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2004 DIGILAW 148 (PNJ)

Raman Kumar v. Surjit Singh

2004-02-10

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The petitioner-tenant is aggrieved against the order of ejectment passed by the courts below on the ground that the petitioner is in arrears of rent and thus liable to be ejected. 2. The respondent has filed ejectment petition claiming that he is owner of Shop No. 8 situated in Village Dugri, Tehsil and District Ludhiana at a monthly rent of Rs. 1000/- per month which was let out in the month of April, 1992. The tenant has failed to make the payment of rent since 1.5.1994 therefore, he sought his ejectment. The tenant has alleged that his father Dharam Parkash is tenant in the shop in dispute at a monthly rent of Rs. 200/- which includes Rs. 20/- as electricity charges. He has further stated that his father has already tendered rent up to 31.5.1995. 3. In the written statement, the petitioner relied upon a memo of rent note executed by his father in favour of the landlord signed by landlord, father of the present petitioner and two witnesses namely Deepak and Sukhpal. 4. After recording of evidence of the parties, both the courts below have returned a concurrent finding of fact that the petitioner was inducted as a tenant at a monthly rent of Rs. 1000/-. However, since the rent has not been tendered, the petitioner is liable to be evicted. However, the courts have not recorded, a finding in respect of the date from which the petitioner is in arrears at the rate of Rs. 1000/- per month. 5. Learned counsel for the petitioner has vehemently argued that the landlord has denied the execution of any rent note in respect of the shop No. 1 let out to Joginder Singh in the year 1980. But, the evidence has been produced by the landlord to show that the premises were let out to Joginder Singh in the year 1980 at the rate of Rs. 500/- per month. It is thus sought to be contended that the landlord is not a truthful witness. It was also contended that the landlord has 8 shops and it is admitted by him that Harish Khushalini AW1 is the only tenant at the rate of Rs. 1000/- per month. In these circumstances it cannot be believed that the petitioner is another tenant paying monthly rent of Rs. 1000/-. It was also contended that the landlord has 8 shops and it is admitted by him that Harish Khushalini AW1 is the only tenant at the rate of Rs. 1000/- per month. In these circumstances it cannot be believed that the petitioner is another tenant paying monthly rent of Rs. 1000/-. The courts below have passed an order of ejectment on wholly erroneous grounds. 6. The landlord in support of his claim that the rate of rent is Rs. 1000/- per month has not only examined himself as a witness but also produced AW3 Amarjit Singh who has deposed that the petitioner was induced as a tenant in his presence at a monthly rent of Rs. 1000/- and a sum of Rs. 1000/- as rent for one month was paid in his presence. In addition to the statement of Amarjit Singh the landlord has produced AW1 Harish Khushalini who was inducted as a tenant in respect of shop No. 1 at the rate of Rs. 1000/-per month. It has come in evidence that shop No. 8 in the possession of the petitioner is bigger in size than the shop No. 4. The landlord has also produced AW2 Sukhdev Singh, an attesting witness of the rent note Ex.A2 wherein shop No. 8 was let out to Joginder Singh on 23.11.1990 at the rate of Rs. 500/- per month. 7. On the other hand, the petitioner has produced certain witnesses to depose that it was his father who was inducted as a tenant. The father of the petitioner appeared as RW4 and deposed that he has taken the shop from respondent Surjit Singh. Sukhpal Singh, the alleged attesting witness but has appeared as RW1 the memo of rent note as alleged in the written statement was not produced on the file. Admittedly, business of photography is being conducted in the shop in dispute, RW1 has admitted that Dharam-pal father of the petitioner does not know the work of photography. Dharampal appeared as RW4 and has stated that he is doing the business of commission agency in association of his second son Sunil Kumar under the name and style of Dharampal Sunil Kumar. RW3 Sunil Kumar has admitted that the petitioner is working as a photographer. Dharampal appeared as RW4 and has stated that he is doing the business of commission agency in association of his second son Sunil Kumar under the name and style of Dharampal Sunil Kumar. RW3 Sunil Kumar has admitted that the petitioner is working as a photographer. Thus on the basis of evidence adduced by both the parties a finding was recorded that the premises in dispute were let out at the rate of Rs. 1000/- per month as it is not believable that the premises can be let out ai a lesser rate than on what it was let out earlier. Such finding of fact has been affirmed in appeal as well. 8. The finding regarding, the rate of rent is based upon appreciation of evidence after taking into consideration the oral and documentary evidence produced by the parties. With the assistance of the learned counsel for the petitioner I have gone through the evidence as well. I do not find that fee view taken by the courts below is not supported by evidence on record. Mere fact that some other view could also taken, whether to believe the witnesses produced by the petitioner or that of the landlord will not entitle this court to reverse the finding of fact recorded by the courts below on the appreciation of evidence. 9. Thus, it is concluded that there is no illegality or irregularity in respect of the findings recorded by the courts below that the premises were let out to the petitioner at a monthly rent of Rs. 1000/-. Section 13(2)(i) of the Act cast an obligation on the Rent Controller to make an assessment of (i) arrears of rent, (ii) the interest on such arrears and (iii) the cost of the application and then quantify by way of interim or provisional order the amount which the tenant must tender on the first date of hearing. If the final adjudication by the controller is at variance with his interim or provisional order passed under the proviso, the rent controller may pass one of the two orders i.e. directing the tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount failing which alone he shall be liable to be evicted. If however, the amount paid by the tenant is excessive the controller shall pass an order directing the landlord to refund the amount. This was the view taken by the Honble Supreme Court in Rakesh Wadhawan and Ors. v. Jagdamba industrial Corporation and Ors., (2002-2)131 P.L.R. 370 (S.C.), wherein it was concluded to the following effect: 1) In Section 13(2)(i) proviso, the words assessed by the controller qualify not merely the words the cost of application but the entire preceding part of the sentence i.e. the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application. 2) The proviso-to Section 13(2)(i) of East Punjab Urban Restriction Act, 1949 casts an obligation on the Controller to make an assessment of : (i) arrears of rent, (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the first date of hearing after the passing of such order of assessment by the Controller so as to satisfy the requirement of the proviso. 3) Of necessity, the date of first hearing of the application would mean the date falling after the date of such order by Controller. 4) On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the Controller. 5) If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct a refund, If on the other hand, the amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order directing tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction. Compliance shall save him from eviction. 6) While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings." 10. Subsequently, a dispute arose whether the judgment of Rakesh Wadhawans case lays a binding precedent in view of the fact that the judgment of Honble Supreme Court rendered in Rubber House v. Excelsior Needle Industries Pvt. Ltd., (1989)2 S.C.C. 413 and Rajinder Kumar Joshi v. Veena Rani, 1990(4) S.C.C. 526 were not brought to the notice of the Court in Rakesh Wadhawans case. Honble Supreme Court in Vinod v. Prem Lata, in Review Petition (C) No. 436 of 2003 in Civil Appeal No. 8444 of 2002 D/d 19.8.2003 has considered the said two judments and held that M/s Rubber House and Rajinder Kumar Joshis cases do not place a correct interpretation upon the provisions of East Punjab Rent Restriction Act as well as para materia provisions contained in Haryana Urban (Control of Rent & Eviction) Act. 1973. It was so concluded as follows: "9. It is true that the decisions in M/s Rubber House (supra) and Rajinder Kumar Joshi (supra) were not brought to the notice of the Court deciding Rakesh Wadhawans case (supra) and it would have been better if that would have been done at the Bar. However, the present petition has given us the opportunity of examining afresh the merits of the three decisions under consideration in the Punjab Act and the Haryana Act insofar as the ground for eviction on account of default in payment or tendering the arrears of rent by the tenant is concerned. We are of the opinion that M/s Rubber Houses case and Rajinder Kumar Joshis case do not place a correct interpretation upon the provisions. The decision in Rakesh Wadhawans case correctly lays down the law and is re-affirmed. The interpretation placed by this Court in Rakesh Wadhwans case on Section 13(2)(i) with the proviso in the Punjab Act applies for interpreting Section 13(2)(i) and the proviso as contained in the Haryana Act. 11. The decision in Rakesh Wadhawans case correctly lays down the law and is re-affirmed. The interpretation placed by this Court in Rakesh Wadhwans case on Section 13(2)(i) with the proviso in the Punjab Act applies for interpreting Section 13(2)(i) and the proviso as contained in the Haryana Act. 11. In view of above the decision taken by the Rent Controller has not passed any interim order while assessing the arrears of rent, interest on such arrears and cost of application. However, on evidence, the Rent Controller has returned a finding that the monthly rent is Rs. 1000/-. In view of the judgment of the Honble Supreme Court referred to above, the Rent Controller is to pass conditional order directing the tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount failing which he alone shall be liable to be evicted. Therefore, the order of ejectment passed by the courts below is set aside with the direction to the Rent Controller to pass a conditional order in terms of the judgment of the Honble Supreme Court referred to above quantifying the arrears of rent, interest of such arrears and the cost of the application. The Rent Controller shall pass a conditional order granting time to the tenant to make the payment of the deficit amount. 12. Parties through their counsel are directed to appear before the trial Court on 8.3.2004.