Punjab-Haryana High Court
Mohan Lal Juneja & Anr vs Raj Kumar Goyal & Anr on 10 September, 2013
Author: Jaswant Singh
Bench: Jaswant Singh
CR No.3728 of 2011(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CR No.3728 of 2011(O&M)
Date of decision 10.09.2013
Mohan Lal Juneja & Anr.
...... Petitioners.
Versus
Raj Kumar Goyal & Anr.
..... Respondents.
AND
CR No.3729of 2011(O&M)
Date of decision 10.09.2013
Mohan Lal Juneja & Anr.
...... Petitioners.
Versus
Raj Kumar Goyal & Anr.
..... Respondents.
CORAM: HON'BLE MR.JUSTICE JASWANT SINGH
Present : Mr. A.K. Chopra, Senior Advocate assisted by
Mr. Gursher Singh, Advocate for
petitioner-tenant/judgment debtor.
Mr.Kanwaljit Singh, Sr. Advocate with
Mr.S.S.Sodhi, Advocate
for the respondent-landlord/decree holder.
****
JASWANT SINGH, J.
By this order I shall dispose of both the aforesaid Civil Mahajan Vinay 2013.11.11 15:30 I attest to the accuracy and integrity of this document at Chandigarh CR No.3728 of 2011(O&M) -2- Revisions i.e. CR Nos.3728 & 3729 of 2011 respectively as the same have arisen out of identical orders passed on similar grounds.
Petitioner(tenant)/judgment debtor has filed the aforesaid two civil revisions under Article 227 of the Constitution, assailing two identical orders dated 20.05.2011 (Annexure P-5) passed by the learned Executing Court, whereby his similar objections to the execution seeking the eviction of the tenant from the demised premises(half portion each of ground floor and basement of SCO No.12, Sector 11, Panchkula) in pursuance to the compromise decree dated 11.09.2004 (Annexure P-1) (Colly) have been dismissed.
Learned counsel for the petitioner-tenant/judgment debtor has argued that there was no mala fide violation of any term of the compromise/compromise decree and further that the default of two cheques on account of due period of August and September, 2005 would not be construed as cause of action for execution of the eviction decree in view of the fact that the rent for the said month has been deposited through treasury challans. He further submits that in pursuance to the various interim orders passed by this Court, rent due till August 2013 @ Rs.30,000/- per month stands paid and thus even if there was some inadvertent violation, the same would stand condoned.
It has been finally argued that there was no default of the rent for the demised premises for the two months, more so for April 2005 and August and September 2005. It is submitted that for April 2005, even in the execution petition it was not claimed by the decree holder regarding August, September 2005. There is no finding regarding default in terms of the Mahajan Vinay 2013.11.11 15:30 I attest to the accuracy and integrity of this document at Chandigarh CR No.3728 of 2011(O&M) -3- compromise. It is also argued that in view of Clause-6 envisaged there was a fresh tenancy w.e.f. January 2002, on clearance of arrears of rent for previous years and thus there was no fresh decree which required to be executed.
Learned counsel for the landlords on the other hand submits that besides the non payment of rent due for various periods through cheques, as stipulated in the compromise decree, the tenant had also violated other terms of clause 4 and 5 of the compromise dated 11.09.2004 (Annexure P-1) (Collectively), whereby he had defaulted in submitting 30 post dated cheques covering the period of two and half years from 11.09.2004. He further submits that the cheques issued for the rent due for the months of February 2005 and April 2005, were dishonoured and the tenant stands convicted for the same under the proceedings initiated under Section 138 of the Negotiable Instruments Act,1881. He further submits that even after the passing of impugned order dated 20.05.2012 by learned Executing Court, the tenant has repeatedly failed to pay the rent due in terms of the compromise deed. Although, he was permitted by this Court subsequently to pay arrears in lump sum.
Be that as it may, he submits that the tenant has repeatedly violated the terms and conditions of the compromise decree and therefore, no indulgence is required to be given to him by this Court.
It is further submitted that the landlord had inducted the tenant on 05.01.2001 in half portion of the ground floor of SCO 12, Sector 11, Panchkula vide separate lease deed dated 05.01.2001@ Rs.18,000/- per month as rent and thereafter vide another lease deed dated 05.01.2001 he Mahajan Vinay 2013.11.11 15:30 I attest to the accuracy and integrity of this document at Chandigarh CR No.3728 of 2011(O&M) -4- was further inducted in the half portion of the basement of the said SCO 12, Sector 11, Panchkula @ Rs.9,000/- per month.
That since the tenant was defaulting in payment of rent for both the premises, the landlord was constrained to file two separate suits for possession by ejectment. Since the building was newly constructed, the provisions of the rent act are not applicable.
Both the suits were sent to the Lok Adalat, wherein the comprehensive compromise dated 11.09.2004 between the parties was arrived at, creating a fresh composite tenancy for both the aforesaid portions of the SCO 12, Sector 5, Panchkula.
In view of the said compromise, both the eviction suits were disposed of in view of the compromise decree dated 11.09.2004. However, due to non compliance of terms and conditions of said compromise by petitioner(tenant), two executions were filed by the landlord for both the portions.
After hearing learned Counsel for the parties and perusing the record with their able assistance, this Court is of the considered view that the present petition is devoid of any merit and the same deserves to be dismissed.
It is apparent from the record that the petitioner(judgment debtor) had not submitted i.e. 30 post dated cheques covering a period of 2- 1/2 years from the date of compromise, which is a clear cut violation of the compromise entered amongst the parties and consequently, the arguments that have been raised by the learned Counsel for the petitioner(tenant) falls flat in view of Clause-5 of the compromise Ex.C-1 which reads as under:- Mahajan Vinay 2013.11.11 15:30 I attest to the accuracy and integrity of this document at Chandigarh CR No.3728 of 2011(O&M) -5-
" That if the past rent and future rent is not paid as agreed upon and there is default of past and future rent for two months, the decree for ejectment shall be executed against the second party (JD) and the premises shall be vacated immediately by the second party (JD)."
It is further apparent from the record that two cheques given by the JD for the month of April 2005 and February 2005 were also dishonoured and for those cheques, a complaint was filed by the decree holder under Section 138 of the Negotiable Instructions Act in which the judgment debtor was sentenced to undergo imprisonment for one year for the dishonour of the cheque for the month of February 2005. It is also not in dispute that as per Clause-5 if the JD did not adhere to the compromise, then the JD would be liable to vacate the premises immediately. In the present case, as has been observed earlier, the JD had failed to pay the amount for the month of February as well as April, as the cheques given by him were dishonoured. The JD had proved himself to be a dishonest tenant who did not want to adhere to the compromise. Furthermore, there were many other violations by the JD which violated Clause-1 of the compromise because demand drafts were given by the JD for a particular month on their last date rather than on the beginning of the said months. These facts also shows that the JD/tenant is out and out trying to arm twist the respondent (landlord) in one way or the other and has been defaulting at each and every stage. The payment of the amount/rent subsequently to the JD/tenant after passage of time will not exonerate the JD/tenant of his liability under the compromise, as the terms and conditions of the said compromise were very Mahajan Vinay 2013.11.11 15:30 I attest to the accuracy and integrity of this document at Chandigarh CR No.3728 of 2011(O&M) -6- strict in nature and had to be adhered properly as they formed part of a civil court decree. Although learned Counsel for the petitioner(tenant) has argued that after the compromise entered between the parties no decree was in existence, however, this Court is of the opinion that the perusal of the compromise would show that no fresh decree was required to be drawn and due to the default on the part of the judgment debtor/petitioner(tenant) the said decree had itself come into operation for being executed by the Executing Court. Furthermore, Counsel for the petitioner(tenant) has also argued that no action was sought by the respondent(landlord) for the month of August, September 2005, however, this Court is of the opinion that the Court has to decide on the basis of undisputed facts. It is not in dispute that rent for the month of August and September was not paid by the petitioner (tenant) in time and, therefore, the court can take judicial notice of the fact that there was again a violation of Clause-5 of said compromise entered between the parties and hence the order passed by the court below is correct and liable to be upheld.
In view of the above, finding no merit in the present revision petition, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE September 10, 2013 anju/Vinay Mahajan Vinay 2013.11.11 15:30 I attest to the accuracy and integrity of this document at Chandigarh