Punjab-Haryana High Court
Arsh Mobel Enterprises And Others vs Darspal Singh on 30 August, 2024
Neutral Citation No:=2024:PHHC:113301
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(178) CR-6257-2023 (O&M)
Date of Decision: 30.08.2024
Arsh Mobel Enterprises and others .........petitioners
Versus
Darspal Singh ....... Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Paramveer Singh, Advocate, with
Mr. Manav Bajaj, Advocate, for the petitioners.
Mr. Parteek Gupta, Advocate, for the respondent.
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HARKESH MANUJA,
MANUJA J.(ORAL)
1. By way of present revision petition challenge has been laid to an order dated 29.09.2023 (Annexure P-1) P 1) passed by the Learned Rent Controller, SAS Nagar, Mohali, whereby, an application filed under Order 7 Rule 11(d) CPC moved at the instance of petitioner petitioners-tenant seeking rejection of the eviction petition stands dismissed.
2. Briefly stating, in the present case case, respondent being landlord sought eviction of the petitioners from tenanted premises i.e. Industrial Plot/Building No.108, Sector 82, JLPL, Industrial Area, SAS Nagar, Mohali, Punjab,, on the ground of arrears of rent.
rent. The eviction petition was presented before the learned Rent Controller on 05.10.2019 while invoking Section 13 of the East Punjab Urban Rent Restriction Act Act, 1949 (hereinafter referred to '1949 Act').
3. Much after putting in appearance appearance, the petitioners-tenant moved an application seeking dismissal of the Eviction Petition while submitting that after coming into force of the Punjab Rent Act, 1995 (hereinafter referred to as '1995 ' Act'), w.e.f.13.11.2013; the eviction petition filed at the 1 of 8 ::: Downloaded on - 21-09-2024 00:30:09 ::: Neutral Citation No:=2024:PHHC:113301 CR-6257-2023 2023 (O&M) 2 instance of respondent-landlord respondent landlord while invoking Section 13 of the 1949 Act was not maintainable and thus, thus, the same was liable to be dismissed. Reply to the aforesaid application was filed on behalf of respondent respondent-landlord.. The Rent Controller vide order dated 29.09.2023
29. .2023 dismissed the prayer made on behalf of the petitioners-tenant thereby resulting into continuation of eviction proceedings against agai them.
4. Impugning the aforesaid order, learned counsel for the petitioners while referring to Section 75 of the 1995 Act in conjunction with Order 7 Rule 11 (d) CPC submits that once the provisions of 1949 Act stood repealed, no eviction petition under Section 13 thereof was maintainable and thus, the same being barred by law could not be entertained. Learned counsel further submits that though the factum of aforementioned defect ect in the eviction petition filed at the instance of respondent respondent-tenant was as acknowledged by him in his reply to the application in hand,, yet no effort was made to amend the petition to cure the same. Learned counsel thus, submits that even if for the sake of argument the said defect was curable, the respondent-landlord landlord having failed to take necessary steps in this regard having waived of his right was estopped stopped from doing the same now. Learned counsel also submits that once the 1995 Act became enforceable w.e.f. 13.11.2013, the eviction petition filed under the provisions of 194 1949 9 Act being not maintainable at the first instance, any defect in this regard was not even curable. Learned counsel for the petitioner petitioners also relied upon the following judgments judgment of this Court:
(a) Randhir Singh vs. Ranjodh Singh Mudhar, 2018(1) R. C. R. (Rent)18 189 and the relevant paragraph No. No.5 thereof is extracted hereinunder:
2 of 8 ::: Downloaded on - 21-09-2024 00:30:09 ::: Neutral Citation No:=2024:PHHC:113301 CR-6257-2023 2023 (O&M) 3 "Heard learned counsel on the maintainability of the rent petition. There can hardly be any doubt that the ejectment petition was filed one year after coming into force of the 1995 Act and would be assumed to be aware that the provisions of Section 13 13-B B of the old Act were no longer available, therefore, the petition was not maintainable as the Rent Controller had lost jurisdiction to decide the case. Accordingly, the order pass passed is also a nullity and is so declared by this order."
(b) Mohinder Pal Anand vs. Inderjeet Anand, 2023 (2) RCR (Rent) 7. The relevant para No.10 thereof is reproduced hereunder hereunder:
"By way of the amendment, the respondent seeks to bring the Rent Petition under the 1995 Act, which was inadvertently filed under the Old Act on basis of mistaken legal apprehension. Admittedly, the tenancy is of the year 2016. Accordingly, the inception ooff tenancy being after 30.11.2013, as per law it has to be filed under the 1995 Act only. In my view, petition under the old Act would be non est inasmuch as vide Section 75 of the 1995 Act, the old Act stands repealed. It is therefore, clear that the prese present nt amendment is necessary and has to be permitted, as, in not doing so not only will prejudice be caused to the petitioner, but the same will also lead to multiplicity of litigation. In this regard, I draw support from judgment rendered by Hon'ble Supreme Court in case of Life Insurance Corporation of India v Sanjeev Builders Private Limited and another, Law Finder Doc Id # 2029338.
(c) Dahiben vs Arvindbhai Kalyanji Bhanusali 2020(3) RCR (Civil) 99. The relevant paras No.12.9 12.9 and 12.10 thereof are reproduced ced hereunder:
"12.9 12.9 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai Vs. State of Maharashtra (2003) 1 SCC 557; 2003 (1) RCR (Civil) 464. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
3 of 8 ::: Downloaded on - 21-09-2024 00:30:09 ::: Neutral Citation No:=2024:PHHC:113301 CR-6257-2023 2023 (O&M) 4 12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
plaint."
5. On the other hand, learned counsel for the respondent submits that the petitioners-tenant petitioner are in arrears of rent since August, 2019 having not paid even a single penny to the respondent respondent-landlord.
landlord. He further submits that mere filing of an eviction petition under the old Act i.e. 1949 Act did not cause any prejudice to the rights of the petitioners petitioners-tenant tenant and in such circumstances, necessary amendments in the eviction petition including its head note and the prayer clause can always be made with the permission of the Rent Controller and as such, the impugned order warrants no interference. Learned counsel for the respondent relied upon the jjudgments udgments of this Court in cases of Neeraj Malhotra Vs. Jaswant Singh Singh,, 2022 (2) RCR (Rent) 585 and Rajinder Kumar Sharma Vs. Raj Kumar and another,, 2022 (1) RCR (Rent) 580 in support of his contention.
6. I have heard learned counsel for the parties and gone through the paper book.
book. I am unable to find substance in the submissions made on behalf of the petitioners.
petitioner
7. It may be pointed out here that reference to the case of Dahi Ben's case (supra) would not come to the rescue of the petitioner petitioners as the same merely observes that the provision of Order 7 Rules 11 CPC is mandatory in nature and in case, the plaint does not disclose any cause of action or the same is barred by law, the Court has no option but to reject the plaint. In the present case, the said proposition cannot help the petitioner petitioners as the defect in the filing of eviction petition at the hands of respondent-
respondent landlord while while invoking Section 13 of the 1949 Act is curable one and can 4 of 8 ::: Downloaded on - 21-09-2024 00:30:09 ::: Neutral Citation No:=2024:PHHC:113301 CR-6257-2023 2023 (O&M) 5 be permitted to be rectified without there being any prejudice to the petitioners-tenant.
tenant. Furthermore, the reliance placed upon the case of Mohinder Pal Anand's Anand case (Supra) rather goes on to hhelp elp the cause of the respondent-landlord landlord as in the said decision decision, under similar circumstances it was held by this Court that in order to avoid multiple litigation, the landlord can be permitted to carry out necessary amendment in the eviction petition. Similarly, milarly, the reliance placed upon Randhir Singh Singh's case (supra) may also not help the petitioners petitioner as in that case, the eviction petition was filed under Section 13B of the 1949 Act, Act which lays down special and distinct procedure as compared to the one for proceedings under Section 13 of the 1949 Act.
8. Furthermore, itt may also be noticed here that in the present case the eviction petition was filed at the instance of respondent respondent-landlord landlord on 05.10.2019 wherein the written statement was filed by the petitioners-tenant tenant in the year 2021 whereas, the application under Order 7 Rule 11 CPC was filed after a period of almost 2 years in the year 2023 2023. It may further be pointed out here that in the written statement no such objection qua the maintainability lity of the Eviction Petition was ever raised by the petitioners.. It was only after a direction was issued by this Court ourt on 18.07.2023 in CR No.2452 of 2023 filed at the instance of respondent respondent-landlord whereby, the Rent Controller was requested to expedite te the adjudication on the assessment of provisional rent, the petitioners-tenant moved an application under Order 7 Rule 11 CPC apparently and purposely for causing delay thereupon. Further, the he provisional assessment of arrears of rent was made by the rent Controller vide order dated 16.10.2023. Relevant paragraph No Nos.5 .5 and 6 thereof are extracted hereunder:
"5.
5. I have heard ld. Counsel for the parties and gone through the case file minutely. The relationship of landlord-tenant landlord tenant between the parties has been 5 of 8 ::: Downloaded on - 21-09-2024 00:30:09 ::: Neutral Citation No:=2024:PHHC:113301 CR-6257-2023 2023 (O&M) 6 admitted. Both the parties have tendered their calculation sheets and they have admitted the rate of rent which is as under:
under:-
September 2019 to April 2020@Rs.
2020@Rs. 1,28,304/
1,28,304/- x 8
months =Rs.10,26,432/
=Rs.10,26,432/- alongwith interest
calculated as per the formula (arrears (arrears of rent x number of months + 1 /400)which comes to Rs.23,094.72/ and in total it comes to Rs.23,094.72/- Rs.10,49,526.72/-
Rs.10,49,526.72/ May 2020 to April 2021 @ Rs.1,38,568/ Rs.1,38,568/- x 12 months =Rs.16,62,816/ =Rs.16,62,816/- alongwith interest calculated as per the formula (arrears of rent x number of months + 1 /400) which comes to Rs.54,041.52 and in total it comes to Rs.17,16,857.52/-
Rs.17,16,857.52/ May 2021 to April 2022 @ Rs.1,49,653/ Rs.1,49,653/- x 12 months=Rs.17,95,836/ alongwith months=Rs.17,95,836/-alongwith interest calculated as per the formula (arrears of rent x number of months + 1 /400) which comes to Rs.58,364.67/ Rs.58,364.67/-and in total it comes to Rs.18,54,200.67/-
Rs.18,54,200.67/ May 2022 to Sept 2023 @ Rs.1,49,653/ Rs.1,49,653/- x 16 months =Rs.23,94,448/ =Rs.23,94,448/- alongwith interest calculated as per the formula (arrears of rent x number of months + 1 /400) which come comes to Rs.1,01,764.04/ and in total it comes to Rs.1,01,764.04/- Rs.24,96,212.04/-
Rs.24,96,212.04/
Total Rs.71,16,796.95/-
Rs.71,16,796.95/
6. As such, in the opinion of this court and as stated above in the calculation sheet placed on record by the petitioner, the respondents/tenants are directed to pay the aforesaid amount i.e. Rs.
71,16,796.95/ on or before 10.11.2023 failing which, they sha 71,16,796.95/- shall ll be liable to be evicted from the demised premises.
It has not been disputed even by the learned counsel appearing on behalf of petitioners petitioner that since August 2019 not even a single penny towards arrears of rent has been paid to the respondent respondent-landlord and in n such circumstances, no discretion needs to be exercised in their favour especially when no prejudice at all has been shown to be caused to them on account of 6 of 8 ::: Downloaded on - 21-09-2024 00:30:09 ::: Neutral Citation No:=2024:PHHC:113301 CR-6257-2023 2023 (O&M) 7 defect in filing of eviction eviction petition under the provisions of 1949 Act, which is purely curable especially the authority and jurisdiction to entertain the eviction petition under the 1995 Act also vesting with the same Authority i.e. the "Rent ent Controller" and the arrears of rent aalso lso available as ground of eviction made under both Acts.
9. In the present case, though admittedly the eviction petition has been filed under Section 13 of the 1949 Act on the ground of arrears of rent, rent however, there is no material difference in the procedure to be adopted under the two different Acts Act i.e. 1949 Act as well as 1995 Act while dealing with the eviction petitions. In such circumstances circumstances,, the defect at best being purely curable, respondent can be permitted to file an amended petition witho without ut carrying out any material alteration in the pleadings by making necessary amendment to achieve the purpose of converting the eviction petition filed under 1949 Act to an eviction petition in terms of the 1995 Act including the essential adjustment in the head note as well as the prayer clause to make it fall under the provisions of Section 20 of the 1995 Act. Aforesaid view is even derived from the observation made by this Court in case of Rajinder Kumar Sharma Vs. Raj Kumar and another, 2022 (1) RCR (Rent) 880. 880 The relevant paragraph Nos.6 to 9 are extracted hereunder:
"6. The argument of the learned counsel representing the respondents is erroneous because Section 75 of the 1995 Act, repealed the 1949 Act. The ejectment petition was filed before the Rent Controller in the year 2018. Admittedly, at that time, the 1995 Act came into force with effect from 30.11.2013. Whereas the Punjab (Amendment Act), 2014, came into force with effect from 29.08.2014. The Punjab Rent (General Rules), 2015 were enforce with effect from 05.06.2015.
enforced
7. However, there is another aspect of the matter. Admittedly, the ground on which the ejectment have been sought are available under the 1995 Act. The rent petition is at an initial stage. At the most, the petition can be said to be suffering from a curable curable defect. The question is "whether the High Court in 7 of 8 ::: Downloaded on - 21-09-2024 00:30:09 ::: Neutral Citation No:=2024:PHHC:113301 CR-6257-2023 2023 (O&M) 8 exercise of supervisory jurisdiction dismiss the ejectment petition or permit a formal amendment so as to advance the cause of justice.
8. In the considered view of the Court, the second option would be in consonance with the intention of the Statute as the statute is a beneficial legislation. The Courts have been constituted to do substantive justice between the parties while making sincere endeavours to follow the procedural law.
9. With that spirit in mind, the eviction petition would be deemed to have been amended and filed under the new Act, i.e. the 1995 Act. The Rent Controller is directed to proceed with the matter in accordance with law."
10. The present petition is thus disposed of with a direction that the he amended petition be presented on the next date of hearing before the learned Rent Controller and with effect from the said date date, the period of seeking leave to contest by the respondent shall commence. However, the assessment ssessment of provisional provision rent as made by the learned Rent Contro Controller vide order dated 16.10.2023 shall remain unaltered, subject to outcome of any challenge made against it.
11. Disposed of accordingly.
(HARKESH KESH MANUJA) MANUJA 30.08.2024 JUDGE anil Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 8 of 8 ::: Downloaded on - 21-09-2024 00:30:09 :::