- (1.) The present writ petition has been filed against the order dated 29.05.2014 passed by the Appellate Rent Tribunal, Udaipur vide which the appeal against the order of the Rent Tribunal, Udaipur dated 04.02.2009 was rejected.
(2.) The respondent - landlord filed an application under Section 9 of the Rajasthan Rent Control Act, 2001 against the petitioner - tenant for his eviction from the shop in dispute. The said application under Section 9 of the Act was allowed vide an ex parte judgment dated 04.02.2009. The petitioner preferred an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree before the Rent Tribunal, Udaipur. The Rent Tribunal, Udaipur dismissed the said application on 20.02.2010. The appeal against the order dated 20.02.2010 too was dismissed on 05.09.2011. The petitioner - tenant preferred a writ petition No.8615/2011 before this Court. The said writ petition came to be dismissed on 04.04.2014. After dismissal of the said writ petition, the petitioner filed a regular appeal challenging the order dated 04.02.2009 on merits. Along with the said appeal, an application under Section 27 of the Rajasthan Rent Control Act, 2001 and Sections 5 and 14 of the Limitation Act was also filed. An application under Order 41 Rule 27 CPC was also filed. The Appellate Rent Tribunal dismissed the application under Section 5 of the Limitation Act vide order and judgment dated 29.05.2014 and thereby also dismissed the appeal filed by the petitioner.
(3.) While praying for setting aside the impugned order and judgment dated 29.05.2014, Mr. J.L. Purohit learned Sr. counsel for the petitioner - tenant contended that the application under Section 5 of the Limitation Act has been rejected without considering that there was sufficient reason on record for condonation of the delay. All this while, the petitioner was bonafidely pursuing the remedy against the order rejecting the application under Order 9 Rule 13 CPC. The petitioner immediately filed a regular appeal on 29.04.2014 against the judgment dated 04.02.2009 after the dismissal of the Writ Petition No.8615/2011 on 04.04.2014. Reliance was placed on the judgment rendered by the Apex Court in the case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department & Ors. reported in (2008) 7 SCC 169 as also in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors. reported in (2013) 12 SCC 649 and M.P. Steel Corporation Vs. Commissioner of Central Excise reported in (2015) 7 SCC 58 to contend that the period spent in pursuing another remedy should be set off while counting the period of limitation. It was further contended that instead of condoning the delay on the permissible grounds as above, the Appellate Rent Tribunal simply dismissed the same on the ground that the very appeal was not maintainable. Reliance was also placed on a judgment rendered in the case of Bhanu Kumar Jain vs. Archana Kumar and another reported in AIR 2005 SC 626 to contend that the petitioner had the remedy of availing both the options of pursuing the application under Order 9 Rule 13 CPC for setting aside the ex parte order as well as of filing regular appeal against the judgment. The petitioner had, accordingly, filed an appeal after exhausting the remedy under Order 9 Rule 13 CPC. While dismissing his application under Order 9 Rule 13 CPC, the merit was never considered, hence, the regular appeal should have been decided on merits instead of wrongly dismissing the same being not maintainable.;