Punjab-Haryana High Court
Smt. Veena Gupta vs Harcharan Narang on 29 November, 1995
Equivalent citations: (1996)113PLR691
JUDGMENT N.K. Kapoor, J.
1. This is a defendant's regular second appeal against the judgment and decree of the Additional District Judge decreeing the suit of the plaintiff thereby restraining the defendants from dispossessing him on the basis of ejectment order dated 8.10.1985.
2. Plaintiff filed a suit for declaration to the effect that the previous including the impugned ejectment order dated 8.10.1985 passed by Rent Controller has become infructuous and a new tenancy has come into existence in respect of the premises in dispute between the plaintiff and defendant No.l and so prayed for injunction restraining the defendants from executing the ejectment order dated 8-10-1985. As per averments in the plaint it was stated that plaintiff is the-proprietor of M/s Narang Heat Treatment Centre and is running his business of heat treatment in the rented premises. This premises was taken on rent from Smt. Shanti Devi vide lease deed dated 18.4.1979. Smt Shanti Devi has died and the property has been bequeathed in favour of Smt. Veena Gupta on the basis of a Will dated 12.12.1979 and so she is the sole owner of the premises in dispute. It has been further stated that an order of eviction was raised against the plaintiff on an ejectment application Under Section 13 of the Haryana Urban Control of Rent and Eviction Act on the ground of non payment of rent and that appeal against the order of Rent Controller is pending before the appellate authority. It is during the pendency of the appeal that matter has been compromised and by mutual consent the monthly rent has now been increased from Rs. 750/- to Rs.-1,000/ w.e f. 18.12.1985. On account of the fresh agreement arrears of rent at the increased rate of rent has already been paid to the defendants by two Bank drafts which have been encashed and so these ejectment orders and the appeal pending have become infructuous.
3. Defendants were proceeded ex-parte. The trial Court after considering the ex-parte evidence came to the conclusion that Section 47 bars the institution of such a suit. Otherwise also the trial Court came to the conclusion that the matter of compromise can also be agitated before the appellate authority and so held that the suit of the, plaintiff cannot be decreed as prayed for. The Court accordingly ordered that the plaintiff shall not be dispossessed except in due course of law.
4. Feeling dissatisfied with the limited relief granted by the trial Court plaintiff filed an appeal. This time defendants put in appearance with a view to place relevant documents i.e the order of the appellate authority as well as the order passed in revision petition by this Court filed an application under order 41 Rule 27 CPC to adduce in evidence these documents by way of additional evidence. This prayer was declined by the Additional District judge vide order dated 13.1.1988. The Additional District judge found substance in the plea of the plaintiff that a fresh tenancy has been created which renders the earlier order of eviction as redundant. Court accordingly passed a restrain order preventing the defendants from dispossessing plaintiff in execution of ejectment order dated 8.10.1985.
5. Challenging the judgment and decree of the Lower Appellate Court the learned counsel for the appellant has argued that judgment and decree is not only illegal and invalid but infact no such suit could be filed by the plaintiff. According to the counsel the plaintiff is clearly guilty of holding the material information from the Court but for which the suit of the plaintiff could not be decreed. Elaborating the counsel argued that admittedly an order of eviction- was passed against the plaintiff on the ground of non-payment of rent as well as for causing material impairment to the building by Rent Controller vide order dated 8.10.1985 which order was affirmed by the appellate authority on 11.9.1986. Not only this, a further revision against the order of the appellate authority was dismissed by this Court on 26.11.1986. In view of the affirmation of the order of the Rent Controller by the appellate authority and the dismissal of the revision petition by this Court plaintiff in fact could not maintain any such suit and so the Courts below have erred in entertaining and the appellate Court in decreeing as well. The present suit was also not maintainable in view of bar of Section 47 CPC and Section 41(h) of the Specific Relief Act and so the judgment deserves to be set aside thus, dismissing the suit of the plaintiff.
6. Learned counsel for the respondent on the other hand argued that on the basis of evidence it is proved on record that a fresh tenancy came into existence as mutually agreed whereby rate of rent was increased and so the earlier order of eviction in fact become infructuous and hence unexecutable. The Court below on the basis of evidence has come to the conclusion that the excess rent as mutually determined has in fact been paid by the plaintiff to the defendant thus, creating a fresh tenancy. This way, the Additional District judge rightly decreed the suit of the plaintiff as prayed for support for the aforesaid view has been sought from the following decisions :-
(1) Besheshar Nath v. Smt. S. Bikram, (1981)83 PLR 30;
(2) Waryam Singh v. Sham Dass, 1985 H.R.R. 32 : 1984(2) R..L.R. 567 and (3) Shri 108 Punjab Adwait Punch Remashwar Panchayati Akhare Naya Udasin, Sri Guru Gangat Sahib Ji Udasin Nirban Nankhal. U. P. through its President v. Girdhari Lal and Ors., (1985-1)87 P.L.R. 634.
7. I have heard the learned counsel for the parties, perused the judgment of the trial Court as, well as of the lower appellate Court as well as the judgments relied upon and statutory provisions referred in support of their respective contentions. Facts leading to the filing of the present suit have been briefly noticed. Admittedly, an order of eviction was passed against the respondent the plaintiff by the Rent Controller vide order dated 8.10.1985. Plaintiff was ordered to be evicted on the ground of non-payment of rent as well as impairing the value and utility of the premises in dispute. An appeal was filed by him against the order of the Rent Controller. The matter was again examined by the appellate authority but finding no substance in any of the contentions dismissed the same vide order dated 11.9.1986. Respondent yet felt dissatisfied filed revision petition No. 2056 of 1986, which was dismissed by this Court in limine on 26.11.1986. The present suit admittedly has been filed during the pendency of the appeal filed against the order of the Rent Controller on 26.5.1986. In fact the precise plea i.e. plea of novation of contract was in fact set up before the appellate authority but not accepted. In any case, the respondent could not in law initiate or avail of two separate remedies for an identical relief. Plea of advantage of contract was set up before the appellate authority but not accepted and so was the decision of this Court. It is not the case of the plaintiff that decision rendered by the authorities under the Rent Act lacked jurisdiction or these have acted illegal. The matter having been finally concluded between the parties could in fact not be assailable in view of bar of Section 47 CPC. Section 47 specifically bars the institution of a suit with regard to all matters between the parties relating to the execution, discharge or satisfaction of the decree. The claim set up by the plaintiff that there has been a novation of contract at best could be agitated before the executing Court. However, in the instant case this relief too has become unavailable to the respondent-plaintiff on the ground that the precise objection has been considered by the appellate authority as well as by this court in the revision. The judgment cited by the counsel for the respondent in fact have no applicability on the point in dispute. In Besheshar Nath's case (supra) a suit was filed by a daughter who happens to inherit the tenancy right of her deceased father and so sought a restrain order against the landlord not to evict her on the basis of an eviction order passed against some other as she has not been impleaded as a heir. Possibly there cannot be any legal objection to grant of injunction by the Court in such like cases. Thus, this judgment has no applicability.
8. In Waryam Singh's case (supra) Court found as a fact that there was a compromise between the landlord and the tenant and so a fresh tenancy came into existence. It is in these circumstances it was held that the ejectment decree is not executable in view-of fresh tenancy. In the instant case appellate authority declined to accept the plea of novation of contract (there being no written agreement) and so this judgment also does not advance the case of the respondent in any manner.
9. Similarly, in Shri 108 Pujyapad Await Punch Parmeshwar Panchavati Akhare Naya Udasin Shri Guru Sanat Sahib Ji Udasin Nirban Nankhal's case (supra) the court came to the conclusion that in view of the fresh agreement between the parties a new tenancy came into existence and hence held that the ejectment proceedings had become infructuous.
10. In the present case the plea of novation of contract was for the first time set up during the pendency of the appeal before the appellate authority. Vide application dated 28.5.1986 it was stated that there has been verbal agreement between the parties creating a fresh tenancy thereby increasing the rate of rent from Rs. 750/- to Rs. 1,000/- and the alleged verbal agreement was stated to be dated 14.2.1986 The appellate authority rejected this story of a verbal agreement and finally decided the appeal dismissing the same vide order dated 11.9.1986. This order of the appellate authority has been affirmed by the -revisional Court on 26.11.1986. The decision having become final could not be permitted to be reagitated in the Civil Court as well as on account of bar of Section 47C and Section 41(h) of the Specific Relief Act. Accordingly, I accept the appeal, set aside the order of the Additional District Judge and dismiss the suit of the plaintiff. No order as to-costs.