Punjab-Haryana High Court
Captain G.S. Punia vs Pardeep Aggarwal And Ors. on 6 March, 2002
Equivalent citations: 2002 A I H C 4607, 2002 HRR 328, (2002) 3 PUN LR 231, (2002) 2 RENCJ 144, (2002) 1 RENCR 451, (2002) 1 RENTLR 302
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. Learned Sr. Counsel for both the parties are agreed that this Revision Petition be finally decided at the motion stage only.
2. Petitioner-landlord has filed this Revision Petition under Article 227 of the Constitution of India and Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Rent Act") read with Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") with a prayer for setting aside the order passed by the learned Additional District Judge, Chandigarh in Misc. Civil Appeal No. 48 of 17.8.1999 decided on 19.8.1999 and for restoration of the order dated 11.8.1999 passed by the Civil Judge, Chandigarh. A further direction is sought to the Executive Court to execute forthwith the order dated 25.7.1998 passed by the Rent Controller, Chandigarh on the ejectment application filed by the petitioner.
2. The petitioner is the owner of House No. 502, Sector 18-B, Chandigarh. He filed ejectment application No. 119-A dated 25.4.1996 seeking the ejectment of respondents No. 3 and 4, namely, Naresh Kumar Aggarwal and Gurdial Singh Virk on the ground of non-payment of rent, personal necessity and material impairment in the value and utility of the tenanted premises. Respondent No. 4 - Gurdial Singh Virk was served through substituted service. He did not appear in Court and was proceeded ex- parte. The ejectment application was contested the demised premises for his personal use and occupation. It was pleaded that the petitioner, who was a pilot in the Indian Air Force, was badly injured during the Indo-Pak War, 1971, when his plane was shot down. The petitioner sustained 65% burn injuries and 100% disability. His right arm had to be amputated. He was awarded the gallantly award, popularly known as "Vir Chakra" by the Government of India. However, the petitioner had to retire from service on account of the disability suffered in the War. His father was shot dead by the terrorist on 30.5.1998. The petitioner had earlier owned and occupied H. No. 1832, Sector 34, Chandigarh. He sold the same in the year 1990 with a view to settle in the U.S.A. However, he could not settled in the USA. He owns a Gas Agency in Sector 32, Chandigarh which was allotted to him because of 100% disability caused by the injuries in the 1971 war. According to the case pleaded, the petitioner has no other place to go and settle in life. At present, he is staying as licensee with his daughter. It is further pleaded that the respondents have been guilty of such acts and conduct as are likely to materially impair the value and/or utility of the demised premises. Respondent No. 4, the original tenant, has sublet the premises to respondent No. 3 who is using the same as a Guest House. The user of the demised premises as a Guest House is a said to be against the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 and the rules framed thereunder. As a consequence, by order dated 11.8.1983, the demised premises were ordered to be resumed. The appeal filed by the petitioner against the order of resumption was dismissed on 27.2.1990. The Revision Petition against the order dated 27.2.1990 . has also been dismissed on 25.3.1992. The petitioner has filed CW.P No. 7941 of 1992 in this Court which is pending adjudication. The operation of the order of resumption has been stayed by this Court in the Civil Writ Petition by order dated 9.2.1993. It is pleaded that unless the High Court sets aside the order of resumption, the petitioner will lose the ownership of the site and the house built thereupon. Respondent No. 3 has denied the allegations made in the petition. Subletting is specifically denied. On the basis of the pleadings of the parties, the Rent Controller framed the following issues:-
"1. Whether the respondent is liable to be evicted from the demised premises on the grounds of personal necessity and impairment in the value and utility of the demised premises? OPP.
2. Whether the petition is liable to be set aside? OPR.
3. Whether the petition is bad for non-joinder for necessary parties? OPD.
4. Relief."
3. On 19.5.1998 when the case was fixed for evidence, the counsel for the petitioner and respondent No. 3-Naresh Kumar Aggarwal sought time for compromise. Subsequently, the petitioner and respondent No. 3 entered into compromise on 25.7.1998 which was duly exhibited on the record to the rent Controller, Chandigarh as Ex.C-2. Respondent No. 3 admitted both the grounds averred by the petitioner i.e. personal necessity and material impairment in the value and utility of the house in dispute. The rent Controller recorded the statement of Rejesh Kumar, Special Power of Attorney of Naresh Kumar Aggarwal who admitted the due execution of the compromised deed. On the basis of the compromise, the Rent Controller passed order of ejectment. In the compromise deed, it is stated that respondent No. 3 be given 15 days tir.ie to vacate the premises. The compromise was accepted by the petitioner. The Rent Controller observed that as the respondent virtually admits the case of the petitioner and only sought time for vacating the said premises, so the petition is allowed, in view of the compromise Ex.C-2 to the effect that the respondent shall vacate the said premises within 15 days from 25.7.1998. There is no need for recording separate judgment as it is compromise decree. Decree sheet be prepared and filed be consigned to the record room". Thereafter, the petitioner sought execution of the order dated 25.7.1998 passed by the learned Rent Controller, Chandigarh. The executing court issued warrants of possession. The same could not be executed since respondents No. 1 and 2 claim to be in possession of the premises. These respondents are the brothers of respondent No. 3. They filed objection Petition No. 318 of 1998 before the Executing Court claiming that they were in possession of the demised premised, in pursuance of an agreement dated 17.4.1998. The petitioner filed reply to the Objection Petition. The Executing Court framed the following issues:-
"1. Whether Capt. G.S. Punia colluded with the respondents Gurdial Singh and Naresh Kumar and obtained a consent decree at the back *bf the applicant by misrepresenting the facts. OPA
2. If issue No. 1 is proved whether the ejectment order dated 25.7.98 is liable to be set aside? OPR
3. Whether the applicant is a sub-tenant in the demised premises and is liable to be ejected? OPR
4. Whether the application is not maintainable? OPR.
5. Relief."
4. Executing Court by order dated 11.8.1999 dismissed the Objection Petition holding that the Objector had no locus standi to the file the objection petition and has no cause of action in their favour. It was held that the Objection Petition was not maintain able. The Objector, thereafter, filed the appeal which has been accepted by the appellate court on 19.8.1999. It is this judgment which is challenged by the petitioner-landlord in this revision petition.
5. I have heard the learned Sr. Counsel for the parties at length.
6. Mr. Jain, learned Sr. Counsel appearing for the petitioner submitted that the Objection Petition has been filed under Section 47 read with Order 21 Rule 29 of the Code. According to learned Sr. Counsel, the Objection Petition was not maintainable as the Objectors are claiming to be in possession of the demised premises on the basis of a family arrangement dated 17.4.1998 executed between the four brothers belonging to the Aggarwal Family, namely, Naresh Kumar Aggarwal, Pardeep Aggarwal, Ajay Aggarwal and Parvesh Kumar Aggarwal. According to this agreement, the dispute of all accounts pertaining to the property/assets/liabilities of the Guest House and other related matters has been settled amongst the four brothers sons of late Shri S.C. Aggarwal. The relevant part of the agreement is a follows:
"This is the final and full settlement amongst the brothers and hereinafter 17.4.1998, no right shall be there on each other's property/assets.
At present, two Guest Houses are being run by four brothers (Kothi No. 502 and
537). In future, 502 Guest House will be run by S/Shri Pardeep and Ajay Aggarwal and Guest House at 537 will be run by S/Shri Naresh and Parvesh Aggarwal. The responsibility of running these Guest Houses will be of the respective owners as placed above and execute an Affidavit in favour of each other stating the above stated responsibilities."
7. According to the learned S.r counsel, this Clause makes it abundantly clear that the demised premises has been handed over by respondent No. 3 to respondents No. 1 and 2 after 17.4.1998. In the Special Power of Attorney executed by the respondent No. 3 in favour of respondent No. 1 and 2, it is stated that he is the tenant in the demised premises and is running the Victoria Tourist Lodge therein. The two brothers- respondents No. l and 2 have been given the Special power of Attorney to fight the litigation. Thereafter, respondent No. 3 had also made an affidavit in which it is stated as follows:-
"1. That I have given the charge of Victoria Tourist Lodge, 502, Sector 18-B, Chandigarh to my brother Shri Ajay Aggarwal and Pardeep Aggarwal, on dated 18.4.1998. 2. That from 18.4.1998, my above said brother will be responsible for the said Victoria Tourist Lodge and before 18.4.1998, I will be fully responsible for all consequence, in respect of the said tourist lodge."
8. According to learned Sr. counsel these three documents make it absolutely clear that respondents No. l and 2 had never claimed to be tenants of the petitioner. To sum up Mr. Jain has submitted that the trial court had rightly dismissed the Objection Petition. The order of the ejectment was executable. The Objectors has no locus standi to file the Objection petition. At no state, the Objectors were tenants of the petitioner. All along the tenants had been Gurdial Singh Virk who was proceeded ex-parte. Therefore, the eviction Order dated 25.7.1998 which is based on admissions of respondent No. 3 is binding on him also. Gurdial Singh Virk has not taken any proceedings to challenge the aforesaid Eviction Order. The Eviction Order is executable under Order 21 Rule 35 of the Code. The Objectors claim to be representatives of the respondent No. 3. The possession was given during the pendency of the litigation. Therefore, the alleged transaction of delivery of possession is hit by Section 52 of the Transfer of Property Act. No plea of tenancy was ever raised in any of the pleadings. Only an oral statement has been made by respondent No. 1-Pardeep Aggarwal whilst giving evidence in Court. According to the learned Sr. counsel since there are no pleadings on the point, the oral statement had to be ignored. Since the tenancy is a bilateral agreement, the same had to be proved by the Objectors by leading independent evidence. There is no evidence on record to show that respondents No. 1 and 2 had become tenants of the petitioner at any stage. It is farther submitted that although in the Objection Petition, it has been pleaded that respondent No. 3 has colluded with the petitioner for the grant of an order of ejectment on the compromise, yet no foundation for the same has been laid. These allegations, according to the learned Sr. Counsel, are liable to be ignored.
9. Mr. Vinay Mittal, learned Sr. counsel appearing for the respondents submitted that the original tenant-Gurdial Singh Virk has illegally or unlawfully sublet the premises to respondent No. 3 Therefore, there is no relationship of landlord and tenant between the petitioner and respondent No. 3. Consequently, the Rent Controller had no jurisdiction to entertain the ejectment petition which was decided by way of the compromise order dated 25.7.1998. It was further submitted that no compromise could have been made between the petitioner and respondent No. 3. The compromise, if any, can only be effected between petitioner and respondent No. 4. Consequently, it is clearly proved that respondent No. 3 has colluded with the petitioner to obtain a compromise order of ejectment. In fact, in the eviction Petition, it is categorically stated that respondent No. 4 had illegally sublet the demised premises to respondent No. 3. Furthermore, on the first date of hearing in the court of the Rent Controller on 29.5.1996, the rent was tendered by respondent No. 3. This was accepted by the petitioner under protest on the ground that respondent No. 4 had unlawfully sublet the premises to respondent No. 3. It clearly shows that respondent No. 3 was never accepted as sub-tenant. If that is so, then the whole proceeding before the Rent Controller was not maintainable as there is no relationship of landlord and tenant between the petitioner and respondent No. 3. With regard to the Objection Petition having been filed under Section 47 and Order 21 Rule 29 of the Code, Mr. Mittal submits that mentioning of the wrong provisions is of no consequence. Wrong leveling of the Objection Petition will not defeat the claim of the Objectors. The objections when seen in substance, would clearly mean that the same had been filed under Order 21 Rule 97 of the Code. Learned Sr. counsel further submitted that the decree being nullity could be challenged in the execution proceedings. The Executing Court has the jurisdiction to decide all the question pertaining to the controversy. He further submitted that Objectors not being judgment debtors could not be proceeded against in the execution proceedings. It is submitted that even a person who is illegally in possession of the demised property can file Objection Petition when execution proceedings are pending. The learned Sr. Counsel further submitted that since Naresh Kumar Aggarwal, respondent No. 3 did not appear in the witness box in support of the compromise, the same could not have been admitted into evidence.
10. In the rejoinder, Mr. Jain submitted that respondent No. 3 has taken the plea that in the compromise deed dated 25.7.1998, respondent No. 3 claims to be a direct tenant of the petitioner. The entire claim put forward by the petitioner with regard to personal necessity was also admitted. It was stated that respondent No. 3 has no objection, if an order of eviction is passed from the house in question on the ground of personal requirement of the petitioner and material impairment of value and utility of the house. He has only sought 15 days time to vacate and hand over the vacant possession of the house. It is further submitted that respondents No. t and 2 cannot claim to be tenant merely because they have been put in possession illegally by respondent No. 3. The learned Sr. counsel further submitted that these Objectors knew about the pending litigation, but made no efforts to get themselves impleaded as parties. This clearly shows that they were handed over possession merely to defeat the ejectment petition.
11. I have carefully considered the submissions made by the learned Sr. Counsel for the parties.
12. A perusal of the order passed by the Executing Court shows that the Executing Court was aware of all these facts as has been narrated above. It has been noticed that respondents No. 1 and 2 had been put in possession of the house on the basis of the agreement entered into between the four brothers on 17.4.1998. Admittedly, the peti-
tioner was not involved at all with the family arrangement of the four brothers. Therefore, no tenancy right could have been created in favour of respondents No. 1 and 2. The Executing Court has noticed that by virtue of the agreement dated 17.4.1998, the possession of the demised premises has been handed over to respondents No. 1 and 2 by respondent No. 3. However, there is no pleading to the effect that respondents No. 1 and 2 were ever the tenants of the petitioner. Respondent No. 3 has himself admitted in the Special Power of Attorney dated 4.4.1998 that he is a tenant of the demised premises. He has also admitted that he is running Victoria Tourist Lodge at these premises. Thus it is evident that respondents No. 1 and 2 are rank trespassers on the demised premises. After assessing the entire evidence, even the Executing Court has come to the conclusion that the nature of the possession of the objectors over H. No. 502 Sector 18-B, Chandigarh is not established. Since the petitioner was not a party to the agreement dated 17.4.1998, the respondents No. 1 and 2, Objectors could not become the tenants under the petitioner-decree-holder without his consent. It is held that tenancy is always created through a contract, although the contract may be oral or in writing. It has been held that since respondents No. 1 and 2 occupied the premises, without the consent of the petitioner and in connivance with respondent No. 3, they are nothing but trespassers. The Executing Court further notices that these respondents had also taken the plea of partnership which was mentioned earlier. There was no mention of partnership deed in the written statement or in the pleadings. After assessing the entire evidence, the Executing Court has held that the agreement dated 17.4.1998 is a sham transaction i.e. the adoption of strategy on the part of the Objectors to obstruct the execution proceedings. It has been further held that the ejectment order dated 25.7.1998 has been passed on the basis of the statement given by Rajesh Kumar, Special Power of Attorney of respondent No. 3. This Special Power of Attorney has been proved on the record. It was neither cancelled nor revoked by respondent No. 3 prior to 25.7.1998. Thus, the ejectment order has been passed on the basis of the admissions made by respondent No. 3. In my opinion, it has been rightly held that the Objecters are not tenants under the petitioner. They have no locus standi to challenge the consent decree dated 25.7.1998. It is a settled proposition of law that consent decree can be challenged only on the ground of fraud or misrepresentation. I am of the considered opinion that respondents have miserably failed to place on record any evidence to prove that the consent decree has been obtained by way of fraud of misrepresentation. The Executing court has also noticed the submission that even a third person claiming to be in possession and claiming title in his own right, can file objection under Order 21 Rule 97 of the Code. However, in the present case, it was nowhere the case of the Objectors that they are tenants under the petitioners. In fact they have all along claimed to be representatives of respondent No. 3. They have claimed to come into possession of the demised premises on the basis of the agreement executed between the brothers on 17.4.1998. Their plea that they are independently entitled to object as they are in possession, cannot be accepted as, in my opinion, the same is taken in collusion with respondent No. 3. They have not come to court with clean hands. No relief can possibly be granted to the respondents, who are only colluding with each other, but have tried to mislead the courts by suppressio veri suggestio falsi.
13. I am of the considered opinion that the lower appellate Court has erred in law in revising the well-reasoned findings of the Executing Court. There is no material on the record to hold that the Objection Petition can be said to be filed under Order 21 Rule 97 of the Code. All along, the case of respondents No. 1 and 2 has been that they have come into possession of the demised premises, on the basis of the family arrangement dated 17.4.1998. Therefore, by no stretch of imagination, it can be said that respondents No. 1 and 2 had come into possession in their independent rights. It has been accepted by the learned Sr. counsel for the respondents that the objection petition would not be maintainable under Section 47 and Order 21, Rule 29 of the CPC. The learned lower appellate court has wrongly interfered with the findings recorded by trial court. The appel iate court has examined the consent decree as if it was a decree on merits. The Rent Controller has passed the decree on admissions made by respondent No. 3. Therefore, the appellate Court adopted an erroneous approach in examining the merits of the ejectment decree. These could have been open to question only in case of established fraud or misrepresentation, The respondents had similarly failed to plead anywhere as to in what capacity they had come into possession of the demised premises. There was in fact no evidence to show that the respondents had any locus standi to file the Objection Petition.
14. Consequently, the Revision Petition is allowed. Judgment passed by the learned Additional District Judge, Chandigarh in Misc. Civil Appeal No. 48 of 17.8.1999 de cided on 19.8.1999 is hereby set aside and the Order dated 11.8.1999 passed by Civil Judge (Jr. Division.), Chandigarh on 11.8.1999 is restored. The Executing Court is now directed to forthwith execute the order dated 25.7.1998 passed by the Rent Controller, Chandigarh. No costs.