Punjab-Haryana High Court
Sudarshan Mahajan vs Sahibpreet Singh And Anr on 31 October, 2022
CR No.1200 of 2022 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Sr. No.251 CR No.1200 of 2022 (O&M)
Reserved on: 21.10.2022
Date of Decision: October 31, 2022
Sudarshan Mahajan .... Petitioner
Versus
Sahibpreet Singh and another ... Respondents
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA
Present: Mr. Divanshu Jain, Advocate
for the petitioner.
Mr. Sunil Chadha, Senior Advocate with
Mr. Akshay Chadha, Advocate and
Mr. Tara Dutt, Advocate
for respondent No.1.
***
TRIBHUVAN DAHIYA, J.
This is petitioner/tenant's revision petition under Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Rent Act') for setting aside the order of eviction passed by Rent Controller dated 16.02.2019 as well as the order of the Appellate Authority dismissing the tenant's appeal vide order dated 21.12.2021.
2. The respondent No.1/landlord filed ejectment petition with respect to the premises in question, i.e., shop on ground floor of property No.80, 486/1-6 Katra Jaimal Singh Amritsar, as detailed in the petition. The shop was let out to the tenants by the erstwhile landladies Munisha wife of 1 of 14 ::: Downloaded on - 01-11-2022 05:40:17 ::: CR No.1200 of 2022 2 Anil Kumar Khurana and Kamal wife of Kishore Chand Khurana at the rate of Rs.500/- per month. The tenancy was oral, accompanied by delivery of possession. To reduce the terms thereof in writing, a rent note dated 10.03.2000 was executed by the tenant in favour of the landladies. The date of commencement of tenancy was 01.03.2000 for a period of eleven months. Later on, one of the landladies, Kamal wife of Kishore Chand Khurana, expired and her share in the property devolved upon her grandson Kavish Khurana son of Anil Khurana, based upon her Will. Munisha and Kavish, landlords transferred their right, title and interest in the suit property in favour of the present landlord/respondent No.1 on 28.03.2007 vide registered sale deed. Accordingly, he became owner/landlord of the property with effect from that date. To facilitate recovery of rent of the demised premises, respondent No.1 authorized Munisha Khurana and Kavish Khurana to recover rent of the property, and the same was being recovered by them up to 31.03.2010. The ejectment was sought on account of non- payment of rent and bona fide need of the landlord.
3. The Rent Controller, upon consideration of the evidence produced on record, ordered ejectment of the tenant from the demised property. The appeal filed against the ejectment order was dismissed by the Appellate Authority.
4. Learned counsel for the parties have been heard and record/evidence placed on the case filed has been perused.
5. Learned counsel for the tenant has essentially raised two arguments against the judgments of the Courts below. Firstly, it has been contended that the title of the landlord with respect to the demised premises is in dispute. He cannot claim ownership of the property/demised premises on the basis of sale deed dated 28.03.2007 (Annexure P-9) since it pertains 2 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 3 only to purchase of malba and not the property in question. The second argument raised by learned counsel is, despite specific applications having been moved before the Courts below for framing of issues on this aspect of defective title, the same have not been dealt with/decided. In this regard, he has referred to Annexures P-16, application dated 16.08.2019 under Order XLI Rule 25 CPC and Annexure P-18, application dated 29.07.2021 under Order XIV Rule 5 CPC filed by the tenant before the Appellate Authority. He contends, since both the applications have not been dealt with by the Appellate Authority and no order thereupon has been passed, the judgment in appeal deserves to be set aside and the matter remanded to the Appellate Authority for fresh adjudication thereupon as well as the appeal.
6. Per contra, learned senior counsel for the respondent, by referring to the documents placed on record on behalf of the landlord, states that the issues raised herein by the learned counsel for the tenant already stand decided by the Courts below. He further submits that the sale deed in question pertains to the entire property and not to any malba. If read in totality the deed undisputedly points to sale of the entire property. It has further been submitted that the issues sought to be raised by the tenant now before this Court regarding defective ownership of the landlord on the basis of the sale deed, were in fact, raised by him before the Rent Controller also by moving application under Order XIV Rule 5 CPC, which was dismissed. The subsequent applications filed by the tenant for amendment of the plaint with regard to the same issue were also dismissed. Therefore, he is not entitled to agitate the same issue before this Court.
7. The first argument advanced by learned counsel for the tenant is that the sale deed dated 28.03.2007 (Ex. AW4/1) pertains only to malba and not to the entire property, therefore, based on that landlord can not 3 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 4 claim ownership, nor can he seek eviction from the premises. The argument cannot be accepted in view of the finding recorded by the Appellate Authority on the point. It has been held that PW4, scribe of the sale deed, in her cross examination has stated that full shop was purchased by the landlord vide this sale deed, and not the malba. Besides, the sale deed, which has been placed on record as Annexure P-9, clearly mentions, "the purchaser has become the owner of the said property like us. If due to earthquake or for any other reason, the shop is demolished, then the purchaser will be entitled to construct the shop of the same measurement at this place at his own expenses without any hindrance." Provisions of the sale deed mentioning malba are, "now we, in our full senses, out of our free will, without any fear have sold the said property/shop only malba (without basement and roof) along with the right of passage, rights of ownership, which are available to us, to Sahib Preet Singh Chauhan son of Sh.Harcharan Singh son of late Kartar Singh, resident of A-126/127, Ranjit Avenue, Amritsar (Punjab), India for a sum of Rs.1,52,000/- (Rupees one lac fifty two thousand), the half of which is Rs.76,000/- and the possession of the same has been handed over to the purchaser. From today, the purchaser is entitled to receive the rent from the tenant and for the eviction, restoration of the tenant, the purchaser will be responsible." A reading of the sale deed in entirety with the aforesaid provisions makes it apparent that the property conveyed was the building in question and not its debris/malba. Otherwise, there was no reason to mention handing over of possession to the purchaser entitling him to receive rent and to evict tenant therefrom. Merely because word malba has been mentioned, it does not in any manner establish that whole of the property was not sold to the landlord. The word has been used 4 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 5 only as a colloquial expression to mention the property sold, and not to debris.
7.1. Further, based upon the sale deed, a letter dated 16.07.2012 (Annexure P-15) was issued by the erstwhile landlords to the tenant, informing that the shop in question has been sold to the landlord/respondent No.1 and tenant is bound to pay the rent of the shop in question, i.e., Vikrant Print Store, 80-Katra Jaimal Singh, Amritsar, directly to the landlord/purchaser of the property. Pursuant thereof, the tenant filed the petition for deposit of rent dated 09.08.2012 under Section 31 of the Punjab Relief of Indebtedness Act, 1934 (R-3: Ex.AW10/17) against the landlord on the ground that the latter was not accepting rent of the demised premises due to mala fide intention. The petition was allowed by the Rent Controller by order dated 16.12.2013 (Annexure R-1) assessing the provisional rent and ordering deposit of the same along with arrears. One of the tenants, namely, Ved Parkash-respondent No.2 herein, made the following statement before the Rent Controller on 17.01.20XIV:-
Statement of Ved Parkash S/o Bindraban respondent Stated that I tender provisional rent of Rs.18109/- as assessed by the court.
RO&AC Sd/-
Sd/-Ved Parkash Rent Controller 17.01.20XIV
There is no denying the fact that the provisional rent was tendered without reserving any right to dispute ownership of the landlord. At the time of assessment of provisional rent also, no dispute about the ownership was raised by the tenants.
7.2. In view of these facts, it is apparent that the tenants have accepted respondent No.1 as owner of the demised premises on the basis of sale deed dated 28.03.2007, and also as the landlord by depositing rent as 5 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 6 well as arrears thereof. Besides, after attornment they/tenants are estopped from disputing ownership of the landlord.
8. The second argument raised by the learned counsel for the tenant with regard to framing of additional issues disputing ownership of the respondent-landlord, also deserves to be rejected in view of the following facts. Initially, an application under Order XIV Rule 5 CPC dated 05.01.2016 (Annexure R-5) was moved before the Rent Controller by the tenants for framing of following two additional issues:
3-A. Whether the eviction application filed by the applicant is malafide on the grounds mentioned in paras No.1 and 2 of the preliminary objections of the written statement?
3-B. Whether the alleged sale deed dated 28.3.2007 registered on 29.3.2007 is a defective document of title and it is a Benami, sham transaction and only a paper work to create a false ground of bonafide requirement? The Rent Controller vide order dated 02.07.2016 (Annexure R-7) considered and rejected the application for framing additional issues by observing that as per the settled law, under Section 116 of the Evidence Act a tenant being in possession is estopped from denying the landlord's title to the demised premises. Therefore, the application to frame additional issues disputing the title cannot be allowed. This order dated 02.07.2016 was not challenged by the tenants and the same attained finality. 8.1. Thereupon, another application was filed by the tenants under Order VI Rule 17 CPC dated 03.09.2014 (Annexure R-8) for amendment of the written statement. Amendment of the para 7 of the written statement was sought by adding the following sub para to it:
6 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 7 That as the alleged sale deed dated 28.3.2007 does not pass any title in favour of the petitioner, the petitioner does not become the owner and the landlord of the premises in question qua the respondents and as such, the respondents are not the tenants under the petitioner in the premises in question and the petitioner has no locus-standi to file the petition and the same is liable to be dismissed.
This application under Order VI Rule 17 CPC for amendment of the written statement essentially was to dispute ownership of the landlord on the basis of the sale deed dated 28.03.2007. The application was dismissed by the Rent Controller by order dated 19.08.2015 (Annexure R-9) holding that amendment was not essential for just and complete decision of the eviction petition. Once the tenants have admitted relationship of landlord and tenant between the parties, they are estopped from denying the landlords'title under Section 116 of the Evidence Act. This order dated 19.08.2015 was also not challenged by the tenants, and the same attained finality. 8.2. Even after the aforesaid orders, again an attempt was made by the tenants to dispute the landlord's ownership by filing another application under Order VI Rule 17 dated 22.10.2018 (Annexure R-10). By this application, the following preliminary objections No.4 was sought to be added in the written statement:
...It is submitted that the aforesaid sale deeds prove that the applicant Shri Sahibpreet Singh, his father Shri Harcharan Singh and Shri Anil Kumar Khurana son of Shri Kishore Chand Khurana, Manisha Khurana wife of Shri Anil Kumar Khurana and Shri Kavesh Khurana son 7 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 8 of Shri Anil Kumar Khurana had been purchasing the properties together and they have been doing the business of sale and purchase of the properties. Such facts also negative the plea of the applicant that he has purchased the shop in question from Smt. Munisha Khurana wife of Shri Anil Kumar Khurana and Shri Kavish Khurana son of Shri Anil Kumar Khurana and the alleged sale deed dated 28.3.2007 registered on 29.3.2007 is a fake, collusive, bogus and created document to create a false ground of bonafide requirement.
This amendment application to dispute the landlord's ownership by alleging the sale deed in question to be bogus and forged, was also dismissed by the Rent Controller vide order dated 16.11.2018 (Annexure R-11). It was held that tenants had already led evidence with regard to the issue that the sale deed was not in favour of the landlord, therefore, the application was without merits. This order too was not challenged by the tenant, and attained finality.
8.3. It is, therefore, apparent that the Rent Controller by order vide order dated 02.07.2016 (Annexure R-7) declined the tenants' application to raise additional issues disputing ownership of the landlord. Subsequently, by orders dated 19.08.2015 (Annexure R-9) and 16.11.2018 (Annexure R-11), the tenants were again not permitted to amend their written statement to dispute the ownership by pleading the sale deed to be bogus, collusive or that it did not convey any title. The said three orders undisputedly have attained finality. Once the issue has been finally settled, and permission to dispute the landlord's ownership, in one form or the other, to the demised premises has been declined three times by the Rent Controller by the afore 8 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 9 mentioned orders, there is no occasion for the tenants to agitate the issue again before this Court. Filing of the instant petition, therefore, is an abuse of the process of law. Besides, the aforesaid orders have been concealed from this Court by the tenant.
9. It has further been contended by learned counsel for the tenant that the application filed before the Appellate Authority under Order XLI Rule 25 CPC dated 16.08.2019 (Annexure P-16) to frame the following additional Issues and refer the same to Rent Controller, remained pending and the same was not disposed of for no reason. This has adversely affected tenants' rights. The issues sought to be framed by this application were:
i) Whether the previous landlord executed a legal and valid sale deed in favour of the applicant/landlord?
ii) Whether Smt. Kamal, during her lifetime had executed any alleged Will in favour of the applicant? If not, to what effect? OPA.
9.1. Not only that, another application moved before the Appellate Authority under Order XIV Rule 5 CPC dated 29.07.2021 (Annexure P-18) for framing of issues as mentioned in para 13 thereof, was also not decided. Therefore, the Issues disputing landlord's ownership to the demised premises need to be framed again, which are as follows:
i) Whether the alleged Sale Deed in favour of Sahibpreet Singh was a legal and valid document and created title in him? If not its effect?
ii) Whether there was relationship of landlord and tenant between the parties?
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iii) Whether the ground of alleged bonafide need was created one by the respondent and he in fact never needed the same bonafide?
iv) Whether the Rent Controller has got jurisdiction to entertain and try the ejectment petition.
9.2. The said two applications (Annexures P-16 and P-18) for framing additional issues were filed again disputing ownership of the landlord to the demised premises based upon the sale deed dated 28.03.2007, and also the Will in question. By referring to the applications, learned counsel has submitted, as the same were not decided/disposed of by the Appellate Authority, it calls for the remand of the case to the Appellate Authority for fresh adjudication thereupon before deciding the appeal. It has further been contended that provisions of Order XIV Rule 5 CPC are different and distinct from the provisions of Order XLI Rule 25, and, therefore, even if the application under Order XIV Rule 5 CPC stands dismissed by the Rent Controller, the tenants would have the right to move application under Order XLI Rule 25 CPC before the Appellate Authority for framing of issues to decide the dispute regarding ownership and remanding of the matter for that purpose.
9.3. Provisions of Order XIV Rule 5 CPC as well as Order XLI Rule 25 CPC are reproduced hereunder:
Order XIV Rule 5 of CPC
5. Power to amend and strike out issues-(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy
10 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 11 between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
Order XLI Rule 25 of CPC
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time. 9.4. A reading of Order XIV Rule 5 CPC makes it clear that it enables the Court to amend the issues or frame additional issues necessary for determining the matter in controversy between the parties before passing a decree, on such terms as it thinks fit. Order XLI Rule 25 CPC is to the effect, where the Court from whose decree the appeal is preferred, has omitted to frame or try any issue, or to determine any question of fact which 11 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 12 appears to the Appellate Court essential for right decision of the suit, it may frame issues and refer the same for trial to the Lower Court, from whose decree appeal has been preferred.
9.5. The question regarding framing of additional issues disputing ownership of the landlord undisputedly stands settled between the parties by the orders dated 02.07.2016, 19.08.2015 and 16.11.2018 passed by the Rent Controller as afore stated. By these orders tenants' applications questioning landlord's ownership and framing of Issues for the purpose were dismissed after hearing the parties. Meaning thereby, the Controller, based upon the reasoning given in the orders, declined to frame the Issues. It cannot by any stretch of imagination, therefore, be said that the Controller has "omitted to frame or try any issue, or to determine any question of fact". On the contrary, the decision was taken which attained finality too. It was specifically held that no such Issue regarding the landlord's ownership was required to be framed, nor any amendment disputing the ownership was to be permitted. Therefore, provisions of Order XLI Rule 25 CPC are not applicable to the instant case. It could not have been invoked by the tenants by filing the application dated 16.08.2019 (Annexure P-16), beseeching the Appellate Authority to frame additional issues disputing ownership of the landlord and refer the same to the Rent Controller for recording evidence thereupon. Nor could the tenant file the other application Order XIV Rule 5 CPC dated 29.07.2021 (Annexure P-18) for framing of issues, as similar applications were already dismissed by the Rent Controller vide the aforementioned orders dated 02.07.2016, 19.08.2015 and 16.11.2018. In these circumstances, even if the applications dated 16.08.2019 (P-16) and 29.07.2021 (P-18) were not decided by the Appellate Authority, no exception can be taken to it, nor any prejudice can be said to have been 12 of 14 ::: Downloaded on - 01-11-2022 05:40:18 ::: CR No.1200 of 2022 13 caused to the tenants on that account. No case for remand of the case to decide the issues raised in the applications is, therefore, made out. The contention is baseless and a deliberate attempt to misread provisions of the Code.
10. In view of the aforesaid, the instant revision petition fails and is hereby dismissed with costs of Rs.50,000/-(Rs. Fifty Thousand only) to be paid by tenant/petitioner for abuse of the process of law in filing the petition by concealing material facts and wasting time of the Court by agitating the issues which already stand settled before the Rent Controller. The costs are to be deposited by the petitioner within two weeks from today with the Poor Patients Welfare Fund, PGIMER, Chandigarh and receipt thereof is to be placed on the file of this petition.
11. The Registry is directed to report compliance of the direction to deposit costs to this Court thereafter.
12. Pending application(s), if any, stand disposed of as having been rendered infructuous.
(TRIBHUVAN DAHIYA)
JUDGE
October 31, 2022
Maninder
Whether speaking/reasoned : Yes
Whether reportable : Yes
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CR No.1200 of 2022 14
CR No. 1200 of 2022 (O & M)
Sudarshan Mahajan v. Sahabpreet Singh
Present: Mr. Divanshu Jain, Advocate, for the petitioner
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Learned counsel for the petitioner prays that he may be afforded an opportunity to challenge the judgment/order dismissing the revision petition with costs, and it may not be given effect to immediately.
The prayer is accepted and it is ordered that the judgment dated 31.10.2022 dismissing the revision petition with costs shall come in effect after six weeks from today, i.e., from 12.12.2022.
(TRIBHUVAN DAHIYA) JUDGE 31.10.2022 Maninder 14 of 14 ::: Downloaded on - 01-11-2022 05:40:18 :::