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2004 DIGILAW 236 (PNJ)

Rakesh Kumar v. Kasturi Lal Gupta

2004-02-26

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Article 227 of the Constitution read with Section 151 of the Code of Civil Procedure prays for setting aside order dated 3.2.2004 passed by the Civil Judge (Junior Division), Chandigarh, dismissing the application of the defendant petitioners, in which it was claimed that the suit of the plaintiff-respondents was liable to be dismissed. 2. Brief facts of the case are that the plaintiff-respondents filed a civil suit alleging that the tenancy of the tenant-petitioner has been terminated and they have claimed arrears of rent and damages. The suit was filed on account of notification dated 7.11.2002, which provides that the building where the municipal rent exceeds Rs. 1500/- p.m. would not attract the provisions of East Punjab Urban Rent Restriction Act (Extension to Chandigarh) Act, 1974 (for brevity the Rent Act). Before filing the suit, the plaintiff-respondents appears to have served a notice under Section 106 of the Transfer of Property Act, 1882. However, the tenant-petitioner has failed to accede the request made by the plaintiff-respondents in their notice issued under Section 106 of Transfer of Property Act, 1882 (for brevity the TPA). The plaintiff-respondents earlier filed a rent petition, which was withdrawn vide order dated 28.9.2003. In one rent petition No. 86 dated 16.10.2002 rent was assessed and the other rent petition No. 31 dated 13.9.2002 was finally decided on 21.7.2003. The tenant-petitioner filed an application during the pendency of the suit alleging that on the ground of non-payment of rent, the earlier rent petition filed against the tenant-petitioner would constitute a bar for filing of the suit as it is contested on the same cause of action. In the application, allegations were made that the plaintiff-respondents have made mis-representation to the Court by giving false statements that another rent petition based on similar cause of action between the parties was pending and that all the petitions stood withdrawn. It was further alleged that two remedies one under the General Law and the other under the Rent Act were not available and consequently prayer was made for dismissal of the suit. 3. The plaintiff-respondents filed reply opposing the application asserting that the suit filed by them is not based on the ground of non-payment of rent but it has been filed after terminating the tenancy and for recovery of arrears of rent and damages and no false statement has been made. 3. The plaintiff-respondents filed reply opposing the application asserting that the suit filed by them is not based on the ground of non-payment of rent but it has been filed after terminating the tenancy and for recovery of arrears of rent and damages and no false statement has been made. 4. After hearing the learned counsel for the parties, the Civil Judge dismissed the application by observing as under- "Plaintiff filed the present suit for ejectment of the defendants from the suit premises and for recovery of arrears of rent and damages/mense profits. From the copy of Rent Petitions filed by the plaintiff, it is evident that the said rent petitions were filed for eviction of the respondent on the ground of non payment of rent, whereas in the present suit, the eviction is being sought after termination of the tenancy of the defendants. Besides this, in the present suit, recovery of arrears of rent, damages and mense profits has also been claimed. Though, it was argued by learned counsel for the defendants that execution of order passed in one of the execution of order dated 21.7.2003 passed in rent application No. 31 has been filed by the plaintiff under the Rent Act, therefore, only one proceeding can continue, either under the Rent Act or under the General Law. But as has been discussed herein above, present suit is not suit for simple possession or ejectment, plaintiff is also seeking recovery of arrears of rent, damages/mense profits. The judgments including the judgment bearing citation A.I.R. 2001 S.C. 3580 (supra) relied upon by learned counsel for the defendants are not applicable to the facts and circumstances of the present case because in the said case during the pendency of the eviction proceeding under the Rent Act, suit for recovery of possession was filed by the landlord. But here, the present suit is not simple suit for possession, but it is also suit for recovery of arrears of rent/damages therefore, present suit cannot be dismissed on the basis of the application filed by the defendant applicant. In view of the aforesaid discussion, present application filed by the defendant/applicant is dismissed." 5. Mr. M.S. Jandiala, learned counsel for the tenant-petitioner has argued that in the suit filed by the plaintiff-respondents a specific prayer for the ejectment of the tenant-petitioner has been made along with the prayer for recovery of arrears of rent/damages. In view of the aforesaid discussion, present application filed by the defendant/applicant is dismissed." 5. Mr. M.S. Jandiala, learned counsel for the tenant-petitioner has argued that in the suit filed by the plaintiff-respondents a specific prayer for the ejectment of the tenant-petitioner has been made along with the prayer for recovery of arrears of rent/damages. According to the learned counsel, the plaintiff-respondents could continue only one remedy and both the remedies under the general law as well as under the Rent Act could be availed simultaneously by the plaintiff-respondents. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Company, A.I.R. 2001 S.C. 3580. 6. After hearing the learned counsel and perusing the impugned order, I am of the considered opinion that this petition is liable to be dismissed because no rent application is shown to be pending on the date when the civil suit was filed and nothing has been pointed out by the learned counsel to that effect. The notification dated 7.11.2002 exclude the applicability of the Rent Act to cases where the rate of rent of the premises is more than Rs. 1500/- pm. After the issuance of notification, the plaintiff-respondents appear to have issued notice under Section 106 of TPA terminating the tenancy and claiming possession along with arrears of rent. However, the request made by the plaintiff-respondents has not been acceded resulting into filing of the suit. The judgment of the Supreme Court in Ambalal Sarabhais case (supra) lays down that once the protection given under the Rent Act is withdrawn then the landlord and tenant are relegated to seek their rights and remedies under the common law. However, the request made by the plaintiff-respondents has not been acceded resulting into filing of the suit. The judgment of the Supreme Court in Ambalal Sarabhais case (supra) lays down that once the protection given under the Rent Act is withdrawn then the landlord and tenant are relegated to seek their rights and remedies under the common law. The views of their Lordships in this regard read as under:- "In view of the aforesaid findings we conclude, by recording our findings on the question posed earlier by holding: (1) A landlord or tenant are relegated to seek their rights and remedies under the common law once the protection given to tenant under the Rent Act is withdrawn, except in cases where Section 6 of the General Clauses Act, 1897 is applicable; (2) A ground of eviction based on illegal sub-letting under proviso (b) of Section 14 of the Rent Act would not constitute to be a vested right of a landlord, but it would be a right and privilege accrued within the meaning of Section 6(c) of the General Clauses Act in a matter if proceeding of eviction is pending; (3) When tenant has no vested right under a Rent Act having only protective right, withdrawal of such protection would not confer on a landlord a vested right to evict a tenant under Rent Act except where Sub-clause (c) of Section 6 of the General Clauses Act is applicable. In view of these findings we hold landlord has a right under the repealed Rent Act by virtue of Section 6(c) of the General Clauses Act, which would save the pending proceedings before the Rent Controller, which may continue to be proceeded with as if repealed Act is still in force." 7. According to the views of the Supreme Court only one exception is created namely where, provisions of Section 6 of the General Clauses Act, 1897 is applicable. Nothing has been shown that the case of the tenant-petitioner falls under Section 6 of the General Clauses Act. Therefore, I do not find any merit in this petition. 8. For the reasons recorded above, this petition fails and the same is dismissed.