Punjab-Haryana High Court
Satpal Singh vs Balwant Kaur Grewal on 16 February, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.246 of 2012 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.246 of 2012 (O&M)
Date of decision: 16.2.2012
Satpal Singh ....Appellant
Vs.
Balwant Kaur Grewal ....Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Ms. H.K.Dhillon, Advocate for the appellant.
Mr. Rahul Rampal, Advocate for Caveator-
respondent.
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G. S. SANDHAWALIA, J.
Civil Misc. No.662-C of 2012 Prayer made in the application is for grant of exemption from filing the certified copy of judgment and decree dated 9.4.2011 passed by Civil Judge (Jr. Division), Ludhiana and the grounds of appeal.
In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed. R.S.A.No.246 of 2012
1. The present appeal has been filed by the defendant, who is aggrieved against the concurrent findings of the Courts below whereby the suit for ejectment filed from shop No.13 situated in Anmol Market, Village Dad, Tehsil and District Ludhiana has been allowed exparte by the Civil Judge (Jr. Division), Ludhiana on 9.4.2011 as the defendant failed to file written statement and defence of the defendant was struck off under Order 15 Rule 5 C.P.C. and the plaintiff has also been held entitled to recovery of RSA No.246 of 2012 -2- **** rent from 1.3.2007 to 31.1.2010 at the rate of Rs.2000/- per month amounting to Rs.70,000/- alongwith interest at the rate of 9% per annum.
2. The said order has been upheld in appeal by the Addl. District Judge, Ludhiana vide judgment and decree dated 30.11.2011.
3. The case of the plaintiff filed on 3.2.2010 was that the shop was let out at a monthly rent of Rs.2000/- by the husband of the plaintiff and she became owner of the shop on the death of her husband as his property was succeeded by her. The husband and wife were settled in Norway and plaintiff is an NRI and she needed the shop to establish the business by her children. It was alleged that defendant was in arrears of rent and failed to pay the rent since November, 2005 and inspite of the notice no rent had been paid and under Order 15 Rule 5 C.P.C. the tenant was bound to pay the rent on the first date of hearing. The property being situated in village Dad was out of the limits of the Municipal Committee, Ludhiana and therefore, the Civil Court had jurisdiction. It was further alleged that defendant had failed to vacate the shop inspite of notice being served in October, 2009. The rent had been demanded from 1.3.2007 on account of limitation and defendant instead of vacating the property had filed a false suit for permanent injunction. It was contended that the plaintiff had served notice upon the defendant on 15.1.2010 to hand over the possession under Section 106 of the Transfer of Property Act, 1882 and even earlier notice had been served by the husband of the plaintiff upon the defendant on 13.11.2005, but the defendant refused to vacate the property. On service of summons, the defendant had filed an application under Order 7 Rule C.P.C. on 23.5.2010 for rejection of the plaint on account of deficiency in Court fee since the Court fee on the ground that had been paid on amount of Rs.1,44,000/- and the relief of possession RSA No.246 of 2012 -3- **** being involved, the value of the property was Rs.50 lacs. Thereafter, written statement was filed along with reply to the application under Order 15 Rule 5 C.P.C. and the case was adjourned for 22.7.2010. Subsequently, vide order dated 20.12.2010 the application under Order 7 Rule 11 C.P.C. for rejection of plaint was dismissed and the case was listed for 21.1.2011 for consideration on the application under Order 15 Rule 5 C.P.C. filed by the plaintiff. Thereafter on 12.2.2011 on the basis of the reply and since the appellant had taken the plea that the rate of rent was Rs.1,000/- per month and he paid the same upto 10.4.2009, the trial Court came to the conclusion that the defendant was in arrears of rent since 10.4.2009 onwards and was duty bound to tender the rent from the said date on the first date of hearing as per order 15 Rule 5 C.P.C. but inspite of the fact that suit had been instituted on 3.2.2010, it had not been done. Accordingly, the trial Court assessed the rent at Rs.2000/- per month and in view of the fact that tenancy right of the defendant had been terminated, directed the defendants to tender the rent on 15.3.2011 at Rs.2000/- per month along with interest @ 9% per annum while disposing of the application under Order 15 Rule 5 C.P.C. vide order dated 12.2.2011. It is pertinent to mention that the trial Court also noticed that the counsel for the defendant was not coming present and his junior was requesting for adjournment. The said application was pending since long and therefore, pressed by the plaintiff and was being disposed of accordingly. Thereafter on 15.3.2011 due to the failure of the defendant- tenant to pay the rent, the trial Court struck off the defence of the defendant and fixed the case on 4.4.2011 for evidence of the plaintiff. On the said day the plaintiff examined herself and another witness and submitted their affidavits and closed her evidence and the case was listed for 9.4.2011, on RSA No.246 of 2012 -4- **** which date it was allowed in the presence of the counsel for the defendant but since his defence was struck off, it was decreed exparte and apart from the direction of ejectment of the defendant from the shop in question, the defendant was also held liable to pay rent from 1.3.2007 to 31.1.2010 at the rate of Rs.2000/- per month amounting to Rs.70,000/- along with interest at the rate of 9% per annum. As noticed above, the said order has been upheld in appeal by the Addl. District Judge vide order dated 30.11.2011.
4. Counsel for the appellant has contended that the observations of the trial Court that the defendant has failed to file written statement is incorrect since written statement had been filed and even if the defence had been struck off, the arguments of the counsel had to be taken into consideration. It was also contended that the Civil Revision No.2286 of 2011 had been filed before this Court, wherein this Court had directed that the order dated 12.2.2011 shall be complied with and the entire arrears of rent along with the rent which became due thereafter i.e. up to date rent within a week had to be deposited and the trial Court was directed to adjourn the case beyond the date fixed before this Court. The order reads as under:-
"Contends that petitioner-defendant is ready to deposit the entire arrears of rent, as per order of learned trial Court, Annexure P9, even today. It is further contended that counsel for the petitioner-defendant did not appear before the Court when impugned order was passed and rather a proxy counsel appeared, who did not inform the counsel about the order and hence, he could not convey the same to the petitioner. It is further submitted that on the very next date, i.e. 16.3.2011, RSA No.246 of 2012 -5- **** when the impugned order was passed, a prayer was made on behalf of the petitioner-defendant for granting time to deposit the entire arrears of rent by moving an application, Annexure P10 and, however, the same was declined by learned trial Court. She has also placed reliance upon M/s Mangat Singh Trilochan Singh and others Vs. Satpal, 2004(1) Civil Court Cases 141 (S.C.).
Notice of motion for 17.5.2011.
However, in the meantime, petitioner is directed to comply with order passed by learned trial Court dated 12.2.2011 and deposit the entire arrears of rent along with the rent which became due thereafter i.e. up to date rent, within a week. Learned trial Court is also directed to adjourn the case beyond the date fixed before this Court.
4.4.2011 Sd/ Ram Chand Gupta, Judge"
5. It was further contended that the certified copy of the said order could not be obtained till 8.4.2011 and was furnished on 9.4.2011 before the trial Court who informed the defendant that evidence had been closed and the judgment had already been pronounced and therefore, there is contravention of the orders of this Court. It was further contended that the Lower Appellate Court has also not taken these facts into consideration. Accordingly, it was argued that since rent had already been deposited in pursuance of the stay application moved before the Lower Appellate Court, and in view of the orders passed by the Lower Appellate Court on 31.5.2011, the order should be set aside and the defendant should be given a chance to contest the case on merits. It was also contended that it was not mandatory upon the trial Court to strike off the RSA No.246 of 2012 -6- **** defence and it was within its discretion, and reliance was placed upon M/s Mangat Singh Trilochan Singh Thr. Managat Singh (D) thr. Lrs. and others and others Vs. Satpal, 2004(2) RCR (Civil) 1. The contentions of the counsel though attractive, cannot be accepted on various counts. The sequence of events has already been narrated to show that how the tenant was bent upon to harass the NRI landlady. Similar Appeal pertaining to the adjacent shops bearing No.11 and 12, bearing Regular Second Appeal No.80 of 2012 - Jagdev Singh Vs. Balwant Kaur Grewal, which were based on similar set of circumstances, has already been dismissed by this Court on 12.1.2012 and it has been held that provisions of Order 15 Rule 5 C.P.C. is mandatory keeping in view of the judgment of this Court in Gurjit Singh Gill vs. Major Paramjit Singh Gothra 2004 (3) PLR 474. The sequence of events as narrated above go to show that initially when the suit was filed on 3.2.2010, an application for rejection of plaint was filed, which was dismissed. Thereafter, after a year, the trial Court assessed the rent on 12.2.2011 and the counsel for the defendant was not willing to argue the matter. It is pertinent to mention that the said counsel is the same as the one in which neighbouring tenant was involved and even in that case also, the counsel was not coming forth to address arguments on the assessment of rent. The rent was not paid on 15.3.2011 and a plea was taken before this Court that a proxy counsel had appeared and he was unaware that the order had been passed and prayer was made to deposit the entire arrears by moving an application and the same was declined. However, a perusal of the order dated 15.3.2011 goes on to show that no such prayer was made and the order is reproduced below:-
"Pr: Counsel for the parties.RSA No.246 of 2012 -7-
**** As per order dated 12.2.2011, court has assessed the rent and as per provisions of order 15 Rule 5 of C.P.C., the defendant was bound to tender the rent but the defendant has failed to tender the rent and failed to comply with the order of the court and learned counsel for the defendant filed application for granting opportunity to the defendant for deposit the rent. After hearing learned counsel for both the parties and going through the provisions of order 15 Rule 5 C.P.C., this Court finds that the provisions of Order 15 Rule 5 C.P.C. is mandatory provisions. Accordingly as the defendant has failed to tender the rent as assessed by this court on the last date of hearing, so court has left with no other alternative except to striking the defence of the defendant and accordingly as the defendant has failed to tender the rent, so defence of the defendant is struck. Now to come up on 4.4.2011 for evidence of the plaintiff."
6. That even when this Court passed an order that due amount be deposited along with arrears upto date rent within a week, no effort was made to deposit the rent before the trial Court neither any affidavit was filed before the trial Court to show that such an order was passed by this Court. It is case of the appellant himself that the said order was not available till 8.4.2011 and there is nothing on record to show that even on 9.4.2011 the said order was was furnished before the trial Court. All these factors are indicative of the conduct of the tenant who did not want to furnish rent. It is also pertinent to mention that when the appeal was filed before the District Judge on 5.5.2011, an application dated 26.4.2011 for deposit of the amount was filed along with appeal for complying with the orders passed RSA No.246 of 2012 -8- **** by this Court but even then the amount was not deposited and only subsequently an application was filed for taking the appeal up for hearing. Counsel for the caveator contends that this was done only because execution petition had been filed and tenant was apprehending the eviction. It is also pointed out that in paras 2 to 4 of the application dated 16.5.2011 for early hearing, the following averments have been made:-
"2. That in this appeal, an application has also been filed for staying the operation of the decree of the learned lower Court. Now, the applicant-appellant came to know that the decree holder has filed the execution of the decree in question in the Lower Court which is now fixed for 14.5.2011.
3. That on 14.5.2011, the applicant-appellant filed the objections to the execution petition but inspite of taking the reply to those objections, the Hon'ble Court of Shri Jarnail Singh, Civil Judge (Junior Division), Ludhiana issued the warrants of possession against the applicant-appellant. The above said step has been taken by the Presiding Officer of the learned Lower Court for the reasons best known to him.
4. That the warrants of possession for delivery of possession of the property in question have been issued by the learned lower court and if the warrants of possession have been executed, then the applicant-appellant will have to suffer an irreparable loss and injury which cannot be compensated in terms of money or any other way."
7. Accordingly, vide order dated 31.5.2011, the learned District Judge, Ludhiana passed the following order and directed the appellants to deposit a sum of Rs.88,000/- by 15th of next month and in future Rs.2000/- RSA No.246 of 2012 -9-
**** to be payable by 15th of every month. It was also directed that the rent from February, onwards till 31.5.2011 would also be paid without interest failing which the order would stand vacated. The said order reads as under:-
"File taken up today as I was on leave on 30.5.2011. An application has been moved for staying execution of impugned judgment and decree, on the ground that prima-facie case and balance of convenience are in favour of the appellant, who shall suffer an irreparable loss and injury by refusal of stay on execution of impugned judgment and decree.
2. This application has been opposed, but after careful consideration, the court is of the considered view that disposal of appeal is likely to take some time and the very purpose of appeal shall be disconcerted if the stay of execution of the impugned decree is not granted and accordingly, the application is accepted and the operation of impugned judgment and decree is ordered to be stayed till disposal of the appeal, subject to deposit of amount of Rs.88,000/- by the appellant with the respondent by 15th of next month and on payment of future rent @ Rs. 2000/- payable on 15th of every month; rent of months of February onwards till 31.5.2011 be also paid without interest uptil 15th of next month, failing which this order shall stand vacated. Appellant shall also continue deposit future rent at the rate Rs.2000/- by the 15th of each month. Put up on 29.7.2011 date already fixed."
8. The payment of rent was made thereafter. All these factors go on to show that the appellant has been a consistent defaulter and from their conduct it is clear that he had been playing the game of hide and seek RSA No.246 of 2012 -10- **** with the landlady. The Lower Appellate Court has also noticed that there is nothing on record to show that any affidavit was filed before the trial Court to show that this Court had passed an order which had to be complied with which goes on to show that the tenant was avoiding to deposit the amount as directed. The provisions of Order 15 Rule 5 C.P.C. as amended by the State of Punjab have been held to be mandatory in the connected matter bearing Regular Second Appeal No.80 of 2012 - Jagdev Singh Vs. Balwant Kaur Grewal vide judgment dated 12.1.2012 between the same landlady and another tenant in similar circumstances while placing reliance upon Gurjit Singh Gill's case (supra). The judgment relied upon by the counsel in M/s Mangat Singh's case (supra) for the appellant does not come to the aid of the appellant since in the said case it was a converse proposition where the trial Court had rejected the prayer for striking off the defence and the High Court had allowed the application. The Hon'ble Supreme Court in such circumstances said that the trial Court had discretion since the landlady in that case had also filed another application for payment of rent. Thus the High Court was held not justified in striking off the defence since the rent was not withheld for an ulterior purpose and in such circumstances, it was held that it was the discretion of the trial Court. In the present case, as noticed above the appellant had left no stone unturned and tried to delay the deposit and only when the execution petition had been filed and he was forced to protect himself from ejectment, he filed the application for stay and for depositing the rent before the Lower Appellate Court. In such circumstances, the discretion which has been exercised by the trial Court was correct as it had been left with no option but to strike off the defence. No fault can be found with the action of the Courts below as the trial Court was forced to strike off RSA No.246 of 2012 -11- **** the defence due to malafide conduct of the tenant. The deposit of rent made by the appellant is any way for occupation of premises as it is the case of the appellant himself that he has not paid rent from April, 2009 onwards and thus, the amount was due alongwith interest and therefore, the deposit of Rs.88,000/- would be for the occupation of the shop in question for the last three years.
9. Accordingly, since no substantial question of law arises for consideration from the facts and circumstances of the case, the present appeal is dismissed.
(G.S.SANDHAWALIA) JUDGE 16.2.2012 Pka