Punjab-Haryana High Court
(O&M;) Mahavir Sewa Samiti vs Kasturi Lal on 17 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.09.25 09:48
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.1778 of 2006 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.1778 of 2006
Date of decision:17.09.2014
Mahavir Sewa Samiti ...Petitioner
Versus
Kasturi Lal and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. A.K.Jain, Advocate,
for the petitioner.
Mr. P.S.Rana, Advocate,
for the respondents.
*****
RAKESH KUMAR JAIN, J.
The petitioner has challenged order dated 14.01.2004 passed by the District Judge, Kurukshetra, reversing the order passed by the Trial Court on 10.09.2003.
The brief facts of the case are that one Krishan Lal (since deceased) was the tenant of the petitioner. There was a litigation between the parties regarding ejectment on the ground of non-payment of arrears of rent etc. In order to settle the dispute, one Ashok Kumar Sabharwal was appointed as an Arbitrator vide order dated 14.01.1994. The Arbitrator gave his award on 01.03.1994 which was sought to be made rule of the Court. The petitioner filed objection against the award on the ground of want of jurisdiction, mis-conduct and failure to give opportunity. It was also alleged that the award had become infructuous because of execution of rent note dated 10.07.1994 executed by Kasturi lal S/o Krishan Lal in VINOD KUMAR 2014.09.25 09:48 I attest to the accuracy and authenticity of this document Chandigarh CR No.1778 of 2006 [2] ***** favour of the petitioner. In reply to the execution, it was alleged by respondent no.1 that the award has rightly been made by the Arbitrator in the presence of the parties and, therefore, a rent note dated 10.07.1994 was executed.
On the pleadings of the parties, following issues were framed by the Trial Court:-
"1. Whether the award is without jurisdiction as arbitrator gave the award beyond terms of reference? OPD.
2. Whether arbitrator misconducted proceedings and attached a wrong site plan which was not existing?OPO.
3. Whether award is time barred?OPO.
4. Whether the objector is estopped by its own act and conduct from filing this petition?OPR.
5. Whether objection petition is not maintainable in present form?OPR.
6. Whether the objections are barred under section 32 of Arbitration Act?OPR.
7. Relief."
After appreciation of evidence led by both the parties, the Trial Court dismissed the application filed by the respondents for making the award, rule of the Court and hence, the appeal was filed. The Appellate Court, however, allowed the appeal, the application filed by the respondents VINOD KUMAR 2014.09.25 09:48 I attest to the accuracy and authenticity of this document Chandigarh CR No.1778 of 2006 [3] ***** herein under Sections 14 and 17 of the Arbitration Act, 1940 was accepted and the award dated 01.03.1994 (Ex.A1) was made rule of the Court with minor modification in the measurement of the plot, i.e. measurement mentioned as 27'4" x 27'4" in the award was modified to be 29' each on East and West, 27'4" on North and 21' in South. The decree was accordingly passed in terms of the award Ex.A1 with the aforesaid minor modification.
Aggrieved against the above order of the Appellate Court, the present revision petition has been preferred.
Counsel for the petitioner has argued that in view of the judgment of the Supreme Court in the case of Natraj Studios (P) Ltd. v. Navrang Studios and another, (1981) 1 Supreme Court Cases 523, the jurisdiction was of the Rent Controller and not of the Arbitrator to decide the lis between the parties.
On the other hand, learned counsel for the respondents has argued that the jurisdiction of the Rent Controller would be in a case where the ejectment application is to be decided, but the other disputes can be referred to the Arbitrator and in the present case also, the matter was not before the Rent Controller for ejectment when the Arbitrator passed the award settling the disputes between the parties on certain terms and conditions. He further argued that the decision of the Supreme Court in Natraj Studios (P) Ltd.'s case (supra) is not at all applicable to the facts and circumstances of the present case.
After hearing learned counsel for the parties and examined the record, I am of the considered opinion that there is no merit in the present VINOD KUMAR 2014.09.25 09:48 I attest to the accuracy and authenticity of this document Chandigarh CR No.1778 of 2006 [4] ***** revision petition. In Natraj Studios (P) Ltd.'s case (supra), the following observations have been made by the Supreme Court:-
"A person claiming to be a landlord may sue his alleged tenant for possession of a building on grounds specified in the Rent Act. Such a suit will have to be brought in the Court of Small Causes, which has been made the Court of exclusive jurisdiction. In such a suit, the defendant may deny the tenancy but the denial by the defendant will not oust the jurisdiction of Court of Small Causes. If ultimately the court finds that the defendant is not a tenant the suit will fail for that reason. If the suit is instituted in the ordinary Civil Court instead of the Court of Small Causes the plaint will have to be returned irrespective of the plea of the defendant. Conversely a person claiming to be the owner of a building and alleging the defendant to be a trespasser will have to institute the suit, on the plaint allegations, in the ordinary Civil Court only. In such a suit the defendant may raise the plea that he is a tenant and not a trespasser. The defendant's plea will not straightway oust the jurisdiction of the ordinary Civil Court but if ultimately the plea of the defendant is accepted the suit must fail on that ground. So the question whether there is relationship of landlord and tenant between the parties or such other VINOD KUMAR 2014.09.25 09:48 I attest to the accuracy and authenticity of this document Chandigarh CR No.1778 of 2006 [5] ***** jurisdictional questions may have to be determined by the court where it falls for determination - be it the Court of Small Causes or the ordinary Civil Court. If the jurisdictional question is decided in favour of the Court of exclusive jurisdiction the suit or proceeding before the ordinary Civil Court must cease to the extent its jurisdiction is ousted."
Insofar as the present case is concerned, the award has already been acted upon by both the parties by way of execution of the rent note dated 10.07.1994 and the petitioner is now estopped from challenging the validity of the said award. In this regard, reference could be made to the Supreme Court judgment in the case of Pooran Chand Nangia v. National Fertilizers Ltd., (2003) 8 Supreme Court Cases 245.
The argument raised by learned counsel for the petitioner that the award has been further changed by virtue of the rent note and cannot be made a part of the record, cannot be accepted because the award itself has been modified by the Appellate Court at the time when it was made rule of the Court and modification was only with regard to the boundaries.
In view thereof, I do not find any merit in the present revision petition and hence, the same is hereby dismissed.
September 17, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE