MITAL, CJ. - (1.) THE petitioner is landlord of his shop which he had rented out to the respondent as a tenant on an agreed rent of Rs. 70/-p. m. THE petitioner filed a suit for fixation of standard rent. While the suit for fixation of standard rent was pending, the trial court fixed Rs. l20/-p. m. as the provisional rent under section 7 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which on appeal was reduced to Rs. l00/-p. m. and on tenant's Civil Revision No. 135/80 kanaiya Lal V/s Smt. Kesar Devi was maintained by this Court on 7th of May, 1980.
(2.) WHEN the tenant did not pay the provisional rent, a suit for ejectment was filed against the tenant on the ground of non- payment of rent. The suit was opposed by the tenant and while doing so,an application was filed under section 10 of the Code of Civil Procedure for staying the suit on the ground that earlier suit for fixation of standard rent was pending in which some issues were common between the same parties. One of the common points pleaded was that the landlord had agreed to sell the shop in dispute to the wife of the tenant and pursuant to that agreement the tenant's case was that he was not liable to pay rent and, therefore, the suit deserves to be stayed. The plea of the tenant prevailed with the trial court and the suit for ejectment was stayed. This is landlord's revision under section 115 of the Code of Civil Procedure. Despite service none appears for the respondents. Accordingly, I proceed to decide the revision ex-parte. On a consideration of the matter, I am of the opinion that the application under section 10 of the Code of Civil Procedure was abuse of process of the court and the trial court seriously fell in error, if did not exceed his jurisdiction in allowing the application. In order to appreciate the controversy arising from the agreement of sale alleged to have been executed by the Landlord in favour of the wife of the tenant, it deserves notice that the suit of the wife of the tenant has been dismissed by the trial court and the learned Single Judge of this court. Moreover, Section 54 of the Transfer of Property Act specifically says that by mere agreement of sale, no right in property is created. If at all right was to be created, it would have been created in favour of the wife of the tenant and courts do not recognize the relationship of husband and wife while determining the legal status of the parties. The suit for fixation of standard rent was filed on 20th of January, 1979 and that is stated to be still pending before the trial court. The present case is an instance of giving a go bye to the provisions of the Rent Control Legislation, in this case at the instance of tenant whereas in another cases the landlord created problem for the tenant. I fail to understand how can a tenant continue to stay in a premises if he is not prepared to pay rent. The payment of rent is the first thing before anybody would like to be called as a tenant and would like to continue in possession of the premises as such. That is why, the first and foremost provision for ejectment of a tenant contained in Rent Control Legislation is non-payment of rent.
(3.) THE only common issue, according to court below, is as follows: - "whether the plaintiffs did not remain owner of the disputed shop after 26th of November, 1970 and are not entitled to get rent of the disputed shop from the defendants. " I fail to understand how could such an issue be raised between the landlord and tenant when agreement of sale was executed by the landlord in favour of the tenant's wife. Even if such an issue was to arise, the wife of the tenant has already failed in two courts including before the learned Single Judge of this Court and atleast by now nothing survives for consideration on the aforesaid issue. For the reasons1 recorded above, the revision petition is allowed, order of the court below dated 26th of March, 1984 is hereby set- aside and the trial court is directed to proceed with the suit with utmost expedition and the suit would be decided before the end of this year unless the counsel for the landlord himself is prepared to take adjournments and the trial court is prepared to grant those; adjournments, which according to my thinking, should not be granted in the interest of litigant public. The petitioner is directed to appear through counsel before the trial court on 31st of August,1994. . ;