Punjab-Haryana High Court
Mahabir Parshad Garg vs Mahabir Parshad & Anr on 13 August, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CR No.5033 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.5033 of 2012 (O&M)
Date of decision: 13.08.2013
Mahabir Parshad Garg ......Petitioner(s)
Versus
Mahabir Parshad & anr. ......Respondent(s)
CR No.5034 of 2012 (O&M)
Date of decision: 13.08.2013
Mahabir Parshad Garg ......Petitioner(s)
Versus
Mahabir Parshad & anr. ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Puneet Bali, Sr. Advocate with Mr. Ranjit Saini, Advocate
for the petitioner.
Mr. I.K. Mehta, Sr. Advocate with Mr. R.K. Dogra, Advocate for
the respondents.
Rakesh Kumar Garg, J.
This judgment shall dispose of two revision petitions i.e. CR No.5033 of 2012 and 5034 of 2012 which have arisen out of the same eviction petition filed on behalf of the respondent-landlords against the petitioner for his eviction from the demised premises.
The brief facts giving rise to the present revision petitions are that the landlord-respondents filed an ejectment petition before the Rent Controller, Chandigarh with a prayer for ejectment of the petitioner from the front half portion of SCO No. 158, Grain Market, Sector 26, Chandigarh, on Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 2 the ground of non-payment of arrears of rent w.e.f 1.2.1998 @ 1900/- per month.
Upon notice, the petitioner-tenant appeared and filed written statement raising various preliminary objections and disputed his liability to pay rent w.e.f 1.2.1998 alleging to have paid the rent upto March, 2008. The petitioner-tenant took a specific objection that earlier the respondent- landlords had filed a Civil Suit No.476 of 13.11.2003 titled as Mahabir Parshad & anr. v. Mahabir Parshad & ors. claiming his eviction and also for recovery of Rs.1,53,813/- @ 1900/- per month as rent w.e.f 12.11.2000 to 29.9.2003 plus damages of Rs.40,000/- on account of unauthorized use and occupation of the premises w.e.f.30.9.2003 to 10.11.2003 plus interest of Rs.1067/- @ 24% per annum and in that suit a specific issue was framed regarding entitlement of the respondent-landlords to recover an amount of Rs.1,53,813/- as rent for the aforesaid period which was decided against the respondent-landlord. It was the further case of the petitioner that he had paid the rent upto March, 2008 but the respondent-landlords had not issued rent receipts. Accordingly, the petitioner submitted that ejection petition was totally misconceived and was liable to be rejected.
It is a matter of record that the Rent Controller vide order dated 17.12.2009, assessed the provisional rent for the demised premises at Rs.3,31,500/- and directed the petitioner to pay the said amount upto 12.1.2010.
The relevant part of the said order reads thus:
1. Arrears of rent for = Rs. 2,48,900/-
131 months i.e. w.e.f. 01.02.1998 to 31.12.2009 at the rate of Rs.1,900-per Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 3 month.
2.Interest @ 6% p.a. = Rs. 82,137/-
3. Costs = Rs. 463/-
Total = Rs.3,31,500/-
Now to come up on 12.01.2010 for payment of rent assessed (Rs.3,31,500/-) as above. Hence request of the applicant to assess provisional rent stands allowed.
Announced in open Court.
17.12.2009 Sd/-
AMIT SHARMA Rent Controller, Chandigarh."
Against the said order of provisional assessment of rent, the petitioner filed CR No.142 of 2010 in this Court. The said order dated 12.1.2010 of this Court in the said revision petition reads thus:
"The grievance of the petitioner is that the assessment of the provisional rent had been made by the learned Rent Controller for a period of more than three years. Learned counsel for the petitioner states that the petitioner would, otherwise, be depositing the provisional rent assessed for a duration of three years.
Notice of motion. 26.03.2010 C.M.No.404-CII of 2010 In the meantime, the operation of the impugned order shall stand stayed till the next date of hearing.
Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 4
Sd/-
(S.D.ANAND) Judge January 12,2010"
It is a matter of record that the petitioner tendered a sum of Rs.1,14,000/- as rent for the period w.e.f. 1.4.2005 to 31.3.2010 @ Rs.1140/- for shop portion plus Rs.760/- for godown by way of demand draft and also deposited costs of Rs.463/- in cash on 12.1.2010 subject to the decision of this Court in the aforesaid civil revision. The said amount of rent was accepted by the respondent-landlords without prejudice to their rights.
It is a matter of record that CR No.142 of 2010 filed by the petitioner against the order of provisional assessment of rent was dismissed as withdrawn by this Court vide order dated 24.9.2010 in the following manner:
Present petition is filed assailing judgment dated 17.12.2009 passed by learned Rent Controller, Chandigarh whereby learned Rent Controller has passed order assessing the rent provisionally.
Learned counsel for the petitioner after arguing almost 15 minutes seeks permission to withdraw this petition. Learned counsel for the petitioner states that he will be raising all the points before the Rent Controller.
Present petition is dismissed as withdrawn. Petitioner is always at liberty to raise all the points Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 5 before the Rent Controller, which can be raised in accordance with law.
Sd/- Alok Singh Judge 24.9.2010."
Thereafter, the petitioner filed an application before the Rent Controller for recalling of the order dated 17.12.2009 whereby provisional rent was assessed. However, the said application of the petitioner was dismissed vide order 9.12.2011.
While dismissing the aforesaid application for recalling of the order dated 17.12.2009, the Rent Controller held that application was not only frivolous and vexatious but is also gross misuse of the process of law as the petitioner had failed to bring out any provision in the Rent Act or any other law for that matter according to which the order of provisionally assessed rent could have been recalled.
Still not satisfied, the petitioner filed Misc. Civil Appeal No.4 of 4.1.2012 against the aforesaid order of the Rent Controller before the Appellate Authority.
In the meantime, the respondent-landlords moved an application on 7.1.2012 before the Rent Controller, Chandigarh, for passing an order of eviction against the petitioner on the ground that he has failed to deposit the entire amount of provisional rent as assessed by the Rent Controller vide order dated 17.12.2009. The Rent Controller vide order dated 9.2.2012 ordered the eviction of the petitioner from the demised premises holding that the petitioner was bound to pay the provisional rent as assessed in which he has failed and therefore, the petitioner was liable to be evicted from the demised premises. Accordingly, the eviction petition Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 6 was allowed and the petitioner was directed to vacate the premises in question within two months from the date of said order and hand over the possession of the same to the respondent-landlords.
Still aggrieved against the aforesaid order of eviction dated 9.2.2012, the petitioner filed an appeal before the Appellate Authority bearing Rent Appeal No.43 of 10.3.2012.
The said appeal of the petitioner against the order of his eviction dated 9.2.2012 and Misc. Civil Appeal No.4 of 4.1.2012 filed by him against the order dated 9.12.2011 (whereby the application filed by the petitioner for recalling of the order dated 17.12.2009 of provisional assessment of arrears of rent was dismissed) were dismissed vide one common order dated 1.8.2012.
While dismissing Misc. Civil Appeal No.4 of 4.1.2012 against the order dated 9.12.2011 of the Rent Controller, the Appellate Authority held that such an application for recalling of the order of assessment of provisional rent is not maintainable and observed as under:
"There is no merit in the arguments raised on behalf of the respondent that he was not granted any opportunity by the Rent Controller to tender the arrears of rent subsequent to vacation of stay by the Hon'ble High Court, on account of dismissal of the revision petition. It was respondent himself who had withdrawn the revision petition, without any directions from the Hon'ble High Court for tender of balance arrears of rent. The respondent also made no submission to the Rent Controller for tender of rent Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 7 immediately after withdrawal of the revision petition."
While dismissing Rent Appeal No.43 of 10.3.2012 of the petitioner against the order of his eviction, the Appellate Authority relying upon a judgment of this Court in Mrs. Birinder Khullar v. Maninder Singh 2011 (2) RCR (Civil) 751 and a Division Bench judgment of this Court in Rajan alias Raj Kumar versus Rakesh Kumar 2010(2) PLR 201 held that after dismissal of his revision petition, the petitioner-tenant was obliged to seek permission of the Revisional Court at the time when stay was vacated for the purpose of tendering the remaining amount of provisionally assessed rent to escape from the ratio of law in Rajan's case (supra) wherein it has been held that if the tenant does not deposit the provisional assessment rent on the stipulated date then he is liable to be evicted and no other order is required to be passed.
Not only this, while dismissing the appeal, the Appellate Authority further found that onus was upon the petitioner to prove that he had paid the rent upto March, 2008 in which he has miserably failed to prove the said fact and admittedly, he has tendered lesser amount than the amount of provisional rent as assessed and that being so, the petitioner was not entitled to any relief.
The instant revision petitions have been filed challenging the aforesaid orders of the Authorities below.
At the outset, it may be noticed that no worthwhile argument has been raised by the petitioner in CR No.5034 of 2012, arising out of Rent Appeal No.4 of 4.1.2012 wherein the petitioner has challenged the order dated 9.12.2011 rejecting his prayer for recalling/reviewing of the order of provisional assessment of rent dated 17.12.2009, as counsel for Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 8 the petitioner could not dispute the settled proposition of law held by a Full Bench of this Court in M/s Pitman's Shorthand Academy versus B. Lila Ram and sons AIR (37) 1950 East Punjab 181 that under the statute, the Rent Controller a persona designata and has not been vested with the power to review his own order. Moreover, the petitioner had already challenged the order of provisional assessment of rent dated 17.12.2009 before this Court vide CR No.142 of 2010 and the same was dismissed as withdrawn vide order dated 24.9.2010 on the prayer of the petitioner himself and and he was not given any liberty to get the aforesaid order recalled as liberty was granted only to raise all the points in accordance with law. In view of the fact that the Rent Controller is not vested with the power of review, it cannot be argued that prayer for recalling of the order dated 17.12.2009 was made in accordance with law.
In CR No.5033 of 2012 (against the order dated 1.8.2012 passed in Rent Appeal No.43 of 10.3.2012 ), the learned counsel for the petitioner has vehemently submitted before this Court that while dismissing CR No.142 of 2010, the petitioner was given opportunity to raise all the points before the Rent Controller and therefore, he should have been granted an opportunity to tender the remaining amount of provisional rent as assessed by the Court and since the Authorities below have failed to take note of the aforesaid fact, the impugned orders of eviction against the petitioner are liable to set aside and the ejectment petition is liable to be dismissed. Counsel for the petitioner has further argued that in view of the findings of the Civil Court wherein a specific issue was framed with regard to the liability of the petitioner for payment of rent for the period w.e.f 12.1.2000 to 29.9.2003, it cannot be held that the petitioner is in arrears of rent.
Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 9
Though after noticing the fact that the petitioner has failed to make the payment of provisional rent as assessed and has incurred his liability of eviction from the demised premises in view of the Division Bench judgment of this Court in Rajan's case (supra) and Rakesh Wadhawan vs. M/s Jagdamba Industrial Corporation & Ors. 2003 (2) Civil Court Cases 361 (SC), there is no need to further go into any other question yet this Court may mention at this stage that even the argument as raised is liable to be rejected as it is well settled that payment of rent has to be proved by the tenant. In this case, the petitioner has taken a specific plea that after dismissal of civil suit in March, 2008, he was making the payment upto March 2008, but no receipt was issued to him has not been accepted as the respondent has come with a specific plea of non-payment of rent w.e.f. 1.2.1998. The petitioner has failed to lead any evidence to prove the aforesaid factum that even after dismissal of Civil Suit No.476 of 13.11.2003 on 27.3.2008, he has paid the rent of the demised premises w.e.f. 30.9.2003 as admittedly, the petitioner has tendered an amount of Rs.1,14,000/- plus interest of Rs.463/- for a period of 36 months prior to the filing of the eviction petition on 12.3.2008. Moreover, the suit was filed as a Notification was issued that properties fetching rent more than Rs.1,500/- per month would not come within purview of East Punjab Urban Rent Restriction Act. The said notification was subsequently struck down by the Hon'ble Supreme Court. The suit was decided under Order 17 Rule 3 Code of Civil Procedure as plaintiffs (now respondents) had failed to lead any evidence. With the striking down of Notification, the proceedings taken in the civil suit are a nullity. The petitioner cannot take benefit of any such finding recorded by the Civil Court that respondents have failed to prove that they were entitled for recovery of Rs.1,53,813/- on account of Saini Pushpinder 2013.08.20 14:25 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.5033 of 2012 (O&M) 10 unauthorized use and occupation. Moreover, the petitioner in the present case was to prove the payment of arrears of rent being in occupation of the demised premises as a tenant and not for the unauthorized use and occupation. The said judgment and decree passed in civil suit are thus of no help to the petitioner.
The argument of the petitioner that the respondent-landlord is not entitled to recover the rent beyond a period of three years is liable to be rejected outrightly. It is well settled that ejectment petition is not a recovery suit for which limitation period of three years is prescribed, but a petition for the ejectment of the tenant on certain grounds including the ground that tenant is in arrears of rent. The Rent Act grants liberty to the tenant to tender the arrears of rent and thereby escape ejectment on said ground and he is bound to pay or tender the arrears of rent found due against him irrespective of the fact that rent is due for a period of more than three years. Moreover, counsel for the petitioner has raised the aforesaid issue but has not supported the said argument with any provision of law or the judgment. Therefore, no fault can be found in the findings of the Authorities below.
No other argument has been raised.
Thus, both the petitions are dismissed having no merit. A photocopy of this judgment be placed on the file of another connected case i.e CR No.5034 of 2012.
August 13, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.08.20 14:25
I attest to the accuracy and
integrity of this document
High Court Chandigarh