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2003 DIGILAW 1415 (PNJ)

Bhagwan Singh v. Basant Cycle Stores

2003-10-15

G.S.SINGHVI

body2003
Judgment G.S.Singhvi, J. 1. This is a petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for short, the Act) for setting aside order dated 12.12.1979 passed by Rent Controller, Ludhiana and judgment dated 6.5.1981 rendered by Appellate Authority, Ludhiana in Miscellaneous Civil Appeal No. 61/16 of 1980. 2. The facts:- Petitioner-Bhagwan Singh filed an application before Rent Controller, Ludhiana under Section 13 of the Act for eviction of the respondents from Shop No. B.XVl-564/565 situated on Gill Road, Ludhiana on the ground of non-payment of rent since 1.1.1977 at the rate of Rs. 125/- per month and house tax at the rate of 15%. 3. On notice, the respondents filed reply in which they denied the title of the petitioner and pleaded that respondent No. 2-Nirmal Singh was in occupation of the shop in question as its owner. They also denied their liability to pay the rent and the house tax. They further pleaded that there is no agreement for payment of rent and house tax and no notice was served upon them for payment of house tax. 4. The petitioner filed replication to controvert the averments contained in the reply of the respondents. He replied on rent note dated 6.12.1963 executed by the respondents and pleaded that they cannot deny his title. He further pleaded that the respondents had been paying rent admitting him to be the landlord and, therefore, they were estopped from questioning his title. He also relied on the fact that ejectment applications dated 1.11.1976 and 10.1.1977 filed by him were got dismissed by the respondents by paying arrears of rent together with house tax. 5. The rent Controller framed the following issues:- (1) Whether there exists a relationship of landlord and tenant between the parties? OPP (2) Whether the respondent is liable to ejectment on the ground of non-payment of rent and house tax? OPA (3) Whether there was any necessity of serving notice under Section 106 of the Transfer of Property Act on the respondents? OPR (4) What is the effect of previous rent application having been disposed off? OPR (5) Relief. 6. After trial, the Rent Controller held that there existed relationship of landlord and tenant between the parties. OPA (3) Whether there was any necessity of serving notice under Section 106 of the Transfer of Property Act on the respondents? OPR (4) What is the effect of previous rent application having been disposed off? OPR (5) Relief. 6. After trial, the Rent Controller held that there existed relationship of landlord and tenant between the parties. However, he rejected the petitioners claim for house tax and held that the conduct of the tenant in tendering the arrears of rent together with house tax in the proceedings of the previous rent applications did not make them liable to pay the arrears of house tax. 7. In the appeal filed by him under Section 15(2) of the Act, the petitioner claimed that the finding recorded by the Rent Controller on the issue of the tenants liability to pay house tax was perverse, in-as-much as, the officer concerned had overlooked the evidence produced by him to show hat the tenants had been paying house tax. The respondents also filed appeal questioning the finding recorded by the Rent Controller on the issue of landlord tenant relationship. 8. The Appellate Authority upheld the findings recorded by the Rent Controller on both the issues and dismissed the appeals filed by the parties. 9. Shri Parmod Goya], learned counsel for the petitioner heavily relied on the statement (Exhibit A5) made by respondent No. 2-Nirmal Singh on 19.1.1977 in the proceedings of the previous eviction application and argued that after having voluntarily tendered the arrears of rent for the months of November and December, 1976 along with house tax of Rs. 37.50. The respondents were not entitled to dispute their liability to pay the house tax for the period from 1.1.1977 along with the arrears of rent. Shri Goyal pointed out that Nirmal Singh had made the statement dated 19.1.1977 without any constraint virtually admitting the liability of the respondents to pay the house tax and argued that the Rent Controller and the Appellate Authority gravely erred in holding that despite the payment of house tax in the earlier proceedings, the respondents were not under an obligation to pay the house tax for the period commencing from 1.1.1977. Shri Goyal submitted that in their written statement, the respondents had not even pleaded that the house tax had been paid in the earlier proceedings under coercion or under the mandate given by the Court and argued that the voluntary payment of the house tax for the earlier period should have been treated by the Rent Controller to be sufficient to establish the liability of the respondents to pay the house tax from 1.1.1977. 10. I have given serious thought to the arguments of the learned counsel and carefully perused the relevant record. 11. A perusal of the order dated by the Rent Controller shows that he declined to rely on statement Exhibit-A5 made by Nirmal Singh on 19.1.1977 by observing that he had paid the amount under protest. However, he did not consider the fact that while tendering the amount of rent and house tax in the context of the eviction application filed in 1976. Shri Nirmal Singh had not lodged any such protest. The Appellate Authority went a step ahead. It held that the tender of house tax in the previous proceedings was not voluntary and the respondents were coerced to do so because of the threat of eviction and that the previous ejectment applications could not be treated as notice for payment of house tax in terms of Section 9 of the Act. 12. In my opinion, the approach adopted by the Rent Controller and the Appellate Authority on the issue of the respondents liability to pay house tax is clearly erroneous. In ejectment application dated 1.11.1976 (Exhibit A3), the petitioner had unequivocally averred that the respondents were liable to pay house tax at the rate of 15% of the rental value. This, was not controverted by the respondents. Rather, they paid the arrears of rent along with house tax and got the application dismissed. In the second application filed on 11.1.1977 (Exhibit A4), the petitioner made a specific averment about the liability of the respondents to pay the arrears of rent together with house tax at the rate of 15% of the rental value. This time, Nirmal Singh tendered the amount of rent along with house tax under protest and got the ejectment application dismissed as infructuous. This time, Nirmal Singh tendered the amount of rent along with house tax under protest and got the ejectment application dismissed as infructuous. In my view, after having got the two previous applications dismissed as infructuous by tendering the arrears of rent together with house tax, the respondents were estopped from questioning their liability to pay the element of house tax for the period commencing from 1.1.1977 and the Rent Controller as well as the Appellate Authority gravely erred in holding that this act of the representative of the respondents was not voluntary. 13. In the premise aforesaid, the revision is allowed. However, keeping in view the law laid down by the Supreme Court in Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation (2002-2)131 P.L.R. 370 (S.C.) and Vinod Kumar v. Prem Lata, J.T. 2003(7) S.C. 574 interpreting Section 13(2)(1) of the Act. I deem it proper to remand the case to Rent Controller, Ludhiana so that the respondents may get an opportunity to pay the outstanding arrears of rent along with the house tax. Ordered accordingly. 14. The civil miscellaneous application filed by Harminder Singh son of Bhagwan Singh respondent of House No. B.XXI-205 or 4-R, Industrial Area-B, Ludhiana for his substitution as the petitioner is disposed of with the direction that he may file appropriate application before the Rent Controller for substitution as the applicant.