Punjab-Haryana High Court
Smt. Satnam Sharma vs Mrs. Nirmal Kashyap @ Nirmal Dogra And ... on 3 October, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CR No.5928 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5928 of 2013 (O&M)
Date of decision: 3.10.2013
Smt. Satnam Sharma
...Petitioner
Versus
Mrs. Nirmal Kashyap @ Nirmal Dogra and another
...Respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Puneet Jindal, Advocate for the petitioner.
Mr. A.K. Pathania, Advocate for the respondents-caveators.
****
Rakesh Kumar Garg, J.
Respondent No.1 filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") for evicting the petitioner as well as respondent No.2 from the demised premises i.e. House No.5419/1, Modern Housing Complex, Mani Majra, U.T. Chandigarh on the ground of non-payment of rent w.e.f. 1st June, 2000 at a monthly rent of ` 6,000/- excluding water and electricity charges.
The ejectment petition was contested by the petitioner submitting that tenancy has come to an end on execution of agreement to sell dated 9.9.1992 between the petitioner as well as respondent No.1 and as such the Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -2- tenancy cannot be terminated. On merits, it was denied that petitioner was inducted as a tenant in the demised premises w.e.f. 1.4.2000 at a monthly rent of ` 6,000/- per month. It was averred that respondent No.2 was the tenant in the demised premises at a monthly rent of ` 2,000/- which has already been paid till the date of execution of agreement to sell.
It is a matter of record that petitioner filed a suit for specific performance of an agreement alleged to be executed by the respondent-landlord in her favour on 9.9.1992. In the said suit petitioner averred that she was a tenant in the demised premises at a monthly rent of Rs.2,000/-. It is a further matter of record that petitioner paid rent @ Rs.2,000/- per month for the period w.e.f. 1.10.2002 to September, 2006 only in pursuance of an application filed under Order 15 Rule 5 CPC in an earlier civil suit filed for eviction and recovery of rent.
On 1.12.2007 counsel for the petitioner made a statement that he is ready to tender rent w.e.f. 1.10.2006 at the rate of ` 2,000/- per month with interest and costs, and therefore, it may be so assessed subject to the final decision in the civil suit pending in the Court of Ms. Manish Jain, Civil Judge (Junior Division), Chandigarh. In response to the said statement, learned counsel appearing on behalf of the respondent suffered statement that he has no objection if the rent, interest and costs are assessed as per statement given by the counsel for the petitioner-tenant subject to final decision in the civil suit. On the basis of the aforesaid statement the following order was passed by the Rent Controller on 1.12.2007:-
"Present:- Counsel for the parties.
Today the matter was fixed for consideration two aspects consideration on staying the proceedings well for Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -3- assessment of rent. However, ld. Counsel for the respective parties tender statement respectively to effect that respondent is ready to tender statement respectively to the effect that respondent is ready to pay rent amount @ Rs.2,000/- per month with interest and cost w.e.f. 01.10.2006 and subject to final decision in the Civil Suit pending before the learned Court of Ms. Manisha Jain, Civil Judge (Junior Division), Chandigarh. Learned counsel for petitioner also tendered statement to the effect that petitioner has no objection if the rent, interest & cost be assessed as per statement given by learned counsel for respondent subject to final decision in the case mentioned above. Statement perused. As the assessment of rent is quite interim in nature the same is provisionally assessed as Rs.2,000/- per month w.e.f. 01.10.2006 along with interest @ 6% with cost of Rs.1,000/-. Now case be adjourned for tendering the rent from the date 01.10.06 as per the above mentioned description till the month of payment. The matter be fixed for 08.01.2008."
The aforesaid rent was tendered by the petitioner on 8.1.2008 and the following order was passed on that date:-
Present: Counsel for the parties.
Rent tendered by the respondent and the same has been accepted by the counsel for the petitioner. Statement of both the parties to that effect recorded separately. Now to come up on 11.03.2008 for framing of issues."
Thereafter vide order dated 26.3.2008, from the pleadings of the parties, the following issues were framed:-
1. Whether the respondent is liable to be evicted on the ground Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -4- of non-payment of rent as alleged in the petition from the rented premises? OPP.
2. Whether the present petition is not maintainable? OPR.
3. Whether petitioner has concealed the material facts? OPR.
4. Whether the petition is bad for misjoinder of the necessary parties and if so to what its effect? OPR.
5. Whether the respondent is entitled to counter claim along with interest thereon as claimed through counter claim?
OPR.
6. Relief.
No other issue is pressed or claimed. Now to come up on 28.5.2008 for evidence of petitioner. PF, DM list of witnesses etc. be filed within one days.
Sd/-
P.K. Lal/CJ/RC/26.3.2008"
It is also matter of record that the said civil suit was decreed on 28.11.2008 for recovery of rent @ Rs.6,000/- per month.
At this stage, it may be noticed that the respondent-landlord moved an application for provisional assessment of arrears of rent which was allowed and provisional assessment of arrears of rent was made on 9.12.2009. The said order reads thus:-
"Present: Sh.S.K. Chhabra, counsel for the petitioner.
Sh.R.K. Chugh, counsel for the respondent.
Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -5- Learned counsel for the petitioner submitted that the respondent was inducted as a tenant in the demised premises w.e.f. 01.04.2000 at a monthly rent of Rs.6,000/- per month (excluding electricity bill and water charges). Further averred that the respondent did not prove to be good tenant and is in arrears of rent w.e.f. 01.06.2000 till filing of petition. The respondent has neither paid nor tendered the rent w.e.f. 01.06.2000 till filing of petition except as directed by the Court. He further submitted that rent be assessed @ Rs.6,000/- per month and the respondent be directed to pay the same to the petitioner.
2. On the other hand, the respondent had not disputed the relation of the parties as landlord and tenant qua respondent No.2 only upto September 2002, though it was contended that the rate of rent is Rs.2,000/- per month and same is paid upto October 2008.
3. Learned counsel for the parties have been heard and case file perused very carefully on the aspect of provisional assessment of rent. The respondent had not disputed the relation of the parties as landlord and tenant nor the period of rent due. It is settled law that the rate of rent has to be proved by the landlord and the payment of rent has to be proved by the tenant. The petitioner/landlord in order to substantiate it claim place reliance upon the judgment dated 28.11.2008 passed by learned CJ(SD) Chandigarh where it was held the rate of rent of demised premises is Rs.6,000/- per month.
4. The Apex Court in Rakesh Wadhawan Vs. M/s. Jagdamba Industrial Corpn. 2002(1) Rent Control Reporter 514, had observed Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -6- that the proviso to Clause (i) of Sub Section 2 of Section 13 of the East Punjab Urban Rent Restriction Act, 1949 must be read as obliging the Controller to assess by means of passing an order, the arrears of rent, the interest, and costs of litigation all the three, which the tenant shall pay or tender on the first date of first hearing of the main petition following the date of such assessment by the Controller. Such order based on in opinion formed prima-facie by perusal of the pleadings and such other material, as may be available before the Controller, on that day, would be an interim on provisional order, which shall have to give way to a final order, to be made on further inquiry, to be held later in the event of there being a dispute between the parties calling for such determination. The Controller would, however, at the outset assess the rent the interest and the costs of the application in the light of and to the extent of dispute, if any, raised by the tenant. Such amount, as a determined by Controller, shall be liable to be paid or tendered by the Controller on the first date of hearing, falling under the date of preliminary or provisional order of Controller. In view of the above observations of the Apex Court, this Court is duty bound to assess rent at the outset. Therefore, at this stage, in view of material placed on record, this Court is of the opinion that the provisional rate of rent should be assessed @ Rs.6,000/- per month w.e.f. 01.06.2000 to till date with interest @ 6% p.a. with costs.
Taking this rate of rent as provisional rent, the provisional rent is assessed as under:-
1. Arrears of rent for 115 months i.e. From 01.06.2000 to Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -7- 31.12.2009 at the rate of Rs.6,000/- per month (-) amount already paid to Rs.6,90,000 - Rs.1,46,000 = Rs.5,44,000/-
2. Interest @ 6% p.a. = Rs.1,57,760/-
3. Costs = Rs.240/-
Total = Rs.7,02,000/-
Now to come up on 11.02.2010 for payment of rent assessed (Rs.7,02,000/-) as above. Hence request of the applicant to assess provisional rent stands allowed.
Announced in open Court Sd/-
09.12.2009 Amit Sharma
Rent Controller, Chandigarh"
The petitioner challenged the aforesaid order before this Court vide Civil Revision No.17 of 2010 which was disposed of vide order dated 22.4.2010 observing as under:-
"Learned counsel, appearing on behalf of the respondent- landlord, did not dispute the fact that a civil suit filed by the landlord for the recovery of arrears of rent for the period 7.1.2002 to 6.1.2005 at the rate of Rs.6000/- per month had been decreed vide judgment and decree dated 28.11.2008 but he argued that there is nothing to debar the learned Rent Controller from assessing the provisional rent for that period. Learned counsel also reiterated the line of reasoning adopted by the learned Rent Controller in assessing future rent.
By the very nature of things, when a competent Civil Court had already upheld entitlement of the respondent-landlord to recover rent for the period 7.1.2002 to 6.1.2005, it is not open to the Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -8- learned Rent Controller to make a provisional assessment of rent for that period. Further, it is also not competent for the learned Rent Controller to assess rent for the period beyond the date of institution. However, the rate at which provisional rent was assessed (and also the amount of interest and costs) cannot be interfered with, for want of any valid grievance in respect thereof. Further, the assessment can be made only for the period of three years preceding the date of institution.
The petition shall stand allowed accordingly in the light of observations aforementioned. The learned Rent Controller shall proceed to reassess the provisional rent in the light thereof and adjourn proceedings for payment of provisionally assessed rent. If the tenant does not pay up on the first date of hearing, it will for the learned Rent Controller to dispose of the proceedings in accord with the law laid down by the Apex Court in Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corproation AIR2002 SC 2004 and a Division Bench judgment dated 7.1.2010 passed in Civil Revision No.3577 of 2006 (Rajan alias Raj Kumar Vs. Rakesh Kumar).
Disposed of accordingly."
Against the aforesaid order respondent-landlord went to the Hon'ble Supreme Court by filing SLP Nos.34937-34938 of 2010 which was granted and converted into Civil Appeal Nos.2614-2615 of 2013. The aforesaid appeals were allowed vide order dated 19.3.2013 by passing the following order:-
"Leave granted.Mohan Brij
2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -9- The landlord is the appellant before us. Aggrieved by the orders dated 22.04.2010 and 05.08.2010, passed by the High Court of Punjab and Haryana at Chandigarh, in Civil Revision No.17 of 2010 and Review Application No.CR-124-CII of 2010, respectively, she has filed these appeals.
It is relevant here to state that the competent civil Court by its judgment and decree dated 28.11.2008, came to the conclusion that the rent of the tenant premises is Rs.6,000/- per month and the tenants have not paid the same with effect from 01.06.2000. However, the civil Court found the claim of rent before
07.01.2002 to have become time barred and accordingly, held that the appellant is entitled to recover the rent with effect from 07.01.2002 to 06.01.2005 at the rate of Rs.6,000/- per month.
The appellant had also resorted to a proceedings for eviction of the tenants-respondents under Section 13 of the East Punjab Urban Rent Restriction Act on the ground of non-payment of rent. The Rent Controller by order dated 09.12.2009 had assessed the arrears of rent to Rs.7,02,000/-. Respondent No.1 assailed the aforesaid order dated 09.12.2009 before the High Court and the High Court by the impugned order dated 22.04.2010 has set aside the order of the Rent Controller and allowed the Civil Revision application. The review application filed by respondent No.1 was also dismissed by the High Court vide its order dated 05.08.2010.
Mr. Gaurav Chopra, learned counsel appearing on behalf of the appellant, submits that the view taken by the High Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -10- Court is absolutely erroneous. He submits that the Rent Controller has assessed the rent relying on the order of the civil court, which ought not to have been interfered with by the High Court in revision.
Mr. Satinder S. Gulati, learned counsel appearing on behalf of respondent No.1, is not in a position to justify the orders passed by the High Court. However, he pleads that because respondent No.1 has been deserted by her husband, she is not in a position to pay the rent. In our opinion, that shall have no bearing on the issue involved in the case. The appellant shall be entitled for the rent of the premises let out to the respondents.
We are of the opinion that the High Court while setting aside the order of the Rent Controller, committed an error and the said order deserves to be set aside. We order accordingly.
In the result, these appeals are allowed and the impugned orders passed by the High Court are set aside and that of Rent Controller is restored. No costs."
On receipt of the aforesaid order from the Hon'ble Supreme Court, copy was placed before the Rent Controller, who vide order dated 15.4.2013 adjourned the case to 30.4.2013 to enable the petitioner to tender the rent payable by the petitioner, in terms of the aforesaid order dated 9.12.2009 as upheld by the Hon'ble Supreme Court. The order dated 15.4.2013 read thus:-
"Present: Sh.S.K. Chhabra, counsel for the petitioner.
Respondent No.1 exparte.
Sh.R.S. Walia, Counsel for respondent No.2. Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -11- Today the case was fixed for awaiting orders from Hon'ble Supreme Court, certified copy of the order have been placed on record by counsel for the petitioner.
Perusal of the said order goes on to show thatr the impugned order passed by Hon'ble High Court have been set aside and order dated 09.12.2009 passed by learned predecessor of this Court have been restored. Vide order dated 09.12.2009, learned Predecessor of this Court has provisionally assessed the rent including interest and cost @ Rs.7, 02,000/- which was tobe paid by respondent No.2.
Perusal of the case file shows that the written statement was filed by respondent No.2 claiming to be tenant in the demised premises. Furthermore, it is relevant to state that order dated 09.12.2009 which has been restored by Hon'ble High Court was passed in the presence of respondent. Accordingly, in compliance of said order, this Court deems it fit that since the contesting respondent is in knowledge of order passed by Hon'ble Supreme Court, further 15 days are being granted in the interest of justice for tendering provisional rent which was assessed vide order dated 09.12.2009.
Now to come up on 30.04.2013 for tendering of rent.
Sd/-
Dr.Sukhda Pritam/CJ/RC/15.04.2013 Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -12- The petitioner failed to pay the aforesaid provisional rent on the date fixed i.e. 30.4.2013 and thus his eviction was ordered from the demised premises vide impugned order dated 30.4.2013, keeping in view the law laid down by a Division Bench of this Court in Rajan alias Raj Kumar Versus Rakesh Kumar 2010(1) RCR 386. An appeal filed by the petitioner against the aforesaid order of eviction was also dismissed. While dismissing the appeal, the Appellate Authority observed as under:-
"27. It has been held in Rajan @ Raj Kumar V. Rakesh Kumar 2010 (1) RCR 386 that if a tenant does not comply with the order on the first date of hearing after determination of the provisional rent and other ancillary expenses, by the Court, then eviction has to follow.
28. In the present case, first date of hearing was 30.4.2013 which was fixed by the learned Rent Controller for tendering of arrears of arrears of rent assessed vide order dated 9.12.2009. In Mrs. Birinder Khullar V. Maninder Singh 2011(1) RCR(Rent) 307, it has been held that learned Rent Controller has no jurisdiction to extent time. In Madan Lal V. Baldev Raj 2004(2) PLR 834, Hon'ble High Court has held that once tenant takes the risk of not paying the rent in terms of order passed by the Rent Controller, ejectment of such a tenant is bound to follow.
29. There is also no merit in the contention raised by learned counsel for the respondent No.2 that order dated 9.12.2009 was not passed by taking into consideration the decree passed by the Civil Court or order dated 1.12.2007. Learned Rent Controller in its order dated 9.12.2009 took into consideration the amount which Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -13- was paid in terms of order dated 1.12.2007 or the amount which was paid in the civil suit and thereafter decided the matter. Simply because the order does not reflect that Rent Controller took into consideration the decree passed by Civil Court, it does not mean that order is wrong. Admittedly, order dated 1.12.2007 was conditional one. Provisional assessment was made when both the parties agreed that assessment be made subject to the decision of the, civil suit.. The civil suit was decided on 28.11.2008. On decision by the Civil Court, application was moved by the petitioner for provisional assessment of rent which was finally decided on 9.12.2009. In these circumstances, it cannot be said that assessment was made twice in this case. Provisional assessment of arrears of rent was made once only whereas the earlier order passed on 1.12.2007 was conditional one as agreed by the counsel for the parties.
30. Looking from any angle, it is held that there is no merit in the appeal. Impugned order is upheld. The appeal is dismissed with costs. Memo of costs be prepared. Counsel feel is assessed at Rs.3,000/- Record be returned. File be consigned to the record room."
Challenging the aforesaid order petitioner has filed the instant petition submitting that in the instant case procedure as settled and recognized by the judgment of the Hon'ble Supreme Court in Rakesh Wadhawan's case has not been followed and therefore, the impugned order of eviction is liable to be set aside. Elaborating his argument, learned counsel for Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -14- the petitioner has vehemently argued that in the instant case, the Rent Controller had earlier passed an order of provisional assessment of arrears of rent on 1.12.2007 and therefore, no further order could have been passed assessing the provisional rent on 9.12.2009 again. It is the contention of counsel for the petitioner that law has been settled in various judgments to the effect that once the provisional rent is assessed and is tendered on the first date of hearing, thereafter, the Rent Controller ought to have given opportunity to the parties to prove their case by leading evidence and it is only at the time of passing of final order, if it is found that tenant was in arrears of rent, he is to be granted an opportunity to make up deficiency to pay such arrears of rent. According to the counsel having ignored the said principles in the instant case, the Court below have adopted a procedure unknown to law which has vitiated the Court proceedings as firstly there was no occasion for the Rent Controller to assess the provisional rent second time on 9.12.2009 and secondly the petitioner has not been granted any opportunity to make up the deficiency, after the Rent Controller came to the conclusion that the petitioner was in arrears of rent at the time of final disposal of the rent application.
On the other hand, counsel appearing for the respondent- landlord has supported the impugned orders and has argued that the provisional rent was assessed only on 9.12.2009 and the same was upheld by the Hon'ble Supreme Court and thus no fault can be found in the order dated 15.4.2013 directing the tenant to pay the arrears of provisional rent on 30.4.2013. Since the petitioner has not made the payment of arrears of provisionally assessed rent on 9.12.2009, no exception can be taken to the orders of eviction passed against her.
I have heard the learned counsel for the parties and perused the impugned judgments of the Courts below and have also perused the other Mohan Brij 2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -15- documents produced along with the petition.
At the outset, it may be noticed that much stress has been laid by the petitioner on the fact that the rent was provisionally assessed on 1.12.2007 and the same had been paid/tendered on the first date of hearing i.e. on 8.1.2008 and thereafter there was no occasion of making another assessment of provisional rent vide order dated 9.12.2009 and the said procedure is unknown to law and settled principle.
The argument as raised is incorrect and liable to be rejected. A perusal of the order dated 1.12.2007 would show that the said order was not an order of assessment of provisional rent of the demised premises. Admittedly, there was a dispute pending in the civil suit with regard to recovery of rent between the parties and in fact the offer was made by the petitioner to pay the provisional rent at the rate of Rs.2,000/- per month by way of an interim arrangement, subject to the decision of the civil litigation pending between the parties. It could further not be disputed before this Court that the order dated 9.12.2009 assessing the provisional rent was passed by the Rent Controller after the determination of rate of rent and period for which such rent was payable by the civil Court between the parties. It may further be noticed that the aforesaid order could not be made applicable because of litigation in Civil Revision No.17 of 2010 before this Court and thereafter in Civil Appeal Nos.2614-2615 of 2013 in the Hon'ble Supreme Court and the matter crystallized only after the passing of Hon'ble Supreme Court order on 19.3.2013 copy of which was placed before the Rent Controller on 15.4.2013 and on receipt of the said copy of the order the Rent Controller fixed 30.4.2013 as the date for making the tender of arrears of provisional rent as assessed by the order dated 9.12.2009 and as upheld by the Hon'ble Supreme Court.
Mohan Brij2013.10.09 16:10 I attest to the accuracy and integrity of this document Chandigarh CR No.5928 of 2013 (O&M) -16-
Since the petitioner failed to pay the provisional rent on 30.4.2013, no fault can be found with the eviction order of Rent Controller dated 30.4.2013. The argument of the petitioner that the aforesaid order amounts to 2nd assessment of the provisional rent, is not sustainable in view of the findings recorded by this Court as noticed above. The order dated 1.12.2007 was only an interim arrangement and not an order of provisional assessment of rent. Thus the order dated 9.12.2009 was not a second assessment but first assessment and the same cannot be held to be consecutive assessment of provisional rent. Therefore, the argument raised on the basis of judgment of Rakesh Wadhawan's case for grant of an opportunity to make up deficiency of rent is not available to the petitioner as he has failed to tender the provisional rent as assessed vide order dated 9.12.2009.
Not only this, the order dated 9.12.2009 assessing the provisional rent between the parties has remained subject matter before this Court and the Hon'ble Supreme Court. It may further be noticed that order dated 9.12.2009 of the Rent Controller assessing the provisional rent of the demised premises, has been upheld by the Hon'ble Supreme Court and petitioner is estopped from raising such an argument before this Court.
Thus, I find no merit in this petition.
Dismissed.
3.10.2013 (RAKESH KUMAR GARG)
Brij JUDGE
Mohan Brij
2013.10.09 16:10
I attest to the accuracy and
integrity of this document
Chandigarh