Bhagirath vs Civil Judge (J.D.) and Another

Dinesh Maheshwari, J.—The defendant-petitioner, facing a suit for eviction and recovery of mesne profits as filed by the respondents Nos. 2 to 4, has filed this writ petition against the order dated 22.05.2007 (Annex.5) as passed by the Civil Judge (Junior Division), Merta City rejecting his application seeking to amend the written statement to take the pleadings that for the Rajasthan Rent Control Act, 2001 (''the Act of 2001'') having been enacted, the suit for eviction could be maintained only before the Rent Tribunal and eviction could be ordered only on the grounds contained in Section 9 of the Act of 2001.

The learned Trial court has rejected the application for amendment with the observations that the suit has been filed under the Transfer of Property Act; and the Act of 2001 has only repealed the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (''the Act of 1950'') and even if the provisions of the Act of 2001 have been applied to the Merta area from 22.02.2006, only the suits filed under the Act of 1950 would be affected and not the present suit filed under the Transfer of Property Act; and that by permitting the amendment, the very nature of the suit would be changed.

This writ petition was entertained on 23.07.2007 and notices were ordered to be issued; yet this Court rejected the prayer for stay of further proceedings in the suit with the following order:

It was pointed out to the learned Counsel for the petitioner that a look at the provisions of Sub-section (2) of Section 1 of the Rajasthan Rent Control Act, 2001 would show that the Act was made applicable in the first instance to such municipal area which were comprising district head-quarter in the State, and later to such other municipal areas which were having population exceeding 50000 as per 1991 census as the State Government may by notification in the official gazette specify from time to time. Then by subsequent amendment this requirement of 50000 population has been deleted, and therefore, the amended provision does not require population of 50000 but then a separate notification in the official gazette making the Act applicable to such other municipality as may be specified from time to time is very much required to be issued which in the present case has not been issued, for the area comprised in the municipality where the property in question is situated.

Learned Counsel for the petitioner, thereupon, submits that the learned trial court has passed the impugned order holding that since the suit has been filed under the provisions of Transfer of Property Act, and the Rent Control Act does not make any provision governing the pending litigation, therefore, the present suit is to be decided by that Court only, and according to the provisions of Transfer of Property Act.

In my view, the order impugned may not be happily worded but then the learned trial court meant to proceed with the trial under Transfer of Property act only because the provisions of Rent Control Act has not made application to the area where the property in question is situated. In these circumstances I do not find any ground to stay the proceedings. The stay petition is accordingly dismissed.

However, it is clarified that if during pendency of the suit, new Rent Control Act is made applicable to the area where the property in question is situate, it will be open to the parties to revive the application. The learned trial court is directed to proceed with the trial most expeditiously.

The plaintiffs-respondents Nos. 2 to 4 have appeared in response to the show cause notice; and learned Counsel for the parties have been heard. Having given a thoughtful consideration to the matter, this Court is clearly of opinion that this writ petition remains meritless and deserves to be dismissed.

It had already been pointed out by this Court even while issuing show cause notices in this writ petition that despite amendment to Sub-section (2) of Section 1 of the Act of 2001, a separate notification in the official gazette making the Act applicable to such other areas as may be specified from time to time is very much required to be issued and that has not been issued for the area in question. Even though the learned Trial Court has proceeded to reject the prayer for amendment on the reasons different but the fact of the matter remains that the requisite notification extending the Act of 2001 to Merta City area has not been issued and, therefore, the proposition as sought to be suggested by way of amendment remains baseless and inconsequential.

It may be pointed out that show cause notices were issued in this writ petition on 23.07.2007; however, a few days thereafter, i.e., on 13.08.2007, this Court dealt with another writ petition against similar nature order, raising akin issue and relating to the same Merta City area namely, the case of Rampal v. All Brahmin Swarnkar Panchayat and Ors. Reported in 2007 (3) DNJ 1362, and this Court, even while observing about the similar reasoning of the Trial Court that the same might not be sustainable, did not allow the prayer for similar nature amendment for the fundamental reason that in the absence of the notification as required by Sub-section (2) of Section 1 of the Act of 2001, it could not be said that the Act had become applicable to the municipality area of Merta City.

Further, on 07.03.2008, while rejecting a batch of petitions led by S.B. Civil Revision Petition No. 06974/2007 (def) : Bhanwarlal v. Rajendra Prasad and affirming the order rejecting applications under Order VII Rule 11 of the CPC that were made with reference to the amendment to the Act of 2001 suggesting as if by such amendment itself, the Act stands extended to the area in question, this Court thus pointed out incorrectness of such proposition with reference to the provisions of Section 1 of the Act of 2001 and the decision in Rampal''s case (supra):

...and Sub-section (2) of Section 1 after its amendment reads as under:

(2) It shall extend in first instance to such of the municipal areas which are comprising the District Headquarters in the State and later on to such of the other municipal areas as the State Government may, by notification in the Official Gazette, specify from time to time.

A bare look at the provision aforesaid makes it clear that mere amendment to the provisions of the Act of 2001 is not decisive of the matter because operation of the Act to any area whereto it is extendable depends on issuance of notification by the State Government as required by Sub section (2) of Section 1 of the Act of 2001.

This Court in the case of Rampal v. All Brahmin Swarnkar Panchayat and Ors. 2007 (3) DNJ 1363 has referred to the aforesaid provisions of the Act and observed:

In my view, thus, on the reading of the consequently amended Sub-section (2) also, it cannot be said that the Act is applicable to the municipal area of Merta City, in absence of any notification, published in Official gazette, specifying the Act to have become applicable to this area. In that view of the matter, though for different reason, I do not find any sufficient ground to interfere with the impugned order.

In view of the specific requirement of Section 1(2) of the Act of 2001 and for the view taken by this Court in Rampal''s case (supra), the plea as taken by the petitioners remains untenable for want of requisite notification extending the Act to the area in question. Thus, the impugned orders call for no interference.

The aforesaid position of law was prima facie indicated by this Court even while issuing show cause notices and rejecting stay application on 23.07.2007 in this writ petition. With the later decisions aforesaid, the question is no more res integra that for want of notification by the State Government as required by Sub-section (2) of Section 1 of the Act of 2001, the Act of 2001 does not stand extended to the area of Merta City.

The prayer for amendment as made by the petitioner in the application (Annex.3) turns out to be baseless and, though for reasons different than as stated by the learned Trial Court, such prayer for amendment is required to be refused. Thus, the impugned order calls for no interference.

The writ petition fails and is, therefore, dismissed. No costs.