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2003 DIGILAW 830 (PNJ)

Murari Lal v. Om Parkash

2003-05-28

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. Murari Lal, petitioner, now deceased (through his L.Rs.) has filed the instant revision petition against the order dated 18.8.1988 passed by the Additional District Judge, Narnaul (exercising the powers of the Appellate Authority) under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as `the Act) vide which the order dated 14.10.1987 passed by the Rent Controller was set aside and the claim of the petitioner for refund/adjustment of the excess rent, alleged to have been paid by the petitioner, was declined while holding that no excess rent was paid/tendered by the petitioner. 2. In the instant case, the respondents-landlords filed an ejectment application against the petitioner-tenant on the ground of non-payment of rent and on the ground that the demised premises has become unfit and unsafe for human habitation. Regarding rent, it was pleaded that the petitioner-tenant was in arrears of rent from 6.10.1981 to 5.6.1982 and the monthly rent of the demised premises was claimed as Rs. 45/- plus house tax. The petitioner- tenant contested the aforesaid ejectment application. On the first date of hearing, the petitioner-tenant tendered the rent as claimed by the respondents-landlords, i.e. at the rate of Rs. 45/- per month. Though he did not dispute the period of non-payment of rent yet he contested the rate of rent, which, according to him was Rs. 17/-, 14 annas and 9 paise per month, which was fixed as a fair rent in the year 1951. He also refuted the claim of the respondents-landlords that the building has become unsafe and unfit for human habitation. 3. On the pleadings of the parties, various issues were framed by the Rent Controller. On 21.12.1982, when the case was fixed for hearing, the counsel for the respondents-landlords made a statement that he had no instructions to proceed further with the case. Thereupon, the counsel for the petitioner pleaded that since a counter claim had been made in the written statement by the petitioner-tenant, therefore, the ejectment petition cannot be dismissed as not pressed, as the counter claim filed by the petitioner-tenant has to be adjudicated. Thereupon, the learned Rent Controller ordered that the counter claim filed by the petitioner-tenant be treated as a petition and notice of the same was ordered to be served upon the respondents-landlords. In support of his counter claim, the petitioner-tenant led some evidence. Thereupon, the learned Rent Controller ordered that the counter claim filed by the petitioner-tenant be treated as a petition and notice of the same was ordered to be served upon the respondents-landlords. In support of his counter claim, the petitioner-tenant led some evidence. Thereafter, the respondents-landlords were provided an opportunity to lead the evidence. However, their evidence was closed by order of the court. The learned Rent Controller vide his order dated 14.10.1987 allowed the counter claim filed by the petitioner-tenant while holding that the rate of rent of the demised premises was Rs. 17/-, 14 annas and 9 paise per month, and ordered that the excess amount of rent paid by the petitioner-tenant shall be adjusted towards the future rent payable by the tenant. 4. Feeling aggrieved against the aforesaid order, the respondents-landlords filed an appeal before the Appellate Authority along with an application for additional evidence. The application for additional evidence was allowed by the Appellate Authority and the respondents-landlords were permitted to place on record the certified copy of the petition filed by the respondents- landlords, i.e. petition No. 110 of 1981, titled `Om Parkash and others v. Murari Lal, certified copy of the statement of the Advocate of the petitioner-tenant in that ejectment application, and the certified copy of the order of the Rent Controller dated 19.12.1981 passed in that case. The learned Appellate Authority after going through the aforesaid documents has held that the rate of rent of the demised premises was Rs. 45/- per month and, therefore, the petitioner tenant did not tender any excess rent to the respondents-landlords. The said order has been impugned in the instant revision petition. 5. The learned counsel for the petitioner-tenant raised two contentions before this Court. Firstly, he submitted that no appeal was maintainable against the order dated 14.10.1987 passed by the Rent Controller vide which he had ordered to adjust the excess amount of rent towards the future rent. According to him, such order is deemed to have been passed under Section 7 of the Act, which is not appealable. Secondly, he submitted that the Appellate Authority has reversed the order of the Rent Controller about the rate of rent without properly appreciating the fact that the fair rent of the demised premises was fixed in the year 1951 as Rs. 17/-, 14 annas and 9 paise. 6. Secondly, he submitted that the Appellate Authority has reversed the order of the Rent Controller about the rate of rent without properly appreciating the fact that the fair rent of the demised premises was fixed in the year 1951 as Rs. 17/-, 14 annas and 9 paise. 6. After hearing the learned counsel for the parties and perusing the record of the case, I am of the opinion that there is no force in either of the contentions raised by the learned counsel for the petitioner. Admittedly, the petitioner-tenant did not file any fresh petition under Section 7 of the Act for claiming refund/adjustment of the excess rent. He set up a counter claim in his written statement to the ejectment application filed by the respondents-landlords. The said counter claim was ordered to be treated as a petition under Rule 6-D of Order 8 of the Code of Civil Procedure. Rule 6-D of Order 8 of the Code of civil Procedure reads as under :- "6-D. Effect of discontinuance of suit. - If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, and counter-claim may nevertheless be proceeded with." 7. From the bare reading of the aforesaid Rule, it is clear that a petition or a suit filed by the plaintiff is stayed, discontinued or dismissed, and counter claim may nevertheless be proceeded with. Thus, in view of the aforesaid Rule, when the counsel for the respondents-landlords made the statement that he had no instructions to proceed with the case, the learned Rent Controller allowed the petitioner-tenant to proceed with his counter claim. By this order, the same very petition filed by the respondents- landlords was proceeded with and the order was passed by the Rent Controller in the said petition titled `Om Parkash and another v. Murari Lal. No fresh issues were framed and only on the earlier issues, it was determined as to what is the rate of rent. In view of the aforesaid facts, I am unable to accept the contention of the petitioner-tenant that the counter claim decided by the Rent Controller should be deemed to have been filed under Section 7 of the Act. Therefore, it cannot be said at all that the appeal filed by the respondents-landlords against the order of Rent Controller dated 14.10.1987 was not maintainable. 8. Therefore, it cannot be said at all that the appeal filed by the respondents-landlords against the order of Rent Controller dated 14.10.1987 was not maintainable. 8. I also do not find any force in the second contention of the learned counsel for the petitioner. Undisputedly, the fair rent of the demised premises was fixed at Rs. 17/-, 14 annas and 9 paise by an order dated 7.11.1951 passed by the Rent Controller under the provisions of the East Punjab States Union Urban Rent Restriction Ordinance, 2006 B.K. After passing of the said order, the demised premises was purchased by the present respondents-landlords. Thereafter, according to the respondents-landlords, a fresh agreement was reached between the parties, according to which, the rate of rent of the demised premises was fixed at Rs. 45/- per month and the petitioner-tenant had been paying the rent to the respondents-landlords at the aforesaid rate of rent. On the previous occasion, the respondents-landlords filed an ejectment application on the ground of non-payment of rent at the rate of Rs. 45/- per month. In that ejectment application, the petitioner- tenant tendered the claimed rent at the rate of Rs. 45/- per month without raising any protest or without disputing the aforesaid rate of rent at Rs. 45/- per month. By keeping the aforesaid fact into consideration, the Appellate Authority has observed that now the petitioner-tenant is estopped from saying that the monthly rent of the demised premises was Rs. 17/-, 14 annas and 9 paise instead of Rs. 45/- per month. I do not find any infirmity or illegality in the aforesaid finding of the learned Appellate Authority. 9. In view of the aforesaid discussion, I find no merit in the revision petition and the same is hereby dismissed, with no order as to costs.