Punjab-Haryana High Court
Harbhajan Singh vs Balwant Singh on 17 May, 1996
Equivalent citations: (1996)114PLR146, 1997 A I H C 653, (1996) 2 CIVILCOURTC 335, 1996 HRR 404, (1996) 114 PUN LR 146, (1996) 3 ICC 753, (1997) 1 CURLJ(CCR) 119
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. By this order Civil Revision Nos. 3584 of 1995 and 1778 of 1996 are being decided.
2. The facts of the case are that the landlord-petitioner filed an ejectment petition against the tenant-respondent on account of arrears of rent. He claimed rental arrears from October 1, 1986, to October 31,1987 at the rate of Rs. 100/- per month. The tenant disputed the rate rent and consequently the quantum of arrears also. According to the tenant, the rate of rent is Rs. 30/- per month and he is also not liable to pay the house-tax, but on being summoned the tenant-respondent deposited all the rental arrears as claimed by the landlord-petitioner with a view to a void eviction on that ground and in the written statement prayed that the petition be dismissed with costs and his counter claim for refund of the excess amount paid by him to the landlord-petitioner be allowed, who should be ordered to refund back the excess amount realised by him. On these pleadings the Rent Controller framed two issues:
(1) Whether the respondent is in arrears of rent w.e.f. 1.10.1986 to 31.10.87? OPP.
(2) Whether the respondent is liable to pay house-tax as alleged? OPP.
The rent petition was fixed for the petitioner's evidence on May 24, 1989, but on March 27, 1989, the landlord-petitioner filed an application seeking permission to withdraw the petition, which was allowed on that very day and the petition was dismissed alongwith the tenant-respondent's counter claim. When the tenant came to know about the dismissal of the rent petition, he filed a petition before the Rent Controller Praying that his counter claim should have been tried separately in case the landlord has withdrawn his eviction petition. On being noticed, the landlord-petitioner filed certain objections against that petition, but by the impugned order the tenant's petition was allowed and it was ordered that the counter claim would be decided on merits. These two identical separate orders were passed in connection with two Misc. Rent cases No. 4 and 5 of 1989.
3. Being aggrieved by the impugned orders, the landlord petitioner has filed these two revisions against the said orders.
4. Petitioner's learned counsel contended that in the written statement the tenant-respondent has not mentioned in the heading that it is a counter-claim also. He only described it as written statement. He has not paid Court-fee thereon. If it was a counter claim filed under Order 8 Rule 6-A or Order 8 Rule 6-G CPC, under Order 8 Rule 9 CPC the petitioner should have been ordered by the Rent Controller to file written statement, but no such order was passed. He further submits that no issue was framed about the rate of rent or about the excess payment of rent made by the tenant-respondent. His contention is that from all these facts it was evident that the tenant had abandoned his alleged counter claim. In this connection he also referred to Chapter I-E Rule 5 of Punjab & Haryana High Rules and Orders, Volume-I under which also Court-fee is required to be paid on the counter claim.
5. Tenant-respondent's learned counsel, relying on Bhim Sain v. Laxmi Narain, (1982)84 P.L.R. 50; Hari Shankar v. Smt. Kailasho Devi and Ors., (1986-1)89 P.L.R. 703 and Smt. Sewati Devi v. Tulsi Ram, (199-1)97 P.L.R. 210 contended that the tenant had filed a counter claim. If in the title of the written statement he has not specifically mentioned that it is a counter claim also, it will not make any difference because in the last para of the written statement (copy of which is filed by the petitioner) he has clearly mentioned that the respondent's counter claim for the refund of the excess rent paid by him to the petitioner be allowed and the petitioner be ordered to refund back the excess amount realised by him. If the Rent Controller has not framed any issue with regard to the rate of rent, which was disputed by the tenant being Rs. 30/- and not Rs. 100/- as alleged by the landlord, the Rent Controller fell into that error. Despite that the tenant prays that such an issue be framed. Even if issues framed by the Rent Controller were to be inquired into, he would have led evidence to prove the rate of rent and would have been able to prove his counter-claim that he has paid rent in excess and he is entitled for its refund, but the Rent Controller fell into an error in allowing the landlord's petition filed on March 27, 1989, for getting the rent petition dismissed without giving him notice of this petition and without affording him an opportunity to raise his contentions with regard to that petition. The date fixed was May 24, 1989. He contended that in the face of his plea raised in the written statement, an opportunity should have been given to him before permitting the landlord to withdraw his rent petition.
6. In the alternative, tenant-respondent's learned counsel contended that even if the written statement filed by the tenant is not considered as a counter claim, the Rent Controller was duty bound to consider it as a petition under Section 8 of the East Punjab Urban Rent Restriction Act, 1949, and decide the same. When the Rent controller was appraised of these facts, by passing the impugned order he gave that redress to the tenant and has taken up his counter-claim for deciding it on merits. He also submitted that since it was a rent petition, no ad valorem court-fee is required to be paid on the quantum of arrears of rent about which refund is claimed by the tenant.
7. In Hari Shankar's case (supra) a Division Bench of this Court has held that if the tenant has tendered excess amount of rent to the landlord, he can either file a civil suit for its recovery or he can file a counter claim under Order 8 Rules 6-A to 6-G CPC.
8. In Bhim Sain's case (supra) a Division Bench of this Court held;
"In availing the provisions of the Proviso to Section 13(2)(i) the tenant does not lose the right of claiming an issue on the quantum of rent and a decision thereon from the Rent Controller in the proceedings for eviction. Such right or claim in respect of the cause of action having accrued to him on and during the pendency of the eviction application, his defence laid in the written statement will have the effect of a close claim. In the altered general principles of law as embodied in Civil P.C. by amendment of 1976 even if the landlord does not want to continue with the petition for eviction or gets it stayed or dismissed, the counter claim can nevertheless be proceeded with as visualised under Order 8 Rule 6D.
9. The facts of Smt. Sewati Devi's case (supra) case are more or less identical with the facts of the present case. In that case also the tenant disputed the rate of rent but to save his eviction he deposited the rental arrears as claimed by the landlady. In the written statement he claimed refund of the access rent paid by him, but the landlady got her petition dismissed and thereby prevented the remedy available to the tenant to get a decision on the rate of rent per month. The Court held that if the Rent Controller has decided the issue framed in the case and the decision had gone in favour of the tenant, the tenant would have been entitled to refund of the excess rent paid by him, but the Rent Controller adopted a shortcut method of dismissing the eviction application for non-prosecution.
10. In this case, when the Rent Controller realised this mistake he passed the impugned order and permitted the tenant to get his counter claim decided as per law. Even under Section 8 of the East Punjab Urban Restriction Act, 1949, he is entitled to claim refund of excess amount paid on account of rent.
11. Thus, the Rent Controller legally fell into an error in allowing the petition filed by the landlord-petitioner on March 27, 1989, to get the rent petition dismissed for want of prosecution without issuing a notice to the tenant-respondent. It seems that on this date the Rent Controller was not alive to the averments made by the tenant in this written statement. Even the principles of natural justice and fair play required that notice of this petition should have been given to the tenant. Thus, in my considered view, the Rent Controller has not fallen into any error, much less a legal one, in passing the impugned order and giving an opportunity to the tenant-respondent to prove his counter claim. No infirmity is found in the impugned order.
Hence both the revisions, being meritless, are hereby dismissed with costs. Which are quantified at Rs. 1,000/- in each case.