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2015 Supreme(Raj) 361
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
MOHAMMAD RAFIQ, J.
SMT. RAM PYARI –Appellant
VS.
MST. SHANTI KUMAWAT & ANOTHER – Respondent
S.B. CIVIL WRIT PETITION NO. 4981, 5183/2008
Decided on : 18.05.2015
Mr. D.K. Bhardwaj with Ms. Shehnaz, for the petitioner. Mr. Shailesh Sharma on behalf of Mr. Virendra Agarwal, for Respondent No. 1.
Headnote:
Code of Civil Procedure, 1908 - Section 151 - Order 6 - Rule 17 - Rajasthan Rent Control Act, 2001 - Sections 6, 9 , 21 and 10 - Tenant - Recovery of increased rent - Eviction petition - Seeking amendment in eviction - Petitioner filed an application stating therein that husband of petitioner let out a room and kitchen to respondent tenant in year per month - Monthly rent was increased from time to time and at time of filing eviction petition payable rent was Rs. 650/- per month - Husband of petitioner executed a Will in favour of petitioner on for entire property including rented portion - Respondent-tenant defaulted in paying the rent - Respondent-tenant filed reply to said application and contended that said affidavits cannot be taken on record as additional evidence after filing of written statement - Petitioner-landlord on the same day filed another application seeking amendment in the eviction petition and prayed that amendment in Para 10.7 and 10.8 of eviction petition be permitted to be made - This application was also contested by Respondent-tenant contending that by way of proposed amendment -Held, In present case, eviction petition has been filed by petitioner stating that property in question was let out to Respondent No. 1 by her husband and after death of her husband petitioner has acquired ownership rights of entire property including rented property on basis of Will executed by her husband in her favour - But Respondent No. 1 in her reply to eviction petition has disputed fact of execution of Will by husband of petitioner in her favour and contended that said Will is forged and fabricated one - Besides, the additional evidence in present case would facilitate effective decision of case and Respondent-tenant would also have an opportunity to rebut those affidavits and produce her witnesses in rebuttal thereof - Inconvenience caused to respondent due to delay in producing same can be compensated by way of costs – Therefore this Court is of view that Rent Tribunal ought not to have dismissed application of petitioner for producing additional evidence in matter - Petitioner is permitted to file rejoinder as also place on record three affidavits of Notary Public, Court Premises Alwar Rajendra S/o. Laxman Singh and Santaram S/o. Jagram subject to payment of cost to Respondent No.1 tenant - Petitioner shall produce aforesaid witnesses on next date before Rent Tribunal or any other date that may be fixed by Rent Tribunal within one month thereafter for cross-examination by Respondent No. 1-tenant. Respondent No. 1 would also be at liberty to produce not more than two witnesses along with their affidavits in rebuttal who shall likewise be permitted by Rent Tribunal to be cross-examined by petitioner within one month thereafter - Writ Petition No. 4981/2008 is allowed - Writ Petition No. 5183/2008 and same stands dismissed accordingly.
Since these two writ petitions arise out of one and same eviction proceedings between the same parties, they were heard together and are being decided by this common order.
2. Both these writ petitions have been filed by the landlord challenging order dated 17.04.2008 passed by the Rent Tribunal, Alwar(for short 'the Rent Tribunal') in Application No. 83/2006 whereby three different applications filed by her in the aforementioned eviction petition have been dismissed.
3. Brief facts of the case are that the petitioner filed an application under Sections 6, 9 and 10 of the Rajasthan Rent Control Act, 2001(for short 'the Act') stating therein that husband of the petitioner(now died) let out a room and kitchen to respondent tenant in the year 1975 @ Rs. 100/- per month. Monthly rent was increased from time to time and at the time of filing eviction petition, payable rent was Rs. 650/- per month. Husband of the petitioner, Late Shri Mohal Lal, executed a Will in favour of the petitioner on 11.11.2002 for the entire property including the rented portion. Respondent-tenant defaulted in paying the rent. As such, the petitioner prayed for eviction of the Respondent-tenant, recovery of increased rent from 03.12.2004 to 03.08.2006 along with interest and re-determination of rent.
4. Respondent-tenant filed reply to the petition for eviction and denied averments made therein. She denied the fact of execution of Will in favour of the petitioner. During pendency of the eviction petition, an application was filed by the petitioner on 21.12.2006 for taking on record additional evidence through affidavits with regard to the Will, which was executed by Mohal Lal in favour of the petitioner and with regard to tenant of non-petitioner. Respondent-tenant filed reply to said application and contended that said affidavits cannot be taken on record as additional evidence after filing of written statement. The petitioner-landlord on the same day, i.e., 21.12.2006, filed another application under Order 6 Rule 17 CPC read with Section 151 CPC seeking amendment in the eviction petition and prayed that amendment in Para 10.7 and 10.8 of the eviction petition be permitted to be made. This application was also contested by Respondent-tenant contending that by way of proposed amendment, the petitioner wants to change entire case.
5. During pendency of aforesaid applications filed by the petitioner, one more application under Order 6 Rule 17 CPC was filed by her on 16.07.2007 seeking slight amendment in application dated 21.12.2006 filed under Order 6 Rule 17 CPC for amendment in the main eviction petition. That application was also contested by Respondent-tenant denying the averments made in that application.
6. The Rent Tribunal, after considering the material on record, vide two separate orders dated 17.04.02008 dismissed all the three applications filed by the petitioner-landlord. Hence, these two writ petitions by the petitioner-landlord.
7. Mr. D.K. Bhardwaj, learned counsel for the petitioner has submitted that the Rent Tribunal has not appreciated the fact that Respondent-tenant suppressed the material fact and indirectly admitted the notice sent by the petitioner. The Rent Tribunal also erred in recording finding that the affidavits for additional evidence were not filed with the main eviction petition, but they were filed later on. The petitioner after having knowledge from the reply of the Respondent No. 1 that she had disputed the Will and claimed herself to be landlord, filed application for additional evidence, which was necessary in the present case. Since Respondent-tenant suppressed the fact of notice being served on her, amendments in the main eviction petition were necessary. The applications were filed by the petitioner before recording of evidence of the parties in the case. In such circumstances, amendment would not have caused any prejudice to the other party. If the amendment is allowed, Respondent-tenant would also have the r
