MOOLI DEVI & ANR Vs. JAGDISH & OTHERS

JUDGEMENT

(1.) This petition has been filed challenging the order dated 20th March, 2012 passed by the learned Appellate Rent Tribunal, Sikar upholding the order dated 14th September, 2011 passed the Rent Tribunal, Sikar dismissing the application filed by the petitioner under Order IX Rule 13 of CPC.

(2.) The facts of the case are that one Jagdish Prasad Mishra filed an eviction petition under Section 9 of the Rajasthan Rent Control Act, 2001 ('the Act of 2001' for short) against Firm Nandkishore Babulal through Nandkishore, Shambhu Dayal, Babulal, Rajkumar and Ashok Kumar all sons of late Shri Shankar lal and Smt. Mooli Devi wife of late Shri Shankar lal. The eviction petition was allowed by the Rent Tribunal, Sikar and a certificate of possession was issued on 13th January, 2009, Mooli Devi and Babulal had remained ex-parte. An appeal under Section 19(6) of the Act of 2001 was filed by Shambhu Dayal and others in which Babulal and Mooli Devi, brother and mother respective of Shambhu Dayal and others were impleaded as proforma respondents. Notice on the appeal were issued and served both on Mooli Devi and Babulal on 27th March, 2009. However, neither Mooli Devi nor Babulal appeared before the Appellate Rent Tribunal, Sikar. Vide order dated 18th February, 2010 appeal filed by Shambu Dayal and others came to be dismissed. Against the order dated 18th February, 2010 passed by the Appellate Rent Tribunal, Sikar, S.B. Civil Writ Petition No. 4192/2010 was filed by Shambhu Dayal, Rajkumar and Ashok Kumar wherein Mooli Devi and Babulal were again impleaded as proforma respondents. On notice being issued by this Court, Mooli Devi and Babulal were served. Writ petition no. 4192/2010 was disposed of by the High Court vide order dated 8th August, 2011 with the consent of the parties and Shambhu Dayal, Rajkumar and Ashok Kumar petitioners therein were inter alia directed to vacate the tenanted premises on or before 31st October, 2012.

(3.) It appears that subsequent to dismissal of the appeal by the Appellate Rent Tribunal, Sikar on 18th February, 2010 and pendency of writ petition no. 4192/2010 thereagainst before this Court, an application under Order IX Rule 13 of CPC came to be filed at the instance of Mooli Devi and Babulal on 13th November, 2010 before the Rent Tribunal, Sikar stating therein that certificate of possession issued by the Tribunal on 13th January, 2009 deserved to be recalled, as proceedings against the petitioners (now before this Court) had been taken ex-parte. On reply to the application filed on 13th November, 2010 by the landlord Jagdish Prasad Mishra, the Rent Tribunal proceeded to consider and dismissed the application filed under Order IX Rule 13 of CPC. In dismissing the application under Order IX Rule 13 of CPC, vide order dated 14th September, 2011, the Rent Tribunal noted that subsequent to the issue of certificate of possession on 13th January, 2009, the appeal thereagainst have been dismissed on 18th February, 2010 and thereafter matter closed with an agreed order in writ petition no. 4192/2010 filed by Shambhu Dayal, Rajkumar and Ashok Kumar with a direction to vacate the tenanted shop by 31st October, 2012. The Tribunal also noted that service on Mooli Devi and Babulal, who admittedly lived in the same residence, as Shambhu Dayal, Rajkumar and Ashok Kumar, sons and brothers of the petitioners respectively (who had contested the petition), was complete in the eviction petition filed under Section 9 of the Act of 2001 before the Rent Tribunal inasmuch as service of summons had served for Mooli Devi and accepted by her son Rajkumar on 12th February, 2004. The Tribunal also noted that Babulal had similarly been served through Rajkumar with whom Babulal admittedly shared the residential premises. It was also noted by the Rent Tribunal that Shambhu Dayal and Rajkumar had in fact, in the course of trial of the eviction petition admitted to the fact that neither Babulal nor Mooli Devi were engaged in the business with them in the tenanted shop which had been taken on rent by their father late Shri Shankar lal, as Babulal was working as an Agent with the LIC. The learned Tribunal held that apart from apparent and clear knowledge of the proceedings before the Rent Tribunal, service of the summons on Babulal and Mooli Devi, living in the same residential house with the contesting tenants stood proved. Further in appeal filed against the certificate of possession dated 13th January, 2009, passed by the Rent Tribunal before the Appellate Rent Tribunal, Babulal and Mooli Devi had themselves been impleaded as proforma respondents and had been served notice of appeal on 27th March, 2009, yet remained ex-parte also in the course of appeal as before the Rent Tribunal. Similarly, in spite of service of notice in writ petition no. 4192/2010 wherein they were impleaded as proforma respondents, Mooli Devi and Babulal further remained ex-parte before the High Court. Thus, from the material before it, the Rent Tribunal also held that Mooli Devi Babu lal had also been served notice on the execution application no. 3/09 filed under Section 20 of the Act of 2001 on 13th October, 2009. The Tribunal further held that Mooli Devi and Babulal along with Shambhu Dayal, Rajkumar and Ashok Kumar were claiming a co-tenancy in a commercial tenancy following Shankar lal's death and service on one of the tenants was adequate for service on all as held in a similar situation in the judgment of the Hon'ble Supreme Court in the case of Kanji Manji versus The Trustees of the Port of Bombay, 1963 AIR(SC) 468 more particularly Para 7 thereof. In the overall facts before the Rent Tribunal, it took a view that there was no force in the application under Order IX Rule 13 of CPC, which was without merit and in any event moved belated only on 13th November, 2010. A delay of over 1 year 10 months in spite of sharing a common residence with the contesting tenants, the sons of Mooli Devi and brother of Babulal. In this view of matter, the Tribunal was pleased to dismiss the application under Order IX Rule 13 of CPC vide its order dated 14th September, 2011.