Judgment

Reserved on ::: 14/02/2022

Pronounced on ::: 21/02/2022*

Reportable (1) This Court is called upon to examine the legality, propriety and correctness of the order dated 05.01.2022, passed by the Maintenance Tribunal and S.D.O. (North), Jodhpur (hereinafter referred to as ‘the Tribunal’) whereby the petitioner and respondent Nos.3 and 4 each have been ordered to deposit a sum of Rs.3,000/- per month in the bank account of respondent Nos.1 and 2 – lesser privileged parents.

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* Reviewed on 08.03.2022 in Review Petition No.76/2022

(2) Had this order confined to payment of maintenance, this Court would not have interfered in the matter, but the indulgence of this Court is necessitated because of the other direction relating to eviction of the non-applicant No.3 (petitioner herein) who has been residing in the house of the applicants (respondent Nos.1 and 2 herein).

(3) The conundrum, which is to be solved in the present case is, whether pursuant to an application filed under Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act of 2007’) read with Rajasthan Maintenance of Parents and Senior Citizens Rules, 2010 (hereinafter referred to as ‘the Rules of 2010’), can an order of eviction be passed by the Tribunal constituted under the Act of 2007.

(4) The factual canvas of the case, if unfurled, would bring to fore nothing except acrimonious relationship between the petitioner with his parents and his siblings, which has unfortunately become an order of the day.

(5) Hence, avoiding detailed facts, this Court is outlining the facts which are quintessential for delving into the question involved.

(6) The respondent Nos.1 and 2 filed an application under Section 5(A)(B) of the Act of 2007 read with Rule 4(1)(3) of the Rules of 2010, inter alia, bringing to the notice of the Tribunal that they being senior citizens of 75 years and 82 years of age are facing financial constraints, as their three sons (petitioner and respondent Nos.3 and 4 herein) are neither taking their care nor are they maintaining them. Arraying all the three sons, it was prayed that each of them be directed to pay a monthly maintenance amount of Rs.10,000/-.

(7) In the application so filed, not only the sustenance was sought for but also an order of ouster of all the three sons (the petitioner; respondent Nos.3 and 4) was prayed so that they could live in their residential house situated at Plot No.2, Artisan Colony, Masooriya, Jodhpur (hereinafter referred to as ‘the subject house’).

(8) A reply to the application was filed by the present petitioner asserting that the respondent Nos.1 and 2, despite having sufficient means to meet their ends, filed the petition with a view to harass the petitioner. Various other averments were also made, which are hardly of any use for the issue involved.

(9) The Tribunal decided the subject application vide its order dated 05.01.2022 and directed the petitioner so also respondent Nos.3 and 4 to pay Rs.3,000/- per month as maintenance to their parents. All the three sons were also directed to hand-over the possession of the subject house to the applicants-parents, with a simultaneous direction to the Station House Officer, P.S. Dev Nagar to ensure compliance and submit a report.

(10) Having visited with an order of eviction, the petitioner (non- applicant No.2) has invoked extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India with a plea that the Tribunal cannot pass an order of eviction.

(11) Mr. O.P. Mehta, learned counsel for the petitioner, argued that the impugned order to the extent of forceful eviction of the petitioner is illegal and fundamentally without jurisdiction, as the Tribunal does not possess any such power under provisions of the Act of 2007.

(12) He argued that section 23 of the Act of 2007 is the only provision in the entire Act, which deals with immovable property