Mohammad Rafiq, J. - (1.) DEFENDANT -petitioner Shiv Kumar has filed this writ petition aggrieved by orders dated 19.08.2011 and 23.08.2012 passed by respondent No. 1 - Presiding Officer, Rent Tribunal, Dausa, in Application No. 01/2007. By first order, learned Tribunal rejected application of defendant -petitioner, which was filed stating that Issue No. 2 is with regard to maintainability of eviction application in the light of fact that plaintiff -respondent had earlier filed a suit in which the court has ordered to deposit rent. By second order, learned Tribunal dismissed the application filed by defendant -petitioner under Order 7 Rule 11 of the Civil Procedure Code. Learned counsel for defendant -petitioner contends that both the applications were decided if the alleged default by defendant -petitioner, in making payment of rent, has taken place during pendency of earlier suit filed by landlord -plaintiff -respondent under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and, then provisions of section 13(4), 13(5) and 13(6) of the Act could be attracted and that new suit would not be maintainable. By the first order, learned Rent Tribunal has held that this is a mix question of law and facts therefore will be decided along -with the main petition under Section 9(a) of the Rajasthan Rent Control Act, 2001. The second order also deals with similar argument but in a different way when application of petitioner under Order 7 Rule 11 CPC was rejected holding that the suit cannot be said to be barred particularly when this issue is yet to be decided. Perusal of the issue No. 2 clearly shows that it is a mix question of fact and law, which has to be finally determined.
(2.) SHRI Rajesh Kapoor, learned counsel for petitioner, has cited a judgment of the Supreme Court in Shiv Dutt Jadiya v. Ganga Devi - : AIR 2002 SC 1163, and argued that the Supreme Court in aforesaid case has upheld a similar contention when default was allegedly committed by a tenant during pendency of appeal filed against decree passed by trial court. The second suit was held to be not maintainable in view of the provisions of Section 13(4) of the Act of 1950 on the analogy that the appeal is continuation of suit. Whether or not, that analogy can be applied to the present case, is a debatable issue because in the new Act of 2001, there is no concept of provisional determination of rent or for matters of default in payment of rent, to make payment of provisional rent during pendency of suit, for striking out the defence or for deposit of the rent of disputed period with the court and those issues are yet to be determined by learned Rent Tribunal as and when eviction petition filed by landlord is decided. Obviously those issues can be decided on the basis of evidence led by the landlord whether at all any default was committed and therefore on the proven facts and law, the Tribunal will have to take its own view. And therefore this court will refrain from giving any finding except approving view taken by learned Rent Tribunal holding that this is a mixed question of law and facts and therefore it cannot be decided before deciding the main suits in piecemeal, and therefore no interference is called for. However, it is impressed upon learned Rent Tribunal to decide this also as one of the issues while finally disposing of main petition. The Rent Tribunal is directed to decide the main petition itself expeditiously. Writ petition is accordingly dismissed. This also disposes of stay application.;