Punjab-Haryana High Court
Ameek Singh vs D.N.Gaur on 20 November, 2009
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.4388 of 2009
Date of decision:20.11.2009
Ameek Singh ....Petitioner
versus
D.N.Gaur, Chief Engineer, Nuclear Power Corporation of India Limited.
...Respondent
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr.J.S.Bhatti, Advocate, for the petitioner.
Mr. P.S.Rana, Advocate, for the respondent.
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1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
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K.Kannan, J.
1. The tenant, who has been directed to be evicted by the Rent Controller and the Appellate Authority, is the revision-petitioner before this Court. The non-payment of rent on the basis of which the landlord sought for eviction was for a period from 01.03.2004 to 31.03.2005 at Rs.4,000/- per month and a sum of Rs.6,500/- was also reported as outstanding towards arrears of house tax. The contention on behalf of the respondent was that although the rent note was for Rs.4,000/-, there was an oral agreement to reduce the rent to Rs.3,000/- and it had also been admitted so in the evidence of the landlord. The further contention was that he had paid rent at all times and there was no default. An additional plea in alternation was that the tenant had paid Rs.3 lakhs Civil Revision No.4388 of 2009 -2- pursuant to an oral agreement to purchase the property and even if the agreement could not be enforced, the said amount ought to have been directed to be adjusted against the amount that is found due. The Rent Controller and the Appellate Authority rejected the contention of the tenant finding that there was no proof for payment of lease for the relevant period and directed eviction.
2. The learned counsel appearing for the revision-petitioner contends that the quantum of rent as having been reduced from Rs.4,000/- to Rs.3,000/- was admitted in the evidence of the landlord and referred to his statement in his cross-examination, " he (tenant) told that he can give the rent at Rs.3,000/- per month from July (2004) and he agreed for the same. But he did not give complete rent upto July, 2003"
(sic). Elsewhere in the cross-examination, the landlord had also admitted, "it is correct that in Ex.R-1, I asked the rent from Ameek Singh at Rs.3,000/- per month." The learned counsel, therefore, contended that the rent had been reduced only to Rs.3,000/- and the finding of the two Courts below that the tenant was in arrears of rent @ Rs.4,000/- per month was erroneous.
3. The learned counsel also stated that the procedure adopted by the Rent Controller was improper in directing eviction without affording to the tenant an opportunity to make the payment and only on failure to comply with the directions, eviction could have been ordered. He refers to a decision of the Hon'ble Supreme Court in Rakesh Wadhawan Versus M/s Jagdamba Industrial Corporation- 2002 HRR 367, that if a dispute regarding rate of rent and quantum of rent payable Civil Revision No.4388 of 2009 -3- by a tenant existed, the Rent Controller should make assessment on arrears of rent including interest and cost of litigation. It should fix provisional rent payable by tenant on the first date of hearing and if rent is found more than the provisional rent at the final adjudication, then the tenant must be provided one more opportunity to pay the deficient rent to escape the eviction. This decision, according to the learned counsel, was not followed by either the Rent Controller or the Appellate Authority. The learned counsel also urged that the case of non-payment of rent itself was not justified since the landlord had already received Rs.3 lakhs as advance and therefore, more than what was payable to him as arrears was being retained by him and hence, the landlord cannot complain of non- payment of rent. In my view, each one of the contentions is fallacious.
4. As regards the actual quantum of rent payable, the landlord's application was founded on a rent note under which the tenant had admitted himself to be liable to pay rent @ Rs.4,000/- per month. He was pleading for an oral agreement for a reduction of rent to Rs.3,000/-. While alteration of the terms of an agreement reduced in writing by parole evidence is inadmissible by virtue of Section 92 of the Evidence Act, the learned counsel pleaded for such a case in view of the admission made by the landlord that the tenant was expressing a difficulty for payment of Rs.4,000/- and offered to pay only Rs.3,000/-. In my view, even a notice requiring him to pay Rs.3,000/- will not conclude the issue, for, there is no case of waiver of the entitlement of the landlord to receive a sum in excess of Rs.3,000/-. It could at best be only taken that the landlord was prepared to give a temporary reprieve to Civil Revision No.4388 of 2009 -4- the tenant to pay a lesser amount. If there had been a non-payment of the portion of the rent on a difficulty expressed by a tenant and the landlord was prepared to condone the same, it is wholly a different matter and the default in paying a portion of the rent may not amount to any willful conduct on the part of the tenant. It would not, however, completely make the tenant free of liability for making the payment of even the admitted amount. If the landlord had, in a case of such default, asked for the amount agreed under the Rent note the tenant can not defeat the landlord's right by a plea that he was demanding more than what was subsequently orally agreed to. Therefore, I find that although the landlord had given evidence to the effect that he had demanded @ Rs.3,000/- through R-1, it cannot still be contended that the agreed rate was only Rs.3,000/-. If the tenant had paid that amount, he would have been entitled to such concession only to ward of eviction. When he did not pay any amount, the landlord would be entitled to compute the subsisting liability @ Rs.4,000/- per month.
5. The law enables the tenant to secure receipt for the payment of the rent. There is no proof at all for the payment of rent for the relevant period. It is unnatural to contend that the tenant had paid any amount without obtaining any receipt; more so, on account of the fact that the landlord had already filed a petition for eviction earlier on the ground of personal requirement of the premises. There had also been an order of eviction. The relationship of the parties had not been too cordial and in such a situation, the tenant could never have tendered the rent without obtaining receipt. The learned counsel for the tenant made an Civil Revision No.4388 of 2009 -5- out of context reference to receive rent by the landlord for the earlier period before 01.04.2004 as though the said payments related to the period of 13 months which were the subject of complaint and the basis for action for eviction. The contention that the tenant had been making payments towards arrears was itself inconsistent with his contention that he had paid Rs.3 lakhs and that amount should be adjusted against the amount retained by the landlord. What I have observed with reference to the alleged payment of rent as being an unnatural conduct would even apply for the alleged payment of Rs.3 lakhs, for, when the relationship between the parties was not cordial, there could not have been an agreement for sale of the property without the same being reduced in writing. Even the payment of such a large sum could not have been made without obtaining any receipt.
6. The reference to the applicability of the Hon'ble Supreme Court in Rakesh Wadhawan's case itself is wholly misplaced. If the dispute was only with reference to the quantum of rent and the Court had made provisional assessment of the rent during the pendency of proceedings and in the ultimate final adjudication, the Court found that larger sum was due, the Rent Controller could not have directed eviction without affording an opportunity to make the payment. To apply the said decision to this case, if the contention of the landlord had been that the rent was Rs.4,000/- and the tenant was contending that it was only Rs.3,000/- and he had also paid at that rate, it would be open to the Rent Controller to make a provisional assessment as either Rs.3,000/- or Rs.4,000/- and also make an interim direction for making a payment on Civil Revision No.4388 of 2009 -6- the amount which he determined as payable in the final adjudication. At such final adjudication if the rent were to be assessed at Rs.4,000/- and the Court had also found that the tenant had paid till the conclusion of the proceedings amounts @ Rs.3,000/-, the Rent Controller was bound to give an opportunity to the tenant to make good the shortfall. Such a facility will not obtain to a tenant, who had been making a false contention that he had made all the payments and when the Rent Controller found that no amount at all had been paid. The question of grant of opportunity to a tenant did not arise in a case where the tenant pleaded a case of full discharge of liability by alleged prompt payments. There arose no occasion for determination of any provisional rent and a final adjudication in variance to the former interim order. On the other hand, when the Rent Controller was completely rejecting the contention of the tenant, there ought to be no occasion for grant of any further time. The tenant had indeed disentitled himself to any kind of favourable discretion by taking a further false plea of an alleged agreement of sale and the so-called payment of advance which was liable for adjustment. Both the Rent Controller and the Appellate Authority found that there had been no such agreement and the so-called payment of Rs.3 lakhs was not true. The contention of the tenant has been found to be false on every one of the counts and there is no scope for making any modification in the order.
7. The learned counsel appearing for the tenant also pleaded that even if the contention of the tenant is not accepted, since he is a practising lawyer himself, he may be granted at least six month's time for Civil Revision No.4388 of 2009 -7- eviction. The indulgence that may be appropriate in an usual case where the tenant who is ordered to be evicted may require some time for relocating himself, shall not avail to a tenant who takes up false pleas and who happens to be a lawyer. He ought to therefore know his responsibilities and the need for rectitude. A lawyer that takes up a false plea, not merely advocating the cause of a client narrating his version bona fide, but pleading for himself, does gross injustice to the name of the profession by taking false pleas. These are hard times when the public ire against the legal fraternity is on the ascendancy. It is not unheard of for even honest lawyers to find the harrowing experience of securing accommodation as tenants. Some landlords perceive lawyers seeking properties as tenants as belonging to a troublesome genre. A lawyer needs to play his cards carefully and ought not to do any act which is in public gaze that may bring a bad name not merely to the individual but also to his fellow professionals. Hearken what the Hon'ble Supreme Court said of a lawyer advising the client professionally and also his conduct appearing as a party litigant himself in R.K.Anand Versus Registrar, Delhi High Court-(2009) 8 SCC 106, as under:-
"We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for the administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a Bar that enjoys the unqualified trust and confidence of the people, that shares the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people."Civil Revision No.4388 of 2009 -8-
8. The tenant cannot drag his feet any longer on false pleas. The mandate shall be 'evict lock, stock and barrel' and the eviction order shall work itself in right earnest with no further let up.
9. The Civil Revision is, accordingly, dismissed with cost assessed at Rs.3,000/-.
(K.KANNAN) JUDGE 20.11.2009 sanjeev