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2004 DIGILAW 1 (PNJ)

Hukam Chand And Anr. v. Savinder Singh

2004-01-04

V.K.BALI

body2004
Judgment V.K.Bali, J. 1. By this common order, I propose to dispose of two connected matters, namely, Civil Revision No.926 of 1987 and Regular Second Appeal No. 2356 of 1998. C.R. No. 926 of 1987Before I might proceed to dictate the order in this case, I would like to mention that Mr. A.K. Kanwar, Advocate who represents the respondent-tenant was not present on 8.10.2003 when following order was passed;- "Counsel for the respondent is not available. In the interest of justice however, this matter is adjourned to 15.10.2003." When the matter, however, came up for hearing on 29.10.2003 following order was passed;- "Counsel for the respondent was not available when this matter came up for hearing on October 8, 2003. In the interest of justice the case was adjourned to 15.10.2003." No one appears even today on behalf of the respondent. Presence of Mr. A.K. Kanwar, Advocate has been recorded in order dated December 8, 2000. In the interest of justice, I defer the order for today. List the matter for hearing on 12.11.2003 under intimation to Mr. A.K. Kanwar, Advocate for the respondent. It is made clear that no further adjournment shall be granted." When the matter came up for hearing on 12.11.2003, following order was passed:- Letter to Sh. A.K. Kanwar., Advocate was issued but has not been received back. List on 3.12.2003. Office will certainly intimate the date of hearing to Sh. A.K. Kanwar, Advocate." 2 Office note dated 6.12.2003 shows that letter was sent to Mr. A.K. Kanwar, Advocate and he was informed of the date fixed. Despite all indulgence given to learned counsel for the respondent, who was otherwise not supposed to be written any letter for intimation of the date of hearing and was supposed to appear inasmuch as the matter had been shown on number of occasions in the cause list, all attempts made by the Court to secure his presence have proved abortive. The Court is, thus, left with no choice but for to proceed with the matter in absence of counsel for the respondent. 3. This revision has been filed by Hukam Chand, landowner of the demised premises, who sought eviction of the respondent-tenant on the ground of non-payment of rent. It has been the case of the petitioner that Savinder Singh, respondent herein was inducted as a tenant in the demised premises at the rate of Rs. 3. This revision has been filed by Hukam Chand, landowner of the demised premises, who sought eviction of the respondent-tenant on the ground of non-payment of rent. It has been the case of the petitioner that Savinder Singh, respondent herein was inducted as a tenant in the demised premises at the rate of Rs. 150/- per month and the tenancy was created three years prior to the institution of the application and further that no rent had been paid by Savinder Singh since March, 1981. The application was contested by Savinder Singh, who tendered the rent on the first date of hearing at the rate of Rs. 80/- per month for four months and asserted that the remaining amounts had already been paid. He also took a plea that the application for eviction had not been filed by a proper person and that no relationship of landlord and tenant existed between him and Hukam Chand, the petitioner herein, as the demised premises had been let out by Avtar Singh Bhalla, who had now filed the application as attorney of Hukam Chand. On the pleadings of the parties, learned Rent Controller framed the following issues;- "1. Whether the respondent is in arrears of rent and whether the tender made by him is illegal and short? OPA. 2. Whether there is relationship of landlord and tenant between the parties? OPA 3. Whether the application is properly instituted by the competent person? OPA. 4. Relief." 4. Issue with regard to non-payment of rent was decided in favour of the petitioner and, thus, learned Rent Controller issued an order of eviction dated 19.8.1985. Aggrieved Savinder Singh filed appeal, which has since been allowed by upholding the findings with regard to non-payment of rent but reversing the issue with regard to relationship of landlord and tenant. Learned Rent Controller on the issue aforesaid observed as follows:- "So far as this issue is concerned the respondent has only appeared as RW1 and denied that he is a tenant under Hukam Chand. He, however, asserted that he is a tenant under Shri Avtar Singh Bhalla. On the other hand, the applicant has examined AW2 Gurbachan Singh and AW3 Avtar Singh Bhalla, who is the general attorney of Hukam Chand. He, however, asserted that he is a tenant under Shri Avtar Singh Bhalla. On the other hand, the applicant has examined AW2 Gurbachan Singh and AW3 Avtar Singh Bhalla, who is the general attorney of Hukam Chand. AW2 Gurbachan Singh has stated in the cross examination that this house was originally the ownership of Housing Board, but it has been allotted to Hukam Chand on payment of instalments. A W3 Avtar Singh Bhalla has stated that he is the general attorney of the applicant Hukam Chand and he stated in the cross examination that he had rented out the house to the respondent as general attorney of Hukam Chand, while he himself has got no concern with the house. He has provided the mukhtiarnama as Ex.AW3/1. I have considered this evidence on the file and perused the general power of attorney. A perusal of power of attorney revealed that Hukam Chand took this house in dispute from Housing Board under an agreement to purchase it in instalments. The applicant has further authorised Shri Avtar Singh Bhalla to take possession from the Housing Board and further to manage it in all respects including giving the premises on rent and to receive rent and further to file litigations etc. or to defend the suits etc. on his behalf. This power of attorney is duly registered one and is supported by the statements of Avtar Singh Bhalla and Gurbachan Singh. The house in question was rented out by Avtar Singh Bhalla to Swinder Singh respondent, as Mukhtarnama of Hukam Chand and he has stated so in his statement as AW3. In such circumstances, the real landlord will be the applicant Hukam Chand, on whose behalf, the general attorney Shri Avtar Singh Bhalla has rented out the house to the respondent. The house in question was rented out by Avtar Singh Bhalla to Swinder Singh respondent, as Mukhtarnama of Hukam Chand and he has stated so in his statement as AW3. In such circumstances, the real landlord will be the applicant Hukam Chand, on whose behalf, the general attorney Shri Avtar Singh Bhalla has rented out the house to the respondent. In this regard, the law as laid down is (1980)82 P.L.R. 363 Smt. Ram Piari v. Delhi Fruit Company and Ors., (P&H) is referred to in which it has been held as under;- Whenever an application for ejectment of the tenant is filed under Section 13 of the Act, it will not be the person who inducted the tenant and was thus entitled to receive rent in respect of the rented out premises but rather the owner of the property will be the landlord for the purpose of the Act because he is the person, who is entitled to receive the rent for the time though somebody on this behalf is receiving the same." 5. Learned Appellant Authority reversed the finding of learned Rent Controller as reproduced above, by observing thus:- "When the parties in the present went to trial the clear stand of the appellant was that at no point of time respondent Hukam Chand had rented out the premises in dispute to him, Avtar Singh Bhalla had filed the ejectment petition on behalf of Hukam Chand and in the evidence which has been brought on the record it is clear that at no point of time Hukam Chand had entered into any negotiations with the appellant. In view of the peculiar stand which has been taken by" the appellant it became necessary for the respondent to have proved the factum of ownership of the demised premises for otherwise according to the evidence brought on the record the relationship of landlord and tenant existed only between the appellant and Avtar Singh and not between the appellant and Hukam Chand. To prove the fact that Hukam Chand was in fact the owner of the disputed premises, there is no material forthcoming, for even according to the respondent Hukam Chand is merely an allottee of the premises which still belong to the Housing Board. To prove the fact that Hukam Chand was in fact the owner of the disputed premises, there is no material forthcoming, for even according to the respondent Hukam Chand is merely an allottee of the premises which still belong to the Housing Board. Even the allotment letter has not been brought on the file for that by itself may have been able to satisfy the court that in fact it was Hukam Chand who was the person on whose behalf the property was let out by Avtar Singh Bhalla. An assessment made by the Municipal Corporation, Amritsar was brought on the record as Ex.AX but in that in the column pertaining to name and address of the owner, two names appear. First is the name Bhalla Seth and thereunder is the name of Hukam Chand son of Kishan Singh. This document which might have been of some use for ascertaining the ownership of the disputed property too would be of little assistance for the court coming to a conclusive , finding regarding the ownership of the same and for want of adequate evidence, I have no option but to come to the conclusion that the finding of the Rent Controller in relation to issue No. 2 has got to be reversed and it has got to be found that there is no adequate evidence on the record to show that Hukam Chand is the owner of the disputed premises. Ex.AW3/1, the power of attorney executed by Hukam Chand in favour of Avtar Singh Bhalla does not in any way advance the case of the respondent." 6. After hearing learned counsel representing the petitioner and examining the records of the case, I have no hesitation whatsoever in reversing the finding recorded by learned Appellate Authority on the issue of relationship of landlord and tenant between the parties. As per the version of the respondent-tenant, Avtar Singh Bhalla was not the owner whereas he was an attorney of Hukam Chand as is duly proved from Power of Attorney, Ex. AW3/1. Avtar Singh Bhalla, who himself appeared as AW3, stated that he was the General Attorney of applicant Hukam Chand and further that he had rented out the house to the respondent as general attorney of Hukam Chand, while he himself had got no concern with the house. AW3/1. Avtar Singh Bhalla, who himself appeared as AW3, stated that he was the General Attorney of applicant Hukam Chand and further that he had rented out the house to the respondent as general attorney of Hukam Chand, while he himself had got no concern with the house. There was no scope whatsoever, in the facts and circumstances of the present case and in view of the statement made by Avtar Singh Bhalla to hold that there was no relationship of landlord and tenant between the parties. That apart, once Avtar Singh, Bhalla had himself stated that he was not the owner and was only acting as an attorney of the applicant, there was no question to hold that Avtar Singh Bhalla was the landlord as no person would like to divest himself of the title of his property and confer his right upon some body else. Further, it has been proved on record that the Housing Board was the owner of the house in dispute and had allotted the same to Hukam Chand. It is rather strange that learned Appellate Authority has observed "there, were no material forthcoming that Hukam Chand was the owner of the property in dispute as he was only an allottee of the premises which still belongs to the Housing Board." Assuming that there was no record brought to show that the house was allotted to Hukam Chand by the Housing Board, the mere statement made by Avtar Singh Bhalla to that effect, in any case, would have shifted the onus upon the tenant to prove to the contrary. Be that as it may, when it was the case of the respondent-tenant himself that Avtar Singh Bhalla was not the owner of the property in dispute and Avtar Singh Bhalla himself had stated that he was not the owner and, in fact, the owner of the same was Hukam Chand and in support of his stand had produced on record the power of attorney from Hukam Chand, no occasion at all had arisen for learned Appellate Authority to reverse the finding of learned Rent Controller. Looked from any angle, issue pertaining to relationship of landlord and tenant between the parties had to turn in favour of the petitioner-landlord and the being so, finding to the contrary returned by learned Appellate Authority has to be reversed. Looked from any angle, issue pertaining to relationship of landlord and tenant between the parties had to turn in favour of the petitioner-landlord and the being so, finding to the contrary returned by learned Appellate Authority has to be reversed. Resultantly, this revision petition is allowed and order of learned Rent Controller is restored. 7. Before I may part with this order, I would like to mention that Civil Misc. Application No. 3304-CII of 2000 was filed under Order 22 Rule 10 read with Sections 141 and 151 of Code of Civil Procedure praying for impleading Paramjit Kaur as petitioner in place of Hukam Chand in the present revision petition as she is stated to have purchased the property in dispute during the pendency of this petition vide sale deed dated 1.3.1989. Vide order dated 8.12.2000, said Misc. Application was allowed and applicant Paramjit Kaur was made co-petitioner with Hukam Chand in the main Civil Revision No.926 of 1987. This order was passed in presence of Mr. A.K. Kanwar, counsel for the respondent. R.S.A. No. 2356 of 1998 Paramjit Kaur Bhalla, who was impleaded as co-petitioner in Civil Revision No.926 of 1987, filed a civil suit for recovery pertaining to the rent that became due to her after she had purchased the property, subject matter of dispute in Civil Revision No.926 of 1987. Even though, it was held by the Courts below that rate of rent of the demised premises was Rs. 150/- per month and the tenant had not paid the rent, the suit as such was dismissed because in the rent proceedings culminating into filing of Civil Revision aforesaid, it was held that there was no relationship of landlord and tenant, namely, Hukam Chand and Savinder Singh. Inasmuch as, the property had since been sold by Hukam Chand to Paramjit Kaur Bhalla, as long as the findings returned by learned Appellate Authority held the field, the obvious result was dismissal of the suit filed by Paramjit Kaur Bhalla. Same would be true also when civil revision is allowed and it is held that there was, indeed, a relationship between Hukam Chand and Savinder Singh. The very consequence of setting aside of the finding pertaining to relationship of landlord and tenant between the parties in the civil revision, would result into reversing the findings with regard to relationship in the present Regular Second Appeal. The very consequence of setting aside of the finding pertaining to relationship of landlord and tenant between the parties in the civil revision, would result into reversing the findings with regard to relationship in the present Regular Second Appeal. Resultantly, judgment and decree passed by learned trial Court is confirmed and that of learned Appellate Authority is reversed. Suit of the plaintiff is decreed, leaving, however, the parties to bear their own costs.