1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER
: S.B. CIVIL REVISION PETITION NO.197/2012 Bhanwar lal Vs. Ram Avtar Date of Order ::
06. h December, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Manoj Bhandari, for the petitioner. Mr. C.P. Soni, for the respondent. ---- BY THE COURT: This revision petition under Section 115 CPC is directed against order dated 24.09.2012 passed by the Additional Civil Judge (Junior Division), Merta City, whereby, the application filed by the petitioner under Order VII, Rule 11 CPC has been dismissed. The facts in brief may be noticed thus: the plaintiff Ram Avatar filed a suit for eviction, arrears of rent and mesne profit against the petition-defendant after complying with the requirements of Section 106 of the Transfer of Property Act, 1882 ('the T.P. Act'); an application under Order VII, Rule 11 CPC was filed by the petitioner on 14.09.2011, inter alia, with the averments that earlier an application was filed under Order VII, Rule 11 CPC on 02.08.2004, the said application was not 2 decided on merits and was dismissed as not pressed on 08.04.2005; the Rent Control Act, 2001 ('the Act of 2001'), which came into force on 25.02.2003 and where after Rajasthan Rent Control (Second Amendment) Act, 2005 ('the Act of 2005') came into force on 22.02.2006 and the Act of 2001 was made applicable to all Municipalities and, therefore, the suit filed by the plaintiff under the provisions of the Act of 2001 is not maintainable; it was also claimed in the application that suit for enhancement of rent is maintainable only under provisions of Section 6 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act of 1950') and as there is no provision in the T.P. Act to increase the rent, the suit was liable to be dismissed. After hearing the parties, the trial court vide its order dated 24.09.2012 dismissed the application filed by the petitioner, inter alia, holding that despite coming into force of the Act of 2005 w.e.f. 22.02.2006, the Act of 2001 was not applicable to Merta City and as the suit was filed after the repeal of the Act of 1950, the same could have been filed under provisions of the T.P. Act. It was submitted by learned counsel for the petitioner that a bare reading of provisions of Section 1(2) of the Act of 2001, Section 2 of the Act of 2005 and the Notification dated 22.02.2006 it is apparent that the provisions of the Act of 2001 came into force and was applicable to Merta City w.e.f. 22.02.2006 and in view of provisions of Section 18 of the Act of 3 2001, it is only the Rent Tribunal and not the Civil Courts, who have the jurisdiction to hear and decide the petitions relating to disputes between landlord and tenant and, consequently, the trial court was bound to allow the application under Order VII, Rule 11 CPC filed by the petitioner. It was further submitted that if the Act of 2001 is not applicable to Merta City, then in that case the suit could have been filed only with reference to provisions of the Act of 1950 and the suit under the T.P. Act was not maintainable. Per contra learned counsel for the respondent submitted that the suit was filed in the year 2003; repeated applications under Order VII, Rule 11 CPC have been filed; while the first application was got dismissed as not pressed, the second application was dismissed on merits. Plea, which is sought to be raised now cannot be permitted to be raised; repeated applications raising the same issues all over again cannot be entertained; the trial court has clearly observed that attempt is being made only with a view to delay the disposal of the suit; the trial court has rightly rejected the application filed by the petitioner and the same does not call for any interference. Reliance was placed on judgment of this Court in Ram Narayan v. Smt. Asha Devi :
2010. (3) RLW2426(Raj.) and Nand Kishore & Anr. v. Vishwanath Kayal :
2013. (1) CDR270(Raj.). I have considered the rival submissions made by learned counsel for the parties. 4 The issues sought to be raised by learned counsel for the petitioner regarding effect of coming into force of the Act of 2005 and applicability of the Act of 1950 in areas where the Act of 2001 is not applicable are no more res integra and stands concluded by the judgments of this Court. This Court in Rampal v. All Brahmin Swarnkar Panchayat & Ors. :
2007. (3) DNJ (Raj.) 1363 held and observed as under:-
“5. Much was sought to be argued, that there has been amendment in the new Rent Control Act, 2001, being Rajasthan Rent Control (Second Amendment) Act, 2005, whereby in sub-section (2) of Section 1, the expression “having a population exceeding fifty thousand as per 1991 Census”. has been deleted, and this amendment has been brought into effect vide notification dated 20.02.2006, with immediate effect, and therefore, since the requirement of fifty thousand population has been deleted, the Rent Control Act, 2001 obviously becomes applicable to the Merta municipal area as well.
6. I am afraid that that is not correct interpretation of the provisions of Section 1(2).
7. For ready reference, I may quote the provisions of sub-section (2) of Section 1 of the Act of 2001, which read as under:- “(2) It shall extend in first instance to such of the municipal areas which area comprising the District Headquarters in the State and later on to such of the other municipal areas having a population exceeding fifty thousand as per 1991 Census as the State Government may, by notification in the Official Gazette, specify from time to time.”. 8. From out of the above provision, after deletion of the words deleted by Second Amendment Act, the remaining part of sub- section (2) would read as under: “(2) It shall extend in first instance to such of the municipal areas which are comprising the District Headquarters in the State and later on to such of the other municipal areas as the State Government may, by notification in the 5 Official Gazette, specify from time to time.”. 9. In my view, thus, on the reading of the consequently amended sub-section (2) also, it cannot be said that the Act is applicable to the municipal area of Merta City, in absence of any notification, published in Official Gazette, specifying the Act to have become applicable to this area. In that view of the matter, though for different reason, I do not find any sufficient ground to interfere with the impugned order.”
. The submissions made by learned counsel for the petitioner with reference to issuance of Notification dated 22.02.2006 bringing the provisions of the Act of 2005 into force and, consequential ipso facto applicability of Section 1(2) of the Act of 2001 has no basis. Sub-section 2 of Section 1 of the Act of 2005 provided that the Act of 2005 shall come into force with effect from such date, as the State Government may, by Notification in the Official Gazette appoint. The Notification dated 22.02.2006 reads thus:- “सख प. 8 (ग) (11) न म/स श /05/प र/1156:-र जस क र न न ण अध न म, (द त सश ) अध न म, 2005 (2006 अध न म सख
1) ! र 1 ! उप- र (2) # तहत पदत शक) * प ग रत# ह+ए र ज सर र, र जस क र न न ण अध न म, (द त सश ) अध न म, 2005 एतद र तत ल पभ स# प त 2 रत ह3 ।" A bare reading of the said Notification would reveal that the same has been issued under Sub-section (2) of Section 1 of the Act of 2005 for bringing into force the Act of 2005 only and as held by this Court in the case of Rampal (supra) for making applicable the Act of 2001 to a particular municipality, a Notification under Section 1 (2) of the Act of 2001 would be necessary, therefore, the plea raised by the petitioner in this regard has no basis. 6 So far as the submissions of learned counsel with regard to Section 18 of the Act of 2001 are concerned, in absence of applicability of Act of 2001, the issue raised is wholly academic and does not advance the cause of the petitioner. The issue relating to maintainability of a suit under the T.P. Act and applicability of provisions of the Act of 1950 at place where the Act of 2001 is not applicable also stands concluded by judgment of this Court in the case of Ram Narayan (supra), wherein, this Court held and observed as under:- “In view of the aforesaid discussion in my view, the Rajasthan Rent Control Act, 2001 has been made applicable w.e.f. 1.4.2003 to those areas mentioned in the notification dated 21.3.2003 issued in exercise of the powers conferred under sub-section (2) and (3) of Section 1 of the New Act 2001 and not in any other area and on repeal of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Old Act, 1950, it shall not be applicable to the areas which have not been made applicable under the New Act by notification dated 21.03.2003. All these matters relating to a suit filed under Section 106 of the Transfer of Property Act and have been decreed by the trial Court and on an appeal the decree of the trial court has been affirmed. There is concurrent finding of facts recorded by the Courts below in respect of the appeals challenging judgment and decree of eviction and therefore, I do not find any error in the concurrent finding of facts recorded by two courts below.”
. Following the judgment in the case of Ram Narayan (supra) this Court in the case of Nand Kishore & Anr. (supra) again elaborately considered the issue and concluded as under:-
“17. The net result of all this discussion is that no different view is possible to be taken from the one taken by the learned Single Bench of this Court in the case of Ram Narain & Ors. vs. Smt. Asha Devi & Ors. (supra) even in the light of Section 27 of the Act. Thus, it is held that after 7 the repeal of the old Act and commencement of the new Act with effect from 1.4.2003, presently the provisions of the old Act are not applicable also to the areas of other Municipal Towns of the State of Rajasthan and the relationship between a landlord and tenant is to be governed by the provisions of the Transfer of Property Act.”
. Consequently, there is no substance in the revision petition and the same is, therefore, dismissed. No costs. (ARUN BHANSALI), J.
A.K.Chouhan/-