasbeen made statutorily applicable while deciding the petition under the Act of 2001; and, applicability of substantive laws has been made applicable u/s 18 of the Act of 2001. Therefore, the Court below has committed errorof law in dismissing the petitioners application filed under Order 7 Rule 11C.P.C.

Learned Counsel for non-petitioner plaintiff vehemently submitted thatthe Tribunal is not a Civil Court nor petition filed under the Act of 2001 is asuit, therefore, Section 80 C.P.C. cannot be applied because of the reasonthat Section 80 C.P.C., itself provides that no "suit" can be instituted againstthe Government or Public Officer without serving a notice u/s 80C.P.C. and Section 80 C.P.C. no where provides the said provisions shallapply to even petition submitted in the Tribunal. It is also submitted thatthough in a different matter Bombay High Court, in case of Food Corporation of India v. Union of India and Anr. 2006 AIH 2024 held that the suit which are filed in a ordinary Civil Court are governed by the CPC and are the suits and �Suit� would not include proceedings which are filed before the Tribunal or other authorities constituted under special enactments where provisions of CPC are not strictlymade applicable.

The Hon�ble Apex Court while considering provisions of Maharastra Rent Control Act held that various provisions under Chapter VIII (Maharastra Rent Control Act 2001) unmistakably enacted that the competent authority constituted there under is not a Court and mere fact that such authority is deemed to be Court only for limited purpose and specific purpose, cannot make it a Court for all or any other purpose and at any rate for the purpose of either making provisions of Limitation Act 1963 attracted to proceedings before the said competent authority.

Learned Counsel for non-petitioner further submitted that the jurisdiction of Civil Courts has been excluded in respect to the entertaining the petition relating to dispute between landlord and tenant, therefore, also it is clear that petition before the Tribunal is not a suit in Civil Court. It is also submitted that C.P.C. applies to the procedure for suit to be tried in Civil Courts only. It is also submitted that proviso (1) of Sub-section (1) of Section 18 of the Act of 2001 only made applicable substantive law to petition filed under the Rent Act, 2001, procedural law has not been made applicable because of the reason that that would have been contrary to statutory provision, that is Section 21 empowering the Rent Tribunal to develop their own procedure.

I have considered the submission of the learned Counsel for the parties and perused the judgment relied upon also.

Before coming into force of the Rajasthan Rent Control Act, 2001 the dispute between land lord and tenant could have been decided by the Civil Court because of the reason that before the Act of 2001 another Act, Rajasthan Premises (Control of Rent & Eviction) Act, 1950 was in force. By said act certain restrictions were imposed that no Court shall pass decree of eviction against the tenant unless Court is satisfied on the grounds mentioned in Sub-section (1) of Section 13 of the Act of 1950. In case any dispute between land lord and tenant would have been decided by the Court having applicability of the Act of 1950 that would have been a decree under the provisions of CPC and the appellable u/s 96 of the CPC and the Court trying such disputes being Civil Court subordinate to High Court, revision would lie to the High Court. Neither Tribunal was established under the Act of 1950 nor any procedure was prescribed by the Act of 1950 for trial of the suit having applicability of Act of 1950. Contrary to provisions of Act of 1950, by the Act of 2001 it has been provided that dispute between land lord and tenant shall be decided not by the Civil Courts but by the Tribunals and for that reason Rent Tribunals are established under Chapter V of the Act of 2001 and specific provision for exclusion of Civil Courts jurisdiction has been made by enacting Section 18(1) in the Act of 2001. The applicability of the CPC has been excluded by specifically providing under Sub-section (3) of Section 21 that Rent Tribunal and Appellate Tribunal shall not bound by the procedure laid down in Civil Procedure Code. It is true that Rent Tribunals are bound to follow principles of natural justice which is otherwise mandate as per the rule of fair play in consonance with the constitutional provisions. By Sub-section (3) of Section 21 of the Act of 2001 the powers have been given to the Rent Tribunals to evolve their own procedure. The CPC also prescribes the procedure for trial of the suit and is not substantively creating or extinguishing right of the parties. The provision u/s 80 is also procedural in nature and that it may be mandatory to comply with requirement of service of notice upon the State or U.O.I. as the case may be because of the reason consequence of non compliance has been given in Section80 CPC itself but still it is procedural in nature. Rigor of the mandate of law u/s 80 cannot be enforced in Rent Tribunal because of the reason that Rent Tribunal is not bound by the procedure laid down by the Code of Civil Procedure. In view of above, reason that by special act jurisdiction of the Civil Court has been excluded and Special Tribunals have been established by the Act of 2001 and for the reason that Rent Tribunals have been given jurisdiction to evolve the own procedure for trial of the petition under Act of 2001 and Rent Tribunals have been made not bound by the procedure laiddown by the CPC and in view of the reason that complete procedure in respect to the trial of the petitioner under the Act of 2001 has been provided in the Act of 2001 itself with provision of preferring appeal against order passed under the Act of 2001 and further provision of Execution of orders of the Tribunal provided under the Act of 2001 itself, the proceedings before the Tribunal though for seeking the relief through the process of law, the petition under the provisions of Act of 2001 cannot be considered to be a Civil Suit requiring the notice u/s 80 CPC and further in view of the decision of Apex Court delivered in case of Prakash H. Jain v. Ms. Marie Fernades 2003 AIR SCW 538 the Tribunal constituted underthe Act of 2001 cannot be considered to be Court for all purposes.

In view of above reasons I do not find that the Court below has committed any error of law or fact or jurisdictional error. The Revision Petition of the petitioner is, therefore, dismissed.