Punjab-Haryana High Court
Samanvay Bhutani vs Azad Singh Kataria on 14 October, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
CR-6830-2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.6830 of 2014 (O&M)
Date of Decision: October 14, 2014.
Samanvay Bhutani
......PETITIONER(s).
VERSUS
Azad Singh Kataria
....RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Gagandeep Goel, Advocate
for the petitioner (s).
*******
SURINDER GUPTA, J.
This revision petition is directed against the order dated 11.08.2014 passed by the Rent Controller, Gurgaon, whereby the applications of the revision petitioner under Order 21 Rule 26, 101 and Section 47 Civil Procedure Code (for short 'CPC'), were dismissed.
The facts of case, as emerge from the reading of the impugned order and the paper book, are that respondent Azad Singh filed a petition under Section 13 of Haryana Urban (Control of Rent and Eviction) Act, 1973 seeking ejectment of the petitioner from the premises bearing shop No.90 measuring 1800 square feet situated at Sheetla Mata Road, near Sector-5 Petrol Pump, Ground Floor, Gurgaon (Haryana) on the ground of non-payment of rent. Vide order dated 03.12.2013, the petitioner was ordered to be ejected from the demised premises. He filed appeal against ejectment order passed by Rent Controller, Gurgaon which was dismissed vide order dated 23.01.2014 passed by the Appellate SACHIN MEHTA 2014.10.27 18:20 I attest to the accuracy and integrity of this document Chandigarh CR-6830-2014 -2- Authority, Gurgaon. The observations made in para No.9 of the judgment by Appellate Authority, read as follows:-
"9. After hearing learned counsel for the parties and going through the record of the case, this court is of the considered opinion that the appellant-tenant has not approached the court with clean hands. First of all, he is taking stands which he never took before the learned Rent Controller. It was never pleaded before the learned Rent Controller that the rent was being paid in cash and the cheques were being returned by the respondent- landlord. Still further, no receipts etc. were produced before the learned Rent Controller. Still further, the present appeal was filed on 3.1.2014. However, it was no where disclosed that the order dated 29.10.2013 vide which provisional rent had been fixed, had been challenged before the Hon'ble High Court. On a query raised by this court, it has been admitted that a revision petition bearing CR No.7490 of 2013 had been preferred which was dismissed by the Hon'ble High Court on 6.12.2013. Once the Hon'ble High Court dismissed the revison petition against the fixation of provisional rent, it is not open for the tenant to now agitate the same before this court. The only option with him was to pay the rent which has not been done."
Learned Rent Controller while declining the application of the petitioner under Section 47 and Order 21 Rule 101 and Order 21 Rule 26 read with Section 151 CPC observed that the request of the petitioner- tenant for recalling the order vide which provisional rent was assessed and for stay of the proceedings cannot be accepted as revision petition of SACHIN MEHTA 2014.10.27 18:20 I attest to the accuracy and integrity of this document Chandigarh CR-6830-2014 -3- the petitioner-tenant challenging the order of provisional assessment of rent has already been dismissed by this Court and the appeal against the order of ejectment dated 3.12.2013 has been dismissed by the Additional District Judge (Appellate Authority), Gurgaon vide order dated 23.01.2014.
I have heard learned counsel for the petitioner and perused the paper book.
Learned counsel for the petitioner has argued that the ejectment of the petitioner was ordered on the ground of non-payment of the rent as assessed by the Court @ `23,000 per month. The area of the shop under tenancy is 1275 square feet and not 1800 square feet. The petitioner has contested the ejectment petition challenging the rate of rent as claimed by the respondent-landlord and also for the period for which it has been claimed as he had paid the rent of part of that period i.e. `6,900 from 22.07.2011 to 30.07.2011 and later on either by cheque or in cash. Learned Rent Controller has not looked into these aspects while declining the objections and seeking the stay of the execution.
On giving a careful consideration to the submission of learned counsel for the petitioner, I find that the same are not tenable. The petitioner has already availed the remedy of challenging the provisional assessment of rent by filing revision petition in this Court. He also filed appeal against the order of the Rent Controller, which was dismissed vide order dated 23.01.2014. The scope of interference by the executing Court during the execution proceedings is very limited. The SACHIN MEHTA 2014.10.27 18:20 I attest to the accuracy and integrity of this document Chandigarh CR-6830-2014 -4- executing Court can look into all questions relating to right, title or interest in the property, arising between the parties, during the execution proceedings. However, in this case, after the passing of ejectment order against the petitioner, no question of right, title or interest in the property could be raised by the revision petitioner. The other remedies available to him under law have already been availed by filing revision petition against order of provisional assessment of rent and appeal against order of Rent Controller dated 03.12.2013 ordering ejectment of petitioner from demised premises. The fact as to whether the area of the shop in question is 1800 square feet or 1275 square feet, will be a point in issue when the possession of the shop will be delivered. In his applications before the executing Court, the entire stress of the revision petitioner is on fraud played by the landlord regarding the rate of rent and the demised premises, for which he had the opportunity to impress while filing the revision petition against the order of provisional assessment by the Rent Controller and in the appeal against the order of ejectment or by filing revision petition against the order of the Appellate Authority dated 23.01.2014. The Rent Controller while executing an order of ejectment, has committed no error or law while declining the applications of petitioner.
This petition has no merits. Dismissed.
( SURINDER GUPTA ) October 14, 2014. JUDGE Sachin M. SACHIN MEHTA 2014.10.27 18:20 I attest to the accuracy and integrity of this document Chandigarh