MAHENDRA KUMAR JAIN Vs. APPELLATE RENT TRIBUNAL, AJMER

JUDGEMENT

(1.) The legal questions that fall for our determination in this reference made by the Division Bench of this Court read as under:

(2.) The Background facts giving rise to the legal issues may be summarized thus: The appellant-Mahendra Kumar Jain is a tenant since 10.10.2001 in commercial premises i.e. two shops situated at Sardar Patel Marg, Ajmer, owned by the landlord-Smt. Shail Bhargava and others, the respondent nos. 3 to 6 herein. The respondent-landlord filed a petition under Section 9 of the Rajasthan Rent Control Act, 2001 ('the Act of 2001') before the Rent Tribunal, Ajmer, seeking eviction of the appellant-tenant from the rented premises, on the ground of default in payment of rent for the period from 1.7.2005 to 31.10.2005. The appellant-tenant contested the petition by filing a reply thereto, taking the stand that the respondent-landlord did not disclose her bank account number in the notice served and thus, the mandatory condition precedent for maintaining the petition seeking eviction on the ground of default, was not satisfied. Besides, it was averred that pursuant to the notice served, the arrears of rent due was deposited and therefore, there is no default in payment of rent in terms of Section 9 (a) of the Act of 2001. After due consideration of the evidence on record, the Rent Tribunal arrived at the finding that the appellant-tenant has committed default in payment of rent and accordingly, he was directed to be evicted from the premises in question vide judgment dated 21.4.2007. Aggrieved thereby, the appellant preferred an appeal under Section 19(6) of the Act of 2001, before the Appellate Rent Tribunal, Ajmer, which stood dismissed vide judgment dated 21.12.2009. Assailing the legality of the judgments of the Rent Tribunal and the Appellate Rent Tribunal, the appellant preferred a writ petition purportedly under Article 226 and 227 of the Constitution of India before this Court. The writ petition stood dismissed by the learned Single Judge vide judgment dated 10.5.2019. The appellant challenged the legality of the judgment passed by the learned Single Judge of this Court by way of intra-Court appeal under Rule 134 of the Rules of High Court of Rajasthan, 1952 ('the Rules of 1952').

(3.) During the course of the hearing of the intra-Court appeal, learned counsel appearing for the respondents raised a preliminary objection regarding maintainability of intra-Court appeal before the Division Bench. The respondents contended that where the High Court renders judgment or final order in exercise of its power of superintendence, an appeal to the Division Bench of High Court from the judgment of the learned Single Judge is not maintainable. Drawing the attention of the Court to para 16 of the judgment of the learned Single Judge, learned counsel appearing for the respondents while relying upon the decision of the Apex Court in Shalini Shyam Shetty v. Rajendra Shankar Patil: (2010) 8 SCC 329, contended that the order impugned is passed by the learned Single Judge while exercising jurisdiction under Article 227 of the Constitution of India, and therefore, the same is not appealable. The Division Bench noticed that while rendering the decision in Hindustan Petroleum Corporation Ltd. v. M/s Shyam Narain Mehra Brothers: 2015 (3) RLW 2691 (Raj.) holding that in cases of challenge to the orders of the Rent Tribunal and Appellant Rent Tribunal in landlord-tenant disputes, the exercise of the power would be under Article 227 and not under Article 226 of the Constitution of India and therefore, the appeal would not be maintainable, the Bench did not notice the earlier Bench decision in Ramswaroop v. Charanjeet Singh and Ors.: 2008 (1) WLC 47, laying down that the appeal would be maintainable. The Court also observed that the correctness of the decision in Hindustan Petroleum Corporation Ltd.'s case has been doubted by the subsequent Division Benches and accordingly, opined that it has become necessary to obtain an authoritative pronouncement from the Larger Bench on the question; whether the appeal against the judgment of the learned Single Judge, upholding or reversing the judgment of the Appellate Rent Tribunal and/or Rent Tribunal would be maintainable. Hence, this reference.