Punjab-Haryana High Court
Hukama Devi And Ors. vs Bhagwan Dass on 11 February, 2003
Equivalent citations: (2003)134PLR371
JUDGMENT M.M. Kumar, J.
1. This is a tenant-petition filed under Sub-section 5 of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity 'the Act'), Challenging judgment dated 7.6.2001 passed by the learned Appellate Authority, Sangrur, affirming the findings of facts recorded by the Rent Controller, San-grur. The Rent Controller concluded that there is a relationship of landlord and tenant between the parties and the tenant-petitioner did not pay arrears of rent with effect from 1.4.1993, therefore, he ordered the ejectment of the tenant-petitioner or any other person working in the shop on his behalf.
2. Brief facts of the case, which are necessary to decide the controversy raised are that the landlord-respondent filed an ejectment petition under Section 13 of the Act, alleging that Sukhdev Chand, deceased (now represented by his legal representatives for brevity to be referred as tenant-petitioner) had taken the shop on rent from him @ Rs. 90/- per year as per the rent note executed between the parties on 8.8.1968. Rent was paid till March 1993 and thereafter the tenant-petitioner stopped making the payment of rent. Arrears of rent was claimed with effect from 1.4.1993.
3. The tenant-petitioner stoutly denied the relationship of landlord and tenant between the parties and on that score refused to tender any rent in the Court. It was, however, admitted by the tenant-petitioner that he took the shop on rent for one year on 8.8.1968. He categorically asserted that he is not a tenant in the shop as he relinquished the possession of the shop since long, which is not in his possession. It is further alleged that the ejectment petition has been filed simply to harass him. The tenant-petitioner further alleged that after he relinquished the possession of the shop, it was given on rent by the landlord-respondent in 1971 to one Kesho Ram S/o Piara Ram, who is running his cloth business in the demised premises in the name and style of Mahavir Garments. It has further been alleged that initially the Kesho Ram used to pay rent to Kailash Chand, brother of landlord-respondent and later on he started paying rent to the landlord-respodnent himself. Therefore, the locus-standi of the landlord-respondent to file the ejectment petition has been challenged.
4. The landlord-respondent in his replication denied the fact that tenant-petitioner ever delivered the possession of the demised shop to him in the year 1971 and that the shop has been further rented to Kesho Ram. The landlord-respondent further asserted that the rent was being paid by the tenant-petitioner against receipt in his Bahi and no rent has ever been paid by Kesho Ram. On the basis of the pleadings of the parties, the following issues were framed:-
1) Whether respondent has delivered the possession of the shop in dispute to the applicant since long? OPP (onus objected to).
1A) Whether the petitioner rented out the shop in dispute to Kesho Ram after the respondent Sukhdev Chand relinquished the possession for the year 1971? OPR.
2) Whether applicant has no locus standi or cause of action to file this application? OPR (onus objected to).
3) Whether applicant is estopped from filing the present application by his acts and conducts? OPR (onus objected to).
4) Whether respondent is entitled to special costs? OPR.
5) Relief.
5. On issue No. 1, the Rent Controller concluded that there was no direct evidence led by the tenant-petitioner, which may lead to the conclusion that the tenant-petitioner ever delivered the possession to the landlord-respondent in the year 1971 and he inducted Kesho Ram who has been in possession of the demised premises as tenant under the landlord-respondent. Therefore, issue No. 1 was decided against the tenant-petitioner and in favour of the landlord-respondent. Similarly, the findings were recorded on issue No. 1-A that the demised shop was not let out by landlord-respondent to Kesho Ram as alleged yet tenant-petitioner himself continued in possession till his death. From the findings on issue No. 1 and 1-A it was inferred that the tenant-petitioner had made some arrangement with Kesho Ram while continuing in possession and impliedly joined Ke-sho Ram with him as partner but instead giving his name as partner of the firm he just used the name of his father Arjan Dass. Therefore, issue was decided in favour of the landlord-respondent and against the tenant-petitioner.
6. On issue No. 2 as to whether the landlord-respondent had the locus-standi to file the ejectment petition because there was no relationship of landlord and tenant between the parties as alleged by the tenant-petitioner failed to prove delivery of possession of the demised shop in the year 1971 to the landlord-respondent and the landlord-respondent again rented out the shop to one Kesho Ram. The Rent Controller also held that the tenant-petitioner continued in possession under some arrangement with Kesho Ram, who was known to him. Therefore, the tenant-petitioner continued in the shop as tenant under the landlord-respondent and as such he was in arrears of rent.
7. Issue No. 3 was again decided in favour of the landlord-respondent and it was held that there was no question of estoppel against him whereas issue No. 4 was not pressed by the tenant-petitioner.
8. In view of the findings recorded on issues No. 1, 1-A, 2 and 3, the tenant-petitioner was ordered to be ejected.
9. On appeal, the Appellate Authority, Sangrur, on the basis of its own analysis of the evidence on record affirmed the findings of the Rent Controller and concluded as under:-
"The tenant has taken contradictory pleas regarding the tenancy. At one time, he claims that the landlord was put into possession of the shop, secondly he claims that the shop was rented out to Kesho Ram, after he vacated the shop, thirdly he claims that the shop was rented out to M/s Arun Dass Kesho Ram. Because of close relationship between the parties that Sukhdev Chand is the son of Arjan Dass and Kesho Ram is his cousin the possession of the shop in dispute seems to have been handed over by Sukhdev Chand to Kesho Ram and the same has been proved by the landlord."
10. The afore-mentioned findings recorded by the Appellate Authority have been amply supported by the evidence on record and no useful purpose would be served by repeating the version of various witnesses in this judgment.
11. Mr. Avnish Mittal, learned counsel for the tenant-petitioner has argued that the tenant-petitioner is entitled to an opportunity for payment of arrears of rent because basically he has been ordered to be ejected from the demised premises on that ground. He relies upon a judgment of the Supreme Court in the case of Rakesh Wadhawan v. Jagdamba Industrial Corporation, (2002-2)131 P.L.R. 370 (S.C.), that since the Rent Controller has failed to pass any order under Section 13(2)(i) of the Act, therefore, according to the Supreme Court judgment, the rent should have been assessed by the Rent Controller and thereafter opportunity to pay the arrears of rent alongwith interest and cost should have been given to him. The learned counsel has requested that the petition should be remanded back to the Rent Controller as was done by the Supreme Court in Rakesh Wadhawan's case.
12. Mr. R.K.Chhibber, learned senior counsel appearing for the landlord-respondent has argued that the question of assessment would arise only in a case where the tenant has accepted the relationship of landlord with him. But in a case where the tenant like the tenant-petitioner takes the risk of denying that relationship and does not admit the relationship than it would mean that no opportunity of tendering rent by such a tenant would be required. According to the learned counsel, the stand of the tenant-petitioner is of a complete denial of relationship of landlord and tenant and when he has failed to produce any evidence showing that the vacant possession was delivered to the landlord-respondent in 1971, or that the shop was rented out by the landlord-respondent to Kesho Ram or that the shop was rented out to the firm M/s Arjan Dass Kesho Ram, he would not be entitled to claim opportunity to tender rent on the basis of the finding given he is a tenant. The learned counsel has submitted that having been believed in his stand before the Rent Controller as well as before the Appellate Authority, the tenant-petitioner is estopped from saying that he is in fact a tenant.
13. After hearing the learned counsel for the parties, I am of the considered view that this petition deserves to be dismissed. The Rent Controller would not be under an obligation to pass an interim order assessing the rent, interest and cost of application, in a case where the tenant has not only denied his relationship with the landlord but has further gone on to say that Kesho Ram was in fact the tenant inducted in 1971 after he handed over the vacant possession of the shop to the land lord-respondent or that the demised shop was rented to M/s Arjan Dass Kesho Ram. Section 13(2)(i) may be examined in order to find out as to whether such an intention could be gathered. Section 13(2)(i) reads as under:-
"Section 13. Eviction of tenants. XX XX XX (2) XX XX XX
(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that if the tenant on the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest at six percent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid."
14. A perusal of afore-mentioned provision shows that there is a presumption of relationship of landlord and tenant which is implicit in Section 13(2). Therefore, an unscrupulous tenant like the petitioner cannot first be permitted to take the stand that he is not the tenant under the landlord and then to claim that he is a tenant but he should be permitted to deposit the assessed arrears of rent. If such an interpretation is given to Section 13(2) than many tenants may take the stand that there is no relationships of landlord and tenant. In such a case a tenant would successfully delay the payment of rent. Therefore, there cannot be any obligation on the Rent Controller to make an assessment about the arrears of rent once such a stand has been taken by the tenant. The objection of making assessment of the arrears of rent, interest and cost by the landlord is that in case there is a dispute with regard to rate of rent or the period of rent, house tax, cost and interest etc. then he may not suffer because of short tender. But in a case where the tenant refuses the liability to pay the rent, the question of assessment would not at all arise. For the afore-mentioned proposition, reliance can be placed on the judgment of the Supreme Court in Sheela v. Firm Prahalad Rat Prem Prakash, (2000-2)131 P.L.R. 66 (S.C.). The Supreme Court considered the provisions of Section 111(g) of the Transfer of Property Act, 1882 read with Section 116 of the Evidence Act, 1872 for the purpose of finding out whether the right of a landlord could be adversely affected under Section 12 of the M.P. Accommodation Control Act, 1961. Holding that a disclaimer by the tenant would affect adversely and substantially the interest of the landlord, Their Lordships observed as under:-
12. XX XX XX In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in this application to other situations as well, retaining the basic feature of the rule. Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case of lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact situations which entail the lessee having renounced his character as such and they are; (i) when the lessee sets up a title in a third person or (ii) when he claims title in himself. In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot coexist with the title in the landlord.
13. The law as to tenancy being determined by forfeiture by denial of the lessor's title or disclaimer of the tenancy has been adopted in India from the law of England where it originated as a principle in consonance. On enactment of the Transfer of Property Act, 1882, the same was incorporated into Clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply. (See: Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor's title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognised and incorporated as a ground for eviction of tenant either expressly or impliedjy by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord."
15. The protection of rent laws has also been denied to a tenant who has denied relationship of landlord and tenant because such a tenant can never he considered to have claimed protection of the rent laws. This proposition has been laid down in the case of Sultan v. Ganesh, (1988)1 S.C.C. 664. Similar view appears to have been taken in the case of Sankaran Pillai v. V.P. Venuguduswami, (1999)6 S.C.C. 396.
16. The observations of the Supreme Court in para 30 of Rakesh Wadhawan's case (supra) also apply to a tenant and landlord and not to a stranger and a landlord. Their Lordships of the Supreme Court in para 30 have observed as under:-"30. To sum up, our conclusions are :
"1. In Section 13(2)(i) proviso, the words 'assessed by the Controller' qualify not merely the words 'the cost of application' but the entire preceding part of the sentence i.e. 'the appears of rent and interest at six percent per annum on such arrears together with the cost of application.'
2. The proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 casts an obligation on the Controller to make an assessment of (i) arrears of rent, (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the 'first date of hearing' after the passing of such order of 'assessment' by the Controller so as to satisfy the requirement of the proviso,
3. Of necessity, 'the date of first hearing of the application' would mean the date falling after the date of such order by the Controller.
4. On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the Controller.
5. If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct a refund. If, on the other hand, the amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order directing the tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction.
6. While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings."
17. It is thus obvious that the above mentioned observations, would not apply to be a case where the status of a party has not been accepted as a landlord by the other party who denied his status to be the tenant.
18. I am further of the view that the principles of estoppel would also apply to the tenant-petitioner. After the tenant-petitioner has taken the stand that he is not a tenant and the findings recorded by both the Courts below have gone against him then the consequences must follow namely that he is a tenant but in order to avoid payment of rent, he has set up a false plea of denying the relationship of landlord and tenant. Therefore, the instant petition is liable to be dismissed.
19. For the reasons stated above, this petition fails and the same is dismissed.