Punjab-Haryana High Court
Daya Nand Arya, Girls High School vs Sh. Lakshmi Chander, Prop. Haryana ... on 13 November, 1990
Equivalent citations: (1991)99PLR172
ORDER A.L. Bahri, J.
1. This revision petition has been filed by the decree-holder Daya Nand Arya Girls High School, Karnal, against order of the Executing Court dated August 12, 3989, whereby objections filed by the judgment-debtor were accepted and execution application was dismissed.
2. The ejectment of the respondent was ordered. The petitioner decree-holder filed execution case No. 37 of 1982 wherein a compromise was entered into on August 23, 1982 The judgment debtor paid a sum of Rs. 2,000/- and argeed to pay Rs. 10,960/-, arrears of rent for the period November 1, 1973 to August, 1982 in instalments to the decree holder. The first instalment of Rs. 1500- was payable on October 7, 1982. It was agreed that on failure to make payment of the instalment the decree holder was to get the tenant ejected in due course law The judgment-debtor did not pay the installments for a couple of years Thus execution application was filed. The judgment-debtor filed objections inter alia stating that on payment of Rs. 3,400/- in lumpsum the tenancy stood renewed on January 18, 1 83. The decree-bolder admitted the payment of Rs. 3,400/ but denied existence of new tenancy. Father of the objector Shri Notan Dass had asserted creation of new tenancy on payment of Rs. 3,400/-. His objections were dismissed. On the pleadings, the Executing Court framed following issues :-~ (1) Whether the decree is not executable as alleged ? OPD (2) Whether the present objection petition is not maintainable?; OPD (3) Whether the objector/applicant has no locus standi to file and maintain the present objection petition ? OPDH (4) Whether objection petition is abuse of the process of law ? If so, its effect ? OPDH.
(5) Relief.
3. Under issue No. 1 it was held that on payment of Rs. 3,400/- on January 18, 1983 the payment of arrears of rent stood discharged and fresh tenancy came into existence. The eviction order dated March 17, 1975 thus could not be executed. In view of this finding issue Nos. 2 and 4 were decided against the decree holder. In the result the execution application was dismissed and objections filed by the judgmentdebtor were accepted.
4. The contention of Shri Chatsr Bhuj Goel, Advocate for the petitioner, is that by mere acceptance of arrears for rent after passing of the of order of ejectment did not create fresh tenancy Since the terms and condition of the compromise entered into in execution were not complied with, the decree-holder was within his rights to execute the order of ejectment. In support of this contention reliance has been placed on the decision of this Court in Ram Diwaya v. Kanhaya Lal, 1972 Cur. L J. 482. One of the points urged in this case was with respect to waiver acceptance of rent due In para 15 of the judgment after making reference to the Full Beach decision of this Court in Bhaiya Ram v. Mabavir Parshad, (1968) 70 P. L. R. 1011., it was observed "waiver is a deliberate and conscience act on the part of a person as distinguished from estoppel, which can be created by .law In the present case, however it has not been, found by the Rent Controller that the money order receipts, referred to by the learned counsel, related to the pavement of rent regarding the premises in question. Besides, It has been held that the mere acceptance of rent would not amount to waiver, and would not be considered as an assent to a new contractual tenancy." 'Reliance was also placed on decision of the Supreme Court in Ganga Dutt Murarka v. Kanik Chandra Dan and Ors., A. I R. 1961 S. C. 107. That was a case of contractual tenancy. After expiry of the period of tenancy the tenant continued in possession by virtue of protection of Rent Law, by payment and acceptance of the contractual rent. It was held that status was not that of a tenant holding over and in its terminating she tenancy under Section 106 of the Transfer of Property Act was not required, in Brij Mohan and Ors. v. Jag Mohan and Ors., A. I. R. 1972 Puoj 317., the question involved was relating to habitability of a statutory tenant. The question involved therein was as to whether by mere acceptance of arrears of rent by the landlord due from the deceased tenant prior to his death from his legal representatives and giving a receipt in the name of the deceased tenant . would create a fresh tenancy in favour of the legal representatives. The answer was given in the negative. Keeping in view the ratio of the aforesaid decisions the facts of the present case may be recapitulated. Alter the ejectment order was passed and execution was filed wherein on the basis of statement made by Lakshmi Chand judgment-debtor the order was passed as under on August 21, 1982 :-
"Laxmi Chand J. D. has made a statement that he hat already paid Rs. 2.000/- to the D. H. on' 1.9.1982 and that the has to pay Rs. 10,9 0/- as arrears of rent for the period from 1.11.1973 to 1.8.1982 to the D. H. He has farther stated that he would pay the balance amount of Rs. 10,960/- in monthly instalments of Rs. 1,500/- (per) each to the D, H. and he would pay the first instalment on 7-10-1982 to the D. H and in case of failure of payment of any instalment the D. H would be entitled to get the premises ejected in due process of law He has farther stated that he would pay the each instalment on 7th day of every month The D H. has also made a statement. Ha has agreed to the terms and conditions stated by the D. H."
Copy of the statement made by Lakshmi Chand has also been read over No doubt in the statement Lakshmi Chand had stated that on failure to pay the instalment as agreed to, the warrant of possession could be implemented, however, the orders passed which has been re- produced above does not incorporate the same but mentions that on failure to pay the instalments the decree-holder would be entitled to get the premises ejected in due; process of law. Thus, agreement aforesaid does not constitute a fresh tenancy Rather it delays the process of execution. The intention of the judgment-debtor was the sane i. e. to delay the execution and to pay the arrears of rent in instalments. If. the arrears had been paid as agreed to, be was cot to be rejected. It is entirely a different thing that if arrears had been paid as agreed, he was not to be evicted from the premises. Since the order was net complied with, the further question arises as to whether on payment of Us. Rs. 400/- subsequently a fresh tenancy came into existence and the execution could not proceed. The receipt in original was net produced which could be the primary evidence of the contents thereof, Mere fact that part of the arrears were accepted subsequently is no ground to held creation of fresh tenancy.
4. For the 'reasons recorded above, this revision petition is allowed with costs. The impugned order is set aside. The execution will proceed. The parties through their counsel are directed to appear before the Executing Court on 3-12-1990.