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Punjab High Court · body

2007 DIGILAW 1571 (PNJ)

Kaushalya Rani (Dead) Through Lrs v. Sham Lal

2007-08-30

SATISH KUMAR MITTAL

body2007
Judgment Satish Kumar Mittal, J. 1. This judgment shall dispose of two Civil Revisions bearing Nos. 2596 of 1995, which are arising from two separate orders, though between the same parties and pertaining to the same premises. Both these petitions are arising from the orders passed in two separate ejectment applications filed by the respondents-landlords on the ground of non-payment of rent for different periods. 2. Civil Revision No. 2596 of 1995 is arising out of Rent Application No. 4344 dated 7.11.1989, whereas Civil Revision No. 2597 of 1995 is arising out of Rent Application No. 11 dated 17.1.1989. 3. The petitioner was inducted as a tenant in the entire SCF No. 66, Sector 47-D, Chandigarh, at a monthly rent of Rs. 3,325/- under the rent noted dated 21.6.1983 (Ex. P-1), executed and signed by both the parties. According to the said rent note, the tenancy was for 11 months and it was agreed that if the tenancy is continued, on mutual understanding upto 2 years, then from 1.7.1985, the rent was to be increased to Rs. 3,425/- per month and from 1.7.1986, it was further increased to Rs. 3,525/-. Similarly, with effect from 1.7.1987, the monthly rent of the premises was to increase from Rs. 3,525/- to Rs. 3,625/- and from 1.7.1988, it was to be increased to Rs. 3,725/- and then from 1.7.1989, the rent was to increase from Rs. 3,725/- to Rs. 3,825/- per month. 4. The respondents-landlords filed Rent Application No. 11 dated 17.1.1989 on the ground of non-payment of rent. In that application, they claimed rent for the following periods : Rent for the period from 1.9.1988 to 31.1.1989 at the rate of Rs. 3,725/- per month = Rs. 18,625/- In addition to the said rent, the landlords also claimed arrears of rent on account of difference at the rate of Rs. 100/- per month for the period from 1.7.1987 to 31.1.1988, at the rate of Rs. 200/- per month from 1.2.1988 to 30.6.1988 and at the rate of Rs. 300/- for period from 1.7.1988 to 31.8.1988 along with costs and interest upto date. 5. In the second ejectment application i.e. Rent Application No. 4344 dated 7.11.1989, the respondents-landlords claimed the following arrears of rent :- (A) Rent for the period from 1.9.1988 to 30.6.1989 at the rate of Rs. 3,725/- per month = Rs. 300/- for period from 1.7.1988 to 31.8.1988 along with costs and interest upto date. 5. In the second ejectment application i.e. Rent Application No. 4344 dated 7.11.1989, the respondents-landlords claimed the following arrears of rent :- (A) Rent for the period from 1.9.1988 to 30.6.1989 at the rate of Rs. 3,725/- per month = Rs. 37,250/- (B) Rent from 1.7.1989 to 30.11.1989 at the rate of Rs. 3,825/- per month = Rs. 19,125/- Total = Rs. 56,375/- In addition to the said rent, the landlords also claimed arrears of rent on account of difference at the rate of Rs. 100/- per month for the period from 1.7.1987 to 31.1.1988, at the rate of Rs. 200/- per month from 1.7.1988 to 30.6.1988 and at the rate of Rs. 300/- for period from 1.7.1988 to 31.8.1988 along with costs and interest upto date. 6. It is pertinent to mention here that the arrears of rent claimed in Rent Application No. 11 dated 17.1.1989 is covered by Rent Application No. 4344 dated 7.11.1989. Therefore, the facts in this case are being taken from Rent Application No. 4344 dated 7.11.1989. 7. The petitioner-tenant appeared and contested the aforesaid ejectment applications. In the written statement, it was stated that the rent claimed by the landlords had either been tendered in the court or paid to Kura Mal and Anil Kumar, the relatives of the landlords, against the receipts. Thus, it was stated that the total rent, covering this period stands paid and receipts would be produced in the court. It is pertinent to mention here that in this case, since a plea was taken by the petitioner-tenant that the claimed rent had already been paid against the receipts, therefore, the Rent Controller did not assess any rent or interest. However, the cost of the petition was assessed as Rs. 200/-, which was paid by the petitioner-tenant on the first date of hearing. Thereafter, on the pleadings of the parties, the following issues were framed ; 1. Whether respondent (petitioner herein) is in arrears of rent ? OPA 2. Whether rent claimed by petitioners (respondents herein) have been paid by the respondent (petitioner herein) ? OPR 3. Relief. 8. 200/-, which was paid by the petitioner-tenant on the first date of hearing. Thereafter, on the pleadings of the parties, the following issues were framed ; 1. Whether respondent (petitioner herein) is in arrears of rent ? OPA 2. Whether rent claimed by petitioners (respondents herein) have been paid by the respondent (petitioner herein) ? OPR 3. Relief. 8. In order to prove their case, the respondents-landlords examined Kura Mal as PW-1 and the petitioner-tenant examined Sunil Kumar, Ahlamd of the Court of Rent Controller, Chandigarh, as RW-1 and Ram Gopal Sharma, attorney of the petitioner-tenant as RW-2. In order to show the payment of rent, the petitioner-tenant also placed on record the receipts Ex. R-3 to Ex. R-73. 9. The Rent Controller, after taking into consideration the evidence led by both the parties, came to the conclusion that the petitioner-tenant had failed to prove cogent and convincing evidence to show that the claimed rent had already been paid by him to the landlords and consequently, the ejectment order was passed. The appeal filed by the petitioner-tenant against the order of ejectment, passed by the Rent Controller, has also been dismissed. The Appellate Authority also found that as per clause 10 of the rent note (Ex. P- 1), the tenant was liable to pay the increased rent as stipulated in the rent note. It has been found that on 1.3.1987, the tenant was liable to pay rent at the rate of Rs. 3,525/- per month and with effect from 1.7.1987 at the rate of Rs. 3,625/- per month and so on with increase as per rent note Ex. P-1. The Appellate Authority has also confirmed the finding of the Rent Controller that the tenant has failed to prove the payment of rent with effect from 1.2.1989 to 30.6.1989 at the rate of Rs. 3,725/- per month and from 1.7.1989 to 30.11.1989 at the rate of Rs. 3,825/- per month. Consequently, the ejectment order was passed. 10. It is pertinent to mention here that in Rent Application No. 11 dated 17.1.1989, it was found that rent for the period from 1.9.1988 to 31.12.1988 was paid at the rate of Rs. 3,525/- per month, whereas it should have been tendered at the rate of Rs. 3,725/- per month. It has also been held that tenant was also liable to pay interest on the rent for the said period. 3,525/- per month, whereas it should have been tendered at the rate of Rs. 3,725/- per month. It has also been held that tenant was also liable to pay interest on the rent for the said period. It has been further held that the tenant has not paid the difference of the enhanced rent at the rate of Rs. 100/- per month from 1.7.1987 to 31.1.1988, at the rate of Rs. 200/- per month from 1.2.1988 to 30.6.1988 and at the rate of Rs. 300/- per month from 1.7.1988 to 31.3.1989. Since the said amount was not tendered on the first date of hearing, the order of ejectment was passed against the petitioner. 11. Against the said orders of ejectment, the instant revision petitions have been filed by the petitioner-tenant. 12. On 17.7.1995, at the time of issuing notice of motion, dispossession of the petitioner was stayed subject to his depositing rent at the rate of Rs. 3,725/- per month upto date. Thereafter, on 4.2.1997, at the time of admission of the petitioners, the interim order dated 17.7.1995 was ordered to continue and the petitioner was directed to continue to deposit future rent by the 10th of each month. 13. Shri M.L. Sarin, learned Senior Counsel for the petitioner-tenant, assisted by Ms. Himani, Advocate, submitted that the findings recorded by both the courts below that the petitioner has not paid the arrears of rent as well as the difference of rent on account of increase of rent in terms of the rent note Ex. P-1 is not liable to be sustained, as these findings are contrary to the evidence available on the record and based on wrong interpretation of the rent note Ex. P-1. Learned counsel submitted that in the Rent Application No. 11 dated 17.1.1989, from which Civil Revision No. 2597 of 1995 is arising, only difference of rent on account of enhancement of rent as per the terms of the rent note has been tendered, whereas in the second ejectment application i.e. Rent Application No. 4344 dated 7.11.1989, rent for the period from 1.2.1989 to 30.6.1989 at the rate of Rs. 3,725/- per month and from 1.7.1989 to 30.11.1989 at the rate of Rs. 3,825/- per month was not tendered/paid by the tenant. 3,725/- per month and from 1.7.1989 to 30.11.1989 at the rate of Rs. 3,825/- per month was not tendered/paid by the tenant. Regarding the enhanced rate of rent, learned counsel submitted that clause 10 of the rent note regarding enhancement of rent incorporated in the rent note Ex. P-1 has been made applicable by both the courts below, in view of the Division Bench decision of this Court in Smt. Hardev Kaur and others v. M/s. Ghazal Restaurant, Chandigarh and another, 1992(2) RCR(Rent) 660 : 1992(2) PLR 712, but the said Division Bench decision of this Court is not applicable to the facts and circumstances of this case. Learned counsel submitted that in Smt. Hardev Kaurs case (supra), the premises was given on lease for a period of five years by a registered lease-deed and as per the clause in the said lease-deed, on completion of 3 years of lease, the rent was to be increased by 10%. In view of the said condition, it was held by the Division Bench that there is no bar for the landlord to ask for a periodical increase of rent. The East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as `the Act) does not forbid the parties from entering into a bilateral agreement for periodical increase of rent except when Section 6 of the Act is attracted. The agreement providing for such increase was held to be legal, valid and enforceable. 14. Learned counsel for the petitioner-tenant submitted that as far as the instant case is concerned, the rent note Ex. P-1 was executed for a period of 11 months. Both the parties signed the same, therefore, it required to be compulsorily registered. He further submitted that in the said rent note, it was agreed that if the tenancy of the premises continues on mutual understanding upto 2 years i.e. upto 30.6.1985, the tenant will pay the enhanced amount of rent, as stipulated in the said clause. Learned counsel submitted that after the expiry of 11 months, the petitioner became the statutory tenant and therefore, after becoming the statutory tenant, he was not bound to pay the enhanced rent as per clause 10 of the rent note Ex. P-1, which is an unregistered document. Learned counsel submitted that after the expiry of 11 months, the petitioner became the statutory tenant and therefore, after becoming the statutory tenant, he was not bound to pay the enhanced rent as per clause 10 of the rent note Ex. P-1, which is an unregistered document. In support of his contention, learned counsel has referred to a judgment of this Court in Behari Lal Gokleney, Advocate, Fazilka v. Ved Parkash and another, 1979(1) RCR(Rent) 569 : 1979(1) Rent Law Reporter 651, wherein a rent note was executed between the parties for a period of one year with a stipulation in it regarding increase of rent after every year. In that case, this Court held that if on expiry of period of one year, the tenant continues in possession not by virtue of rent note, but virtue of the provision of the Act i.e. as statutory tenant, any stipulation in the rent note regarding increase of rent on the happening of a certain condition in future, entered in the rent note would not survive after the expiry of the lease period. It was further held that any stipulation in such a rent note will be hit by provision of sub-section (1) of Section 7 of the Act being not enforceable. 15. Regarding the non-payment of rent for the period from 1.2.1989 to 30.6.1989 at the rate of Rs. 3,725/- per month and from 1.7.1989 to 30.11.1989 at the rate of Rs. 3,825/- per month, learned counsel for the petitioner- tenant submitted that for the said period, rent was paid vide receipts Ex. R- 24 and Ex. R-33 and both the courts below have wrongly held that the rent receipts produced by the petitioner-tenant do not relate to the period in dispute. 16. Learned counsel for the petitioner-tenant further submitted that if this court does not find any force in the aforesaid submissions and comes to the conclusion that both the courts below have rightly held that the petitioner has not paid the arrears of rent for the alleged period at the enhanced rate of rent, even in that situation, the petitioner-tenant is entitled for second opportunity for payment of the said rent to the respondents-landlords after the final adjudication in terms of the decision of the Supreme Court in Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others, 2002(1) RCR(Rent) 514 (SC) : 2002(5) Supreme Court Cases 440. Learned counsel for the petitioner-tenant submitted that in both these petitions, the Rent Controller did not make assessment of the arrears of rent and interest on such arrears. He has only assessed the costs, because the tenant made the statement that arrears of rent had already been paid by him. Learned counsel submitted that under the provision of Section 13(1)(i) of the Act, it is the duty of the Rent Controller to make an assessment of arrears of rent, the interest on such arrears and the cost of application by passing a provisional order, and if such provisional order is passed the tenant is required to tender the amount, as assessed, on the first date of hearing, so as to satisfy the requirement of the proviso. In case, the tenant does not tender the rent, interest and cost, so assessed by the provisional order, on the first date of hearing he is liable to be ejected. If the tenant makes the payment of the said amount and contests the arrears of rent or rate of rent as claimed, the case will continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the pleas raised by the parties. If the Rent Controller at the final adjudication comes to the conclusion that the amount deposited by the tenant under the provisional order is short or deficient, the Rent Controller may pass a 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 alone he shall be liable to be evicted. Learned counsel submitted that since in this case, no provisional assessment of the arrears of rent and interest was made by the Rent Controller and only the amount of cost was assessed, which was paid by the petitioner-tenant, therefore, it should be taken that the petitioner- tenant had complied with the proviso to Section 13(2)(i) of the Act and if subsequently, at the time of final adjudication, it was found that the petitioner was liable to pay rent for the alleged period, then second opportunity should have been provided to him before passing the order of ejectment and a conditional order of ejectment should have been passed giving reasonable time to the petitioner for paying or tendering the deficit rent. 17. 17. In reply to the aforesaid submissions, Shri Pankaj Katia, Advocate, learned counsel for the respondents-landlords submitted that in the earlier ejectment application, the petitioner-tenant himself has tendered the rent at the increased rate and both the courts below, while taking into consideration the said factor, have come to the conclusion that the petitioner-tenant has accepted the increased rate of rent. Therefore, now he cannot be permitted to take the stand that he is not liable to pay the increased rate of rent. Regarding the payment of rent for the period from 1.2.1989 to 30.6.1989 vide receipt Ex. R-24 and from 1.7.1989 to 30.11.1989 vide receipt Ex. R-33, learned counsel submitted that these two receipts were not issued by the respondents-landlords. Undisputedly, these receipts were issued by one Anil Kumar, who is neither related to the landlords nor he was authorised to receive rent on behalf of the landlord. Learned counsel submitted that both the courts below have found as a fact that the petitioner-tenant has failed to prove that Anil Kumar was authorised to collect the rent on behalf of the respondents-landlords. Therefore, these two receipts issued by Anil Kumar have been rightly ignored by the Courts below. 18. As far as providing of second opportunity to the petitioner-tenant for paying or tendering the deficit rent after final adjudication, in view of Rakesh Wadhawans case (supra) is concerned, learned counsel for the respondents-landlords submitted that the said decision is not applicable in the present case, as the petitioner-tenant has wrongly taken a stand before the Rent Controller that the arrears of rent claimed has already been paid, which fact subsequently was found to be incorrect. 19. After hearing counsel for the parties and perusing the records of the case, I am of the opinion that the first two contentions raised by learned counsel for the petitioner are not liable to be accepted. Regarding liability to pay increased rent, on the basis of clause 10 of the Rent Note, both the courts below have come to the conclusion that in the earlier ejectment application, where the tender was made for the claimed arrears of rent at the monthly rent, the petitioner-tenant made the tender of the arrears of rent at the enhanced rate, without contesting the issue of rate of rent. Thus, he had accepted the increase of rent every year. Thus, he had accepted the increase of rent every year. In view of the said acceptance of increase of rent by the petitioner-tenant and in view of the fact that in the written statement filed in Rent Application No. 4344 dated 7.11.1989, the petitioner-tenant has not even disputed the claim of the increase of rent, I am of the opinion that both the courts below have rightly held that the petitioner is liable to pay the increase rent, as claimed by the respondents. 20. As far as the payment of rent vide receipts Ex. R-24 and Ex. R-33 is concerned, I have perused both these receipts available on the record, which have been signed by Anil Kumar. Though the petitioner has taken the stand that Anil Kumar was the relative of the landlords and he was collecting rent on their behalf, but the petitioner did not lead any evidence to this effect that Anil Kumar was authorised by the landlords to collect rent on their behalf. Rather, Kura Mal (PW-1), father of respondent No. 1, in his statement, has categorically stated that Anil Kumar was neither related to him nor he was authorised to collect the rent on behalf of the landlords. In my opinion, both the courts below have rightly recorded a finding of fact that vide these two receipts, it cannot be proved that the rent was paid by the petitioner to the respondents. Therefore, the finding recorded by both the courts below regarding non-payment of arrears of rent and the difference of rent for certain periods is correct in accordance with the evidence. 21. Now in the facts and circumstances of the case, when finally the Rent Controller came to the conclusion that the petitioner has not tendered or paid rent for the claimed period, the question arises is whether the petitioner is liable to be straight way evicted or whether he is entitled for the second opportunity to tender or pay the rent as per the final adjudication made by the Rent Controller. The Supreme Court in Rakesh Wadhawans case (supra), after interpreting Section 13(2)(i) of the Act, has come to the conclusion that this provision casts an obligation on the Rent Controller to make an assessment of (i) arrears of rent, (ii) the interest of 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. If the tenant failed to comply with the aforesaid provisional order, then straight way he is liable to be evicted. But if the tenant complies with the said provisional order and disputes the claim made by the landlord, then the proceedings will 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 tenant before the Controller. If finally, the dispute by the Rent Controller is at variance and it is found that the tender made by the tenant is short or deficient, the Controller may pass a 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 alone he shall be liable to be evicted. 22. A perusal of the record of this case shows that the Rent Controller did not make assessment of the arrears of rent and the interest on such arrears, as the tenant claimed that he had paid the entire rent. Only cost of the petition was assessed and the same was paid by the tenant on the first date of hearing. As laid down by the Supreme Court in Rakesh Wadhawans case (supra), it was duty of the Rent Controller to make assessment of the arrears of rent and the interest. If the Rent Controller, while prima facie accepting the plea of the tenant did not make assessment of the arrears of rent and the interest thereon, it cannot be said that the tenant has failed to comply with the proviso. It was not the duty of the tenant to make assessment of the arrears and interest and then tender the same to the landlord in compliance with the proviso. It was not the duty of the tenant to make assessment of the arrears and interest and then tender the same to the landlord in compliance with the proviso. As per the assessment order, passed by the Rent Controller, cost was paid and the Rent Controller decided to continue with the case to adjudicate upon the pleas taken by both the parties. Ultimately, after taking into consideration the evidence led by the parties, the Controller came to the conclusion that the petitioner-tenant has not paid the arrears of rent, as claimed by the landlords. In my opinion, if the Rent Controller came to the aforesaid conclusion, it was incumbent upon him to pass a conditional order directing the tenant to place the landlord in possession of the premises by giving reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Since the Rent Controller, has straight way passed the order of ejectment, after coming to the conclusion that the arrears of rent as claimed by the landlords were not tendered/paid by the tenant, in my opinion, such order is not sustainable in view of the decision of the Supreme Court in Rakesh Wadhawans case (supra). I do not find any substance in the contention of learned counsel for the respondents-landlords that the said decision of the Supreme Court is not applicable to the facts and circumstances of the instant case. Merely because the tenant took the plea before the Rent Controller that he had already paid the claimed arrears of rent and he did not tender the claimed arrears with interest, as the Rent Controller did not pass any provisional order, it cannot be held that the said decision of the Supreme Court is not applicable. 23. In view of the above, both these petitions are allowed and the impugned orders, passed by the courts below are set aside. Both the cases are remitted to the Rent Controller, Chandigarh, with a direction to pass the conditional order in view of the decision of the Supreme Court in Rakesh Wadhawans case (supra).