Punjab-Haryana High Court
Dhani Ram And Ors. vs Madan Lal And Anr. on 5 March, 2003
Equivalent citations: (2003)134PLR564
JUDGMENT M.M. Kumar, J.
1. This petition filed by Dhani Ram and another, the landlord-petitioners under Sub-section 5 of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity 'the Act') challenges order dated 17.1.1981 passed by the learned Appellate Authority, Jalandhar, dismissing their appeal landlord-petitioner against the order dated 31.7.1980. The Rent Controller in his order dated 31.7.1980 had dismissed the ejectment petition of the landlord-petitioners by holding that the rent tendered was valid and in view of the facts that earlier ejectment petition filed by the landlord-petitioners was in respect of the same period, the landlord-petitioners were estopped from filing the ejectment petition. The rate of rent held by both the Courts is Rs. 450/- and not Rs. 500/- as claimed by the landlord-petitioners.
2. The landlord-petitioners earlier filed ejectment petition registered as EA No. 44 of 1975 on 1.11.1975 claiming that the tenant-respondents were in arrears of rent from 13.4.1950 to 12.10.1975. A claim was made that total rent of Rs. 12,750/- was due to the landlord-petitioners and only Rs. 1000/- stood paid to them. Therefore, the total arrears claimed was Rs. 11,750/-. On 30.11.1975, the tenant-respondents deposited an amount of Rs. 1430/- representing Rs. 1285/- as rent, Rs. 120/- as interest and Rs. 25/- as costs. This is evident from order dated 26.11.1975 Ex.P-8. It is also pertinent to mention that the landlord-petitioners accepted the tender under protest. Thereafter on 22.5.1976, the ejectment petition was withdrawn on the statement made by Sh. Muni Lal, Advocate who had appeared for the landlord-petitioners.
3. The ejectment petition from which the instant revision petition had arisen was filed being EA No. 30 of 1978 claiming arrears of rent @ Rs. 500/- p.m. The grounds of ejectment set up by the landlord-petitioner in his petition read as under:-
a) Rent due from the respondents until 12.10.75 was Rs. 12750/-. They rnake payment of Rs. 10,000/- to Dliani Ram on different occasions and also paid an amount of Rs. 1285/- towards rent and interest through the Rent Controller in the proceedings of the previous ejectment application, leaving a balance of Rs. 10464.80 towards rent still due from them.
b) The respondents also did not pay the rent from 12.10.75 onward and upto the institution and also house tax.
c) The respondents without the consent of the applicants have put up a new shed in front of the shop after demolishing and removing the old one. They have misappropriated the material of the old shed.
4. On the first date of hearing, arrears of rent representing the period from 13.12.1975 to 12.8.1978 alongwith interest and costs assessed by the Rent Controller were tendered, which was accepted by the landlord-petitioners under protest. At a later stage, the firm Madan Lal Gujjar Mal was impleaded as respondent and the firm also tendered rent, interest and costs, which was accepted too under protest by the landlord-petitioners. The following issues were framed:-
"1. Whether the tender of arrears of rent is invalid? OPA
2. Whether the shop was taken on rent by M/s Madan Lal Gujjar Mal and not by Madan Lal at the rate of Rs. 450/- per year? OPR
3. Whether there exists any relationship of landlord and tenant between the applicant No. 2 and the respondent? OPA
4. Whether the respondents are liable to ejectment on the grounds mentioned in para No. 6 of the application? OPA
5. Whether the present application is barred by the acts and conducts of the applicants? OPA
6. Relief."
5. On issues No. 1 and 5, the findings recorded by the Rent Controller are that the rate of rent was Rs. 500/- and the rate of rent which is subject matter of dispute in the present proceedings was 13.12.1975 to 12.8.1978. However, tenant-respondent No. 1 had tendered rent from 13.12.1975 to 12.8.1978 and respondent No. 2 had also tendered rent from 13.12.1975 to 12.4.1980. The tendering of rent was held to be valid. It was also held that the landlord-petitioners are estopped by their acts and conducts from claiming ejectment of the tenant-respondents on the ground of non-payment of rent in respect of the period before 30.11.1975.
6. On issues No. 2 and 3, it was held that in an earlier litigation, the Rent Controller had held that the tenant in the demised premises was the firm M/s Madan Lal Gujjar Mal under Dhani Ram. The matter was taken before the appellate authority and the order passed by the Rent Controller was upheld by the order Ex.R-3. In support of the finding that the firm M/s Madan Lal Gujjar Mal was the tenant, that reliance has been placed on the entries of the account books of that firm for the years 1952-53.
7. On issue No. 4, no argument was raised in the Courts below and, therefore, it was decided against the landlord-petitioners and in favour of the tenant-respondents,
8. The Appellate Authority concurred with the findings of facts recorded by the Rent Controller and held as under:-
"........But it appears that the landlords were not sure as to who was their tenant and, therefore, they impleaded M/s Madan Lal Gujjar Mal as respondent No,2 claiming ejectment order against them in the alternative. Earlier a litigation was fought between Dhani Ram, one of the appellants and M/s Madan Lal Gujjar Mal. In that litigation also the Rent Controller held that M/s Madan Lal Gujjar Mal were tenants and the matter was taken before the learned Appellate Authority, Jalandhar. Ext.R.3, is the certified copy of the judgment delivered by the learned Appellate Authority in which this point was again thrashed and ultimately held that M/s Madan Lal Gujjar Mal were tenants and not Madan Lal in his individual capacity. That decision is binding upon the appellants and now it does not behave them to reagitate the same point once again.
..............Here the application was withdrawn by the landlord himself presumably on arriving at some compromise with the tenant. It was well settled policy of law that no one should be vexed twice for the same fault. Even if we assume that the provisions of order 23 Rule 1(4), CPC are not applicable still the principles laid down by this provision of law should be applicable on the ground of public policy. The intention of the framers of the Eat Punjab Urban Rent Restriction Act was to give protection to the tenant. But if the argument of the learned counsel for the appellants is allowed to prevail then their will be no end to harassment to the tenants. I am, therefore, of this considered opinion that the landlords should not be permitted to include the arrears of rent which were claimed in the previous ejectrem application.
............This ejectment application was filed on 16.5.1978 and in this way the rent required to be tendered was for the period from 13.10.1975 to 12.4.1978. The rent for this period calculated at the rate of Rs. 450/- comes to Rs. 1125/- but the respondent No. I tendered Rs. 7200/- with interest on 26.7.1978 and thereafter when respondent No. 2 was impleaded as a party another sum of Rs. 1950/- with interest was tendered on 21.3.1980. Thus, by no stretch of imagination the tender was invalid. In fact, the learned counsel for the appellants conceded that if he is estopped from adding the period involved in the earlier ejectment application then the tender made in this case is valid."
9. I have heard Mr. Vikas Bahl, learned counsel for the landlord-petitioners, who has submitted that both the Courts below have failed to determine the rate of rent and it cannot be claimed that there is a finding of fact concluding that the rate of rent was Rs. 450/-. According to the learned counsel, the evidence produced by the landlord-petitioners clearly pointed out the rate of rent to be Rs. 500/- because at the time of renting out the premises in dispute, AW-2 and AW-5 were present. He has also pointed out that even the account books Ex.A-9 produced by the tenant-respondent on their application have stated that rate of rent to be Rs. 415/-. Therefore, learned counsel has argued that the findings recorded by both the courts with regard to rate of rent is not based on any evidence and is conjectural. His second submission is that the principles of estoppel invoked against the landlord-petitioners are absolutely unjustified and there is no evidence to conclude that the landlord-petitioners have claimed excessive rent or that they have misconducted so as to suffer the legal consequences arising from the application of the principles of estoppel. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Ram Dass v. Sukhdev Kaur, 1981(1) R.L.R. 701.
10. Mr. Hemant Sarin, learned counsel for the tenant-respondents has argued that the concurrent findings of facts recorded by both the Courts below are not open to challenge because the findings are based on evidence and it cannot be said that a reasonable person while appreciating the evidence adduced would not record those findings. In support of his submission, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of Lachhman Das v. Santokh Singh, (1995-3)111 P.L.R. 276 (S.C.) and Kanchana v. P. Manian, J.T. 2002 Suppl(1) S.C. 36.
11. The learned counsel has also submitted that the principles of res-judicata envisaged by Section 14 of the Act would be applicable because in respect of the same period, the landlord-petitioners had earlier filed an application for ejectment and on the payment of Rent, the same was withdrawn by him voluntarily. He has also pointed out that once they had tendered the rent claimed, no second application was maintainable.
12. Mr. Sarin has then submitted that once the landlord-petitioners have been disbelieved with regard to rate of rent, they are not entitled to eject the tenant-respondents. In support of his submission, he has placed reliance on three judgments of this Court in the cases of Mehar Chand v. Tilak Raj Girdhar, A.I.R. 1982 Punjab and Haryana 144, Harnam Singh v. Mohinder Singh, (1997-2)116 P.L.R. 95 and Fakir Chand v. Bhagwan Dass, (1994-3)108 P.L.R. 129.
13. After hearing the learned counsel and examining their respective submissions, I have reached the conclusion that this petition deserves to be dismissed because both the Courts below have recorded a finding of fact that the landlord-petitioners were not entitled to claim rent for the period ejectment petition has already been filed because it would be hit by the principles of res judicata incorporated in Section 14 of the Act. It has further been concurrently found that the earlier ejectment petition was withdrawn by the landlord-petitioners voluntarily and the rate of rent was Rs. 450/- p.m. The Supreme Court in a catena of judgments has taken the view that the revisional jurisdiction of this Court under Sub-section (5) of Section 15 of the Act is limited.
14. The power of revision to interfere under Section 15(6) of the Act is limited to a case when the findings recorded by the Rent Controller or Appellate Authority are without any evidence. It has been repeatedly held that the revisional powers of the High Court under Section 15(6) of the Act would not include the power to reverse the concurrent findings of the Courts below without showing that those findings were erroneous or without evidence. The main object of the revisional power vested in the High Court is that it should satisfy itself as to the legality and propriety of the order under revision. Sub-section 6 of Section 15 of the Act is reproduced below for facility of reference: "15. Appellate and revisional authorities.- (1) to (5) xx xx xx (6) [The High Court] as revisional authority, may, at any time, on its own motion or on the application of any aggrieved party, made within a period of ninety days, call for and examine the record relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as, to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. In computing the period of ninety days the time taken to obtain a certified copy of the order shall be excluded."
15. Perusal of Sub-section (6) of Section 15 of the Act makes it evident that this Court is clothed with the power to call for record of any case and to examine it for the purpose of satisfying itself as to whether the order passed or proceedings taken under the Act are in accordance with its provision, lawful and proper. This provision as well as the identical provision of Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act) made under the Act have repeatedly came up for consideration before the Supreme Court. In the case of Vaneet Jain v. Jagjit Singh, 2000(5) S.C.C. 1, dealing with Sub-section 6 of Section 15 of the Act, their Lordships observed as under:
"Sub-section (6) of Section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999)6 S.C.C. 222 held, that the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Curt is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja v. United India Insurance Co. Ltd., (1998)8 S.C.C. 119 it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding court is wholly unreasonable. A perusal of Sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 115 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the Court below."
16. Similar view has been taken in the case of Shiv Lal v. Sat Parkash, 1993 (suppl)2 S.C.C, 345 and Bhoop Chand v. Kay Pee Cee investments, (1991)1 S.C.C. 343. Reference may also be made to Pooran Chand v. Moti Lal, A.I.R, 1964 S.C. 461, Helper Girdhar Bai v. Saiyed Mohamad Mirasaheb Kadri, A.I.R. 1987 S.C. 1782, Ram Dass v. Ishwar Chander, A.I.R. 1988 S.C. 1422 and Rajbir Kaur v. Chok-osiri and Co., A.I.R. 1988 S.C. 1845. Sub-section 6 of Section 15 of the Act also fell for consideration in the case of Lachhman Dass v. Santokh Singh, (1995-3)111 P.L.R. 276 (S.C.). Placing reliance on Hari Shankar v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 S.C. 698 : State of Kerala v. K.M., Charia Abdullah and Co., A.I.R. 1965 S.C. 1585 and Neta Ram v. Jiwan Lal, A.I.R, 1963 S.C. 499, their Lordships pointed out the distinction between the revisional power under the Rent Act and the appellate power which reads as under;
"From the use of the expression "Legality or propriety of such order or proceedings" occurring in Sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recoding a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference."
17. Similar view has been taken by the Supreme Court in the case of Kanchana 's case (supra). Dealing with the question of willful default in payment of rent by a tenant, their Lordships held that it is a question of fact, which should not ordinarily be disturbed while exercising powers of revision. The view of their Lordships read as under:-
"We must observe that where there has been a wilful default in payment of the rent by the respondent, is primarily a question of fact which should not ordinarily be disturbed by a revisional court unless the order suffers from non-consideration of important evidence, or misreading of the evidence or recording a conclusion which no reasonable man in the given facts could have arrived at. A perusal of the order of the High Court, under challenge, does not show that the order was interfered with on any of the aforementioned grounds...."
18. When the principles enunciated by the Supreme Court in various judgments extracted above are applied to the facts of the instant case, it is evident that both the Courts below have concurrently found the rate of rent to be Rs. 450/- p.m. and that the landlord-petitioners were estopped from filing the ejectment petition as it was in respect of the same period, However, it has been held that the rent for the period w.e.f. 13.10.1975 to 12.4.1978 was liable to be paid which was covered by the earlier ejectment petition. A sum of Rs. 1200/- with interest was paid by the tenant-respondents on 26.7.1978 and a sum of Rs. 1950/- with interest was again paid by tenant-respondent No. 2 when he was impleaded as a party. It is true that the landlord-petitioners have claimed rent at the rate of Rs. 500/- p.m. asserting that at the time of renting out the premises in dispute AW-2 and AW-5 were present. The rate of rent shown in the account books Ex.A9 produced by the tenant-respondents reveals to be Rs. 455/- p.m. No direct evidence has been placed on record for the exact rate of rent. There is neither any rent note nor any rent receipt. !t is in these circumstances that the Courts below have assessed the rent to be Rs. 450/- p.m. In view thereof, no interference is called for in the findings of fact recorded by both the Courts below on the issue of rate of rent and also on the issue of filing ejectment petition claiming the rent in respect of the period the landlord-petitioner had already filed the petition and had withdrawn the same. I am further of the view that in cases where there is no direct evidence about the rate of rent the Rent Controller and the Appellate Authority are not incompetent to rely on the evidence brought on record and then determine the rate of rent. Therefore, the revision petition is liable to be dismissed.
19. Even otherwise, the tenant-respondents could not be ejected on the ground of non payment of rent at the rate of Rs. 500/- p.m. because both the Courts below have recorded the conclusion that the rate of rent is Rs. 450/- p.m. The conduct of the landlord-petitioners in claiming the rent in respect of the period the rent was claimed in the earlier ejectment petition is not praise worthy. Similarly, his conduct of claiming rent at a higher rate than the one found by the Courts below also leaves much to be desired. Therefore, the principles enunciated in Mehar Chand's case (supra), Harnam Singh's case (supra) and Faqir Chand's case (supra) would apply and it has to be held that on the ground of conduct of the landlord-petitioners, the ejectment petition is liable to be dismissed.
20. The argument of the learned counsel for the landlord-petitioners that the principles of estoppel cannot be invoked against him is primarily based on a Division Bench judgment of this Court in the case of Ram Dass's case (supra). In Ram Dass 's case (supra) this Court has taken the view that the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 would not be applicable to the proceedings undertaken under the Act. However, it does not mean that the landlord-petitioners can keep on claiming rent in respect of the same period for which the rent was claimed in the earlier ejectment petition which was dismissed as withdrawn. There is no principle of law which would permit subjecting a tenant to the same cause of action twice by claiming the rent for the same period and getting the same paid. Therefore, the principles enunciated by the Division Bench that the provisions of Order XXIII Rule 1 would, not be attracted to the proceedings undertaken under the Act would not apply to the instant case.
Therefore, the argument is misconceived and the same is rejected.
21. For the reasons recorded above, this petition fails and the same, is dismissed.