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2005 DIGILAW 837 (PNJ)

Paramjit Singh Dhillon v. S. L. Khanna

2005-08-09

M.M.KUMAR

body2005
Judgment M.M.KUMAR, J. 1. This is plaintiffs second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brief the Code ) challenging concurrent findings of fact holding that the plaintiff-appellant was not entitled to the relief of permanent injunction against the defendant-respondents and the counter-claim made by the defendant-respondents, has been decreed by both the Courts below. 2. The plaintiff-appellant has been held to be a licensee of the premises in dispute for a limited period. Initially, the license was created from 2-1-1999 to 30-11-1999 giving permission to the plaintiff-appellant to use the demise premises on paymkent of 8630/- per month as license fee. On the request made by the plaintiff-appellant, defendant-respondents had further agreed to execute fresh license deed which was duly executed by plaintiff-appellant on 2-12-1999. The same also expired on 31-10-2000. The license deed was duly signed by the plaintiff-appellant and defendant-respondent No. 1. There were two attesting witnesses namely; Sarvshri Naval Kishore and Manmohan Kapoor (Exhibit D5). The rough sketch plan of the demise premises was also signed by the plaintiff-appellant and defendant-respodnent No. 1 along with aforementioned attesting witnesses which has been brought on record as exhibit D6. It was made clear in the license deed that the plaintiff-appellant was to use the demise premises for conducting classes of Electro Homeopathy College. After the expiry of license on 31-10-2000, no fresh license deed was granted by the defendant-respondent No. 1 in favour of the plaintiff-appellant. It has been found by the learned trial Court that the plaintiff-appellant has been illegally occupying the demise premises after the expiry of license and has not paid license fee from 1-11-2000 till the passing of the order. 3. When the legal notice was served upon the plaintiff-appellant on 22-12-2001 to vacate the demise premises, a false reply was sent by him taking various stand including the assertion that he was never inducted as a tenant at the rate of rupees 10,000/- per month nor defendant-respondent No. 1 ever parted with the possession of demise premises in favour of the plaintiff-appellant for a limited period. It was further claimed that plaintiff-appellant was inducted as a licensee over a part of the house which was earlier in occupation of defendant-respondent No. 1. It was further claimed that plaintiff-appellant was inducted as a licensee over a part of the house which was earlier in occupation of defendant-respondent No. 1. Same assertion was made with regard to electricity meter which was stated to be installed on the ground floor in the name of defendant-respondent No. 1 and on the first floor in the name of his wife. However, defendant-respondent has claimed that when he visited Jalandhar from Delhi, the plaintiff-appellant made an attempt to prevent him and his family members even from entering the demise premises and threatened them with dire consequences. The matter was reported to the police and an FIR at the instance of defendant-respondent No. 1 was registered at P. S. Division No. 6, Jalandhar. 4. After hearing the parties and analysing the evidence, the trial Court had reached at the conclusion that the defendant-respondent No. 1 has proved his counter-claim that the demise premises was given to the plaintiff-appellant as a licensee for a limited period and the license expired on 31-10-2000. It has furtheer been found that the plaintiff-appellant has failed to furnish any evidence to counter the claim of the defendant-respondent No. 1. No evidence was produced even in respect of payment of rent by the plaintiff-appellant to defendant-respondent No. 1. The rate of license fee has also been found to be rupees 8,360/- per month and after 31-10-2000, plaintiff-appellant has been held to be an illegal occupant of the demise premises. A mandatory injunction directing plaintiff-appellant to vacate the demise premises has been issued. It has further been directed that defendant-respondent No. 1 would be entitled to mesne profit from plaintiff-appellant at the rate of Rs. 10,000/- per month from 31-10-2000. 5. The view taken by the trial Court was subjected to appeal under Section 96 of the Code by the plaintiff-appellant. An application for ad interim injunction was dismissed. Against that order, plaintiff-appellant approached this Court. This Court on 14-3-2003 dismissed Civil Revision No. 6061 of 2002 filed by the plaintiff-appellant by passing the following order :- "After hearing learned counsel for the parties, it is ordered that the petitioner shall, pay usage charges of the premises Rs. 8360/- from March 2000 onwards. This amount shall be paid by the petitioner within a period of two months to the respondents. The respondent shall evict the petitioner from the premises in dispute only in accordance with law. 8360/- from March 2000 onwards. This amount shall be paid by the petitioner within a period of two months to the respondents. The respondent shall evict the petitioner from the premises in dispute only in accordance with law. The petitioner shall continue to pay the further charges for usage of the premises evey month" 6. It is thus obvious that the plaintiff-appellant was to pay usages charges of the demise premises at the rate of Rs. 8360/- per month from March 2000 onward. The amount was to be paid within a period of two months to the defendant-respondents. The defendant-respondents were to evict plaintiff-appellant from the demise premises in accordance with law and the usages charges were payable every month. 7. At one stage, evidence of the plaintiff-appellant was closed by order by the trial Court. That order was challenged by him in this Court. The petition was dismissed. Thereafter, he got the suit dismissed by suffering a statement. It is also appropriate to mention that defendant-respondents filed a contempt petition No. 222 of 2004 before this Court. This Court disposed of the contempt petition by observing that usage charges of the demise premises were not paid in accordance with the direction issued by this Court on 14-3-2003. The observation of this Court in that regard reads as under :- "The petitioner is at liberty to take appropriate execution proceedings. It is made clear that the respondent having admittedly not carried out order of this Court, is not entitled to be heard in a dispute between the parties. Since it is stated that order of eviction has already been passed against the respondent and appeal has been filed by the respondent, the petitioner will be at liberty to take a plea before the Appellate Court that the respondent cannot be heard on merit unless order of this Court is carried out. Subject to this condition, petition is disposed of". 8. A perusal of the aforementioned order establishes that an order of eviction had already been passed against the plaintiff-appellant and his appeal was pending without any order of stay. It was further observed by this Court that the plaintiff-appellant was not entitled to be heard on merit unless the order of this Court passed on 14-3-2004 was complied with. 9. A perusal of the aforementioned order establishes that an order of eviction had already been passed against the plaintiff-appellant and his appeal was pending without any order of stay. It was further observed by this Court that the plaintiff-appellant was not entitled to be heard on merit unless the order of this Court passed on 14-3-2004 was complied with. 9. On the basis of the order passed by this Court on 14-3-2004 in the Revision Petition and order dated 16-5-2005 in the Contempt Petition, the learned lower Appellate Court held that the plaintiff-appellant was not entitled to be heard on merit for disposal of the appeal because he had fraudulently refused to pay the usage charges. The learned lower Appellate Court has reiterated the findings of the trial Court with regard to counter-claim made by the defendant-respondent No. 1 and has ordered ejectment of the plaintiff-appellant. 10. Feeling aggrieved, the plaintiff-appellant has approached this Court with the grievance that his right of hearing has been snatched and his ejectment has been ordered at his back. When the appeal came up for hearing on 12-7-2005, the plaintiff-appellant was not present personally or through his counsel and the matter was adjourned to 16-7-2005 because it was stated by the learned counsel for the plaintiff-appellant that the order dated 14-3-2003 passed in Civil Revision No. 6061 of 2002 and orders 16-5-2005 passed in COCP No. 222 of 2004 have been challenged before the Supreme Court. Another adjournment was granted so as to await the result of the SLP and the matter was posted for 1-8-2005. On the aforementioned date the following orders were passed :- "In order to establish the bona fide of the defendant-appellant, who was directed by this Court on 14-3-2003, to pay the usage charges of the premises @ Rs. 8360/- per month from March 2000 onwards, liberty is granted to the defendant-appellant to deposit all the arrears, which comes to about 5.50 lacs, within a period of one week with the Registrar of this Court. If the aforementioned arrears are paid, then the appeal can be heard on merits. List again on 9-8-2005". 11. Learned counsel for the plaintiff-appellant has not been able to put forward any plea explaining the non-deposit of arrears in respect of usage charges which have been assessed at Rs. 5.50 lacs. If the aforementioned arrears are paid, then the appeal can be heard on merits. List again on 9-8-2005". 11. Learned counsel for the plaintiff-appellant has not been able to put forward any plea explaining the non-deposit of arrears in respect of usage charges which have been assessed at Rs. 5.50 lacs. An illegal occupant of a demise premises cannot be premitted to continue to retain possession without making payment of a license fee or usage charges. The usage charges in this case were payable from March 2000 as per orders passed by this Court on 14-3-2003. When the plaintiff-appellant failed to comply with the directions issued by this Court by depositing the adequate amount of usage charges, the right of the plaintiff-appellant to be heard on merit was declined by the lower Appellate Court. Similar position is obtaining in this Court. Despite various adjournments given to the plaintiff-appellant, he has failed to deposit the usage charges from March 2000. Therefore, I do not find any ground what-so-ever to permit the plaintiff-appellant to make submission on merit. The non-payment of usage charges would itself be sufficient to conclude that the plaintiff-appellant is deliberately and knowingly purchasing time and is harassing defendant-respondent No. 1. In the present case, number of opportunities have been granted to the plaintiff-appellant. He appears to think that by moving from one Court to the other, he will be able to browbeat the defendant-respondent No. 1. 12. It is well settled that non-payment of arrears of rent itself is sufficient to pass an order of ejectment against the plaintiff-appellant. In this regard, even under the East Punjab Urban Rent Restriction Act, 1947, the Supreme Court has taken the view that after an order directing the tenant to pay the arrears of rent, if not complied with then such a tenant is not entitled to continue in possession of the demised premises. Reference in this regard may be made to the judgement of the Supreme Court in the case of Rakesh Wadhawan V/s. Jagdamba Industrial Corporation, (2002) 5 SCC 440 : (AIR 2002 SC 2004) and Vinod Kumar V/s. Premlata, (2003) 11 SCC 397 : (AIR 2003 SC 3854). This is the position of law with regard to a tenant who enjoys protection of the Rent Laws. This is the position of law with regard to a tenant who enjoys protection of the Rent Laws. In this regard reference may also be made to the judgement of the Supreme Court in the case of Vasumati Ben Gauri Shankar Bhatt V/s. Navai Ram Manchharan Vora, AIR 1967 SC 405. It has further been held that a tenant should not be granted an opportunity of hearing if he failed to deposit the arrears of rent. For the aforementioned proposition, a reference may be made to the judgement of the Supreme Court in the case of Manik Lal Majumdar V/s. Gouranga Chandra Dey, (2005) 2 SCC 400 : (AIR 2005 SC 1090) and Manik Lal Majumdar V/s. Gouranga Chandra Dey, (2004) 12 SCC 448 : (2004 AIR SCW 1454). The position has to be more strict in cases where protection of the Rent Laws is not available like the licensee or a lessee for a limited period. 13. For the reasons aforementioned, this appeal fails and the same is dismissed. Defendant-respondent shall be entitled to payment of costs which I quantify at Rupees 25,000/-. The costs shall be paid to defendant-Respondent No. 1 within a period of two months from today.