Punjab-Haryana High Court
Jagdish Kumar vs Rupinder Kumar & Ors on 17 July, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CR No.1386 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.1386 of 2012 (O&M)
Date of decision: 17.07.2013
Jagdish Kumar ......Petitioner(s)
Versus
Rupinder Kumar & ors. ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Amit Rawal, Sr. Advocate with Mr. Divanshu Jain, Advocate
for the appellant(s).
Mr. Gaurav Chopra, Advocate for the respondents.
Rakesh Kumar Garg, J.
The brief facts necessary for the disposal of this revision petition are as under:
The respondent-landlord filed rent application No.45 of 9.11.2003 for ejectment of the petitioner and deliver possession of the demised premises i.e. one room shown red in the site plan comprising property bearing No.B-XIII-1530, on the ground of non-payment of rent and house tax since 1.4.1992 at the rate of Rs.325/- per month.
It is the further case of the petitioner-tenant that in the aforesaid eviction application, the petitioner was proceeded against ex parte and an ex parte judgment and decree of eviction dated 23.8.2004 was passed against him. The respondent filed execution application dated 25.11.2004. The petitioner on coming to know about the ex parte judgment and decree, moved an application for setting aside the same. The said application was allowed vide order dated 15.9.2006 on a concession made by the counsel for the respondent-landlord and the matter was adjourned to 11.10.2006. The aforesaid orders read as under: Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 2
"Present: Counsel for the parties Today the case was fixed for evidence of the applicant but ld. Counsel for the respondent has made statement having no objection if the ex parte ejectment order is set aside subject to heavy costs. In view of his above statement recorded separately, the exparte order is set aside subject to Rs.1,000/-. Now written statement be filed on 11.10.06.
Sd/- Charanjeet Arora CJJD, 15.9.06.
Present: DH with counsel.
Counsel for JD.
Costs not paid. Counsel for the JD made a
request for short adjournment on the ground that JD is suffering from illness and is unable to attend the court. Request is allowed. For filing the w/s and payment of costs, to come upon 5.11.2006.
Sd/- Charanjeet Arora CJJD, 11.10.06."
According to the petitioner, 5.11.2006 being Sunday, the matter was taken up on 6.11.2006. On that date, none appeared on behalf of the petitioner-tenant and the trial Court recalled its order dated 15.9.2006 by passing the following order:
"Present: Counsel for the D.H. None for the respondent.
...
File taken up today on 5.11.2006 happened Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 3 to be Sunday. Today none has come present on behalf of the respondent either to pay the costs or to file the written statement. On 15.9.06, on the basis of statement made by the decree holder with his counsel, the ex parte eviction order was ordered to be set aside subject to payment of costs of Rs.1000/- and the case was posted to 11.10.2006. However, on 11.10.2006 i.e. the adjourned date, neither written statement was filed nor costs paid and again today no body has come present on behalf of the respondent to pay the costs or to file the written statement. As the ex parte eviction order was set aside subject to payment of costs as above said, it is clear that payment of costs as imposed vide order dated 15.9.2006 was a condition precedent for setting aside of the ex parte ejectment order. However, since the amount of costs so imposed has not been paid and the condition imposed duly complied with, the said order dated 15.9.2006 ceased to operate. Still further, from the conduct of the respondent, it is clear that the application filed by him under Order 9 Rule 13 CPC was nothing but an act aimed at abusing the process of law and an attempt to thwart the execution of eviction orders and to gain as much time as he could, but his attempt having been aborted mid- Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 4 way owing to statement of the DH with counsel thereby expressing no objection to setting aside of ex parte eviction orders, obviously with the motive to realize the rent due from the respondent, the respondent has again become absent without caring for the fact that setting aside of ex parte eviction order was subject to fulfillment of the condition regarding payment of costs by him. Thus, now again after proceeding the respondent and deciding the case afresh would, in my considered view, amount to falling into the trap laid by the respondent as from his act and conduct, his sole aim appears to be to gain maximum time and to retain possession of the tenanted premises without any payment. Consequently, owing to non-payment of costs which was a condition precedent for setting aside of ex parte order, the order dated 15.9.2006 looses its effect and it ceases to be operative for any purpose and the ex parte order of eviction gets revival and none having come forwarded to represent the respondent in the case, his application under Order 9 Rule 13 CPC stands dismissed. File be consigned to the record room. The file of the main case lying tagged with the application, be also returned to the Record Room separately."
Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 5
The petitioner-tenant moved an application on 14.11.2006 for setting aside the aforesaid order dated 6.11.2006 and also for restoration of the order dated 15.9.2006.
The prayer of the petitioner for setting aside the order dated 6.11.2006 has been rejected by the Rent Controller vide impugned order. The aforesaid order has been challenged by the petitioner-tenant in this revision petition on the following grounds:
"Whether the Rent Controller has failed to refer to the fact that 5.11.2006 being Sunday, the Court ought to have issued fresh summons for fresh dates and should not have struck out the defence for non-appearance and moreover, the client should not suffer on account of lapse on the part of his counsel.
Counsel for the petitioner has further argued that the order dated 15.9.2006 was subject to payment of costs and the costs as per the aforesaid order, could not be paid on the adjourned date due to wrong date noted and moreover, ejectment petition pertains to the arrears of rent w.e.f 1.4.1992 whereas the rent already stood paid till 30.9.1996 as pleaded by the respondent-landlord himself and thereafter, also continued to pay upto March, 2009 and after that w.e.f. April 2009, rent could not be deposited because of the death of the original landlord.
Learned counsel has further argued that the Rent Controller has failed to exercise his jurisdiction by not recalling the order dated 6.11.2006 and restoring the order dated 15.9.2006. It has been further argued that there was no delay on the part of the petitioner-tenant in moving the application for setting aside the order dated 6.11.2006 and thus, the impugned order was liable to be set aside. Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 6
Counsel for the petitioner has also relied upon a judgment of this Court titled as Balkar Singh versus Gurmit Singh 2001(4) RCR (Civil) 390 to argue that the defence of a party could not be struck down on the next day of the adjourned date which happened to be a holiday. He has relied upon a judgment of the Hon'ble Supreme Court in the case of Mahesh Yadav & anr. Versus Rajeshwar Singh & ors. 2009(1) RCR (Civil) 422 to contend that even if the prayer of the petitioner amounted to review of the order, the same was competent in view of the aforesaid judgment.
On the other hand, learned counsel appearing on behalf of the respondent-landlord has vehemently argued that from the facts of the case, as noticed in the impugned order and brought on record of this petition, it is clearly established that the relief claimed by the petitioner- tenant cannot be granted as he has not approached this Court with his clean hands and has tried to mislead this Court by relying upon wrong facts and moreover, the veracity of the documents relied upon by him to state that rent stood paid upto 28.3.2009 has been found to be false as admittedly, no rent receipt was issued by Ram Kishore Bhardwaj for payment of rent upto 28.3.2009. The petitioner, in his affidavit, has clearly admitted this fact and has stated that the rent was paid upto 28.3.2007.
At this stage, the following orders passed by this Court on 6.3.2012, 22.5.2012, 2.8.2012, 4.12.2012 and 24.1.2013 be noticed:
06.03.2012 "Challenge is to the order dated 23.1.2012 wherein the Rent Controller refused to recall its order dated 23.8.2004 and restore the order dated 15.9.2006. It is contended that Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 7 an ex-parte ejectment order was passed on 23.8.2004 which was set aside on 15.9.2006 subject to payment of costs of Rs. 1000/-. The costs could not be paid due to wrong date noted. Accordingly, Rent Controller revived the order of ejectment on 6.11.2006. Immediately the petitioner filed the MA 47 on 27.11.2006 for the relief but the same has been dismissed after a period of six years i.e. on 23.1.2012 which is the impugned order.
Counsel for the petitioner contends that the ground which has prevailed with the Rent Controller is that the application is being filed to delay the case and not pay the rent. It is contended that the ejectment petition pertains to arrears of rent from 1.4.1992 and in an earlier petition filed under Section 13 of the East Punjab Urban Rent Restriction Act (for short 'the Act') dated 4.10.1996 (Annexure P-6), the landlord had himself averred that the rent had already been paid till 30.9.1996.
Reliance has also been placed upon receipts (Annexure P-4) to contend that rent has been paid thereafter also and has been paid till March, 2009. Counsel for the Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 8 petitioner contends that since the original landlords have died, therefore, the rent could not be deposited for the subsequent period i.e. from April 2009 onwards.
Notice of motion for 22.05.2012.
Dispossession of the petitioner is stayed, subject to the petitioner depositing the arrears of rent (from April 2009 to March 2012) by 31.3.2012 with the Rent Controller and shall continue depositing the rent which accrues by the 7th of every month with the Rent Controller failing which the protection granted by this Court shall be deemed to have been vacated."
22.5.2012 Respondent No.5 is reported to have died.
Learned counsel for respondents No.1 to 4 has submitted that the petitioner has relied upon Rent Receipt dated 28.3.2009 alleged to be issued Ram Kishore Bhardwaj. He has further contended that Ram Kishore Bhardwaj died on 22.6.2007. In these circumstances, Receipt(Annexure P-4)dated 28.3.2009 is a forged and fabricated document.
Learned counsel for the petitioner is Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 9 directed to file the affidavit of petitioner on the next of hearing to clarify the said position.
Adjourned to 02.08.2012."
02.08.2012 In pursuance to the order dated 22.05.2012, affidavit of the petitioner has been filed.
Learned counsel for respondents seeks time to argue the matter.
Adjourned to 04.12.2012.
4.12.2012 As regards order dated 22.05.2012 it has been mentioned that in fact the year on the advance rent receipt should have been 2007 and inadvertently it has been mentioned as 2009. Consequently that issue can now be considered to have been explained by the petitioner.
Adjourned to 24.01.2013."
24.01.2013 "On 06.03.2012 while issuing notice of motion, this Court has directed as follows:-
Dispossession of the petitioner is stayed, subject to the petitioner depositing the arrears of rent (from April 2009 to March 2012) by 31.3.2012 with the Rent Controller and shall continue depositing the rent which Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 10 accrues by the 7th of every month with the Rent Controller failing which the protection granted by this Court shall be deemed to have been vacated."
A query has been put to learned counsel whether aforesaid order has been complied with. He, however, prays for a short adjournment to seek instructions and file an affidavit of the petitioner Adjourned to 12.3.2013."
A perusal of the aforesaid orders would show that the order dated 6.3.2012 staying dispossession of the petitioner was passed subject to payment of rent upto 31.3.2012. No doubt, in the aforesaid order, this Court had noticed that the petitioner may deposit the arrears of rent (w.e.f April, 2009 to March 2012) and there was no specific direction to pay the rent w.e.f. April 2007, however, it may be noticed that it was for the petitioner to come out with clear facts. The petitioner who himself knew about the factum of payment of rent upto March, 2007 did not clarify the fact before the Court and relied upon a false receipt produced by him before this Court. Moreover, even after clarification of the aforesaid fact, as noticed vide order dated 22.5.2012, the petitioner has not deposited the rent for the said period till date.
The judgment relied upon by the learned counsel for the petitioner in Balkar Singh's case (supra) is not applicable to the facts of the case as in the said case the adjourned date was found to be a Sunday and even the next working day was found to be closed being a holiday. Moreover, the petitioner in the aforesaid case had come the very next date in the Court and moved an application for setting aside the ex parte order Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 11 in the post lunch session, whereas he was proceeded ex parte in the pre lunch session and in the facts and circumstances of the case, the Court had set aside the order of proceeding against ex parte under Order 8 Rule 10 CPC. Moreover, in the said case, no final ex parte decree was passed against the said defendant. The other judgment relied upon by the counsel for the petitioner in Mahesh Yadav's case (supra) is also not applicable in the instant case as admittedly, the Rent Controller is not vested with the power of review.
It is well settled that a statutory authority can exercise the power of review only if it is vested with it under the statute. The observations of the Hon'ble Supreme Court are in a civil suit while discussing an application filed under Order 9 Rule 13 CPC. No doubt under the provisions of CPC, Civil Court is vested with the power of review as contained in Order 47 Rule 1 CPC but provisions of CPC are not applicable in stricto senso to the Rent Controller as it is not in dispute that the Rent Controller is a persona designata as held by a Full Bench of this Court in Pitman's Shorthand v. Lila Ram & sons AIR (37) 1950 East Punjab 181.
Be that as it may, a perusal of the impugned order would clearly show that in this case, the landlord had approached this Court for eviction of the petitioner from the demised premises (one room only) in the year 1992 and the ex parte decree was passed on 23.8.2004 yet the respondent-landlord gave a concession vide order dated 15.9.2006 for setting aside the said ex parte decree subject to payment of costs and filing of the written statement, yet on the adjourned date on 11.10.2006, neither costs were paid nor written statement was filed and only a request was made for adjournment on the ground that his counsel was unable to attend Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 12 the Court. Since the order dated 15.9.2006 was a conditional order and payment of costs was a condition precedent for setting aside the ex parte order, the said order ceased to operate as rightly observed by the Rent Controller. Not only this, from the conduct of the petitioner, it is clear that the remedy being pursued by him was nothing but an act of abusing the process of law and an attempt to thwart the execution of eviction orders and to gain as much time as he could. As from the facts, it is found that the petitioner has moved an application for setting aside the aforesaid order on the false premises stating that a wrong date was noted, as according to the petitioner the case was adjourned to 13.10.2006 and not to 11.10.2006, whereas from the order dated 11.10.2006, it is clearly made out that the aforesaid stand taken by the petitioner is falsified as a counsel was present on behalf of the petitioner to make a request for adjournment. Even in the application, the petitioner has stated that he was present in Court on 6.11.2006 whereas a perusal of the aforesaid order would show that the petitioner was not present. All these facts clearly establish that the petitioner has only one intention i.e. to delay the matter by misleading the Court.
It may further be noticed that the receipt dated 28.3.2009 alleged to be issued by Ram Kishore Bhardwaj is a forged and fabricated document as noticed by this Court vide order dated 22.5.2012.
At the asking of the Court, the petitioner filed an affidavit wherein he admitted that inadvertently, date was wrongly typed in the receipt produced before this Court and the said receipt is in fact issued on 28.3.2007.
At this stage, it may further be noticed that on 6.3.2012, dispossession of the petitioner was stayed subject to the petitioner Saini Pushpinder 2013.07.20 11:58 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.1386 of 2012 (O&M) 13 depositing the arrears of rent upto 31.3.2012. Though the petitioner filed an affidavit dated 11.3.2013 to state that the said order has been complied with, however, the fact remains that even after admitting the fact that Ram Kishore Bhardwaj had issued rent receipt upto 28.3.2007 and not upto 28.3.2009, the petitioner has failed to deposit the rent for the aforesaid two years.
Moreover, in the instant case, application for setting aside the ex parte order was allowed subject to payment of costs on the next date i.e. 11.10.2006 but the petitioner has failed to make the payment and thus, the order of the Court dated 6.11.2006 was passed in consequence of the conditional order dated 15.9.2006 and the petitioner could have availed any other remedy available to him before the Higher Court and remedy for setting aside its own order dated 6.11.2006 and restore the order dated 15.9.2006 was not available to him Since, the petitioner has never moved to the higher Court against the aforesaid order of the Rent Controller and has chosen to continue with the said application for six long years instead of approaching the appropriate forum, clearly depicts his designs to delay the proceedings and gain as much time as he could.
Thus, it has been found that the petitioner has failed to deposit the complete arrears of rent uptil date, as noticed above, and further has approached the Court with misleading facts and has chosen a wrong remedy with malafide intentions, he is not entitled to any relief.
Therefore, no fault can be found with the impugned order. Dismissed with costs which are assessed at Rs.1,000/-.
July 17, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.07.20 11:58
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CR No.1386 of 2012 (O&M) 14
Saini Pushpinder
2013.07.20 11:58
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CR No.1386 of 2012 (O&M) 15
Saini Pushpinder
2013.07.20 11:58
I attest to the accuracy and
integrity of this document
High Court Chandigarh