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2008 DIGILAW 1797 (PNJ)

Hari Chand v. Banti

2008-10-23

MAHESH GROVER

body2008
Judgment Mahesh Grover, J. 1. This is a revision petition directed against judgment dated 18.08.1979 of the Appellate Authority, Chandigarh dismissing the appeal of the petitioner-Hari Chand (since deceased and now represented by his legal heir) in which order dated 5.2.1979 passed by the Rent Controller, Chandigarh was challenged. 2. Respondent-Smt. Banti (since deceased and now represented by her legal heirs) filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 , as applicable to Union Territory, Chandigarh (for short, `the Act) for eviction of Hari Chand from Booth No. 29, Sector 22-D, Chandigarh on the ground that he had materially impaired the value and utility of the premises in question; that he was in arrears of rent with effect from 1.8.1974 to 31.3.1976 and that the demised premises were required for her use as well as for use of her husband. 3. It was pleaded by Smt. Banti that she was the owner and landlady of the demised premises and Hari Chand was tenant therein at a monthly rent of Rs. 175/- in addition to electricity charges. 4. The petition was contested by Hari Chand, who tools a preliminary objection that there was no relationship of landlord and tenant between the parties. It was pleaded by him that he was inducted as a tenant in the demised premises by Jagir Singh to whom the said property belonged through his attorney Shri Amar Nath, husband of Smt. Banti. It was denied that any rent was due and rest of the grounds for eviction were also refuted. 5. On the pleadings of the parties, the Rent Controller framed the following issues: 1. Whether relationship of landlord and tenant exists between the parties ? 2. Whether respondent is a tenant under Jagir Singh ? OPR 3. Whether tenancy of the respondent was terminated ? If not, to what effect ? 4. Relief. 6. Issue Nos. 1 and 2 were decided together and it was held that Smt. Banti was the landlady and Hari Chand was the tenant qua the demised premises. It was also held that Hari Chand was not a tenant of Jagir Singh on the date of filing of the petition. Under issue No. 3, it was held that Hari Chand had received notice, Exhibit Al vide which his tenancy was terminated. Non-payment of rent by the tenant was also found to have been established. It was also held that Hari Chand was not a tenant of Jagir Singh on the date of filing of the petition. Under issue No. 3, it was held that Hari Chand had received notice, Exhibit Al vide which his tenancy was terminated. Non-payment of rent by the tenant was also found to have been established. Resultantly, the eviction of Hari Chand from the demised premises was ordered. 7. The appeal preferred by Bari Chand against the order of the Rent Controller was dismissed by the Appellate Authority. Hence, he had filed this revision petition. 8. Learned counsel for the petitioner contended that there was a serious dispute regarding the ownership of the demised premises. He urged that Hari Chand was tenant under Jagir Singh and Amar Nath was merely an attorney of Smt. Banti, who claimed to have purchased the demised premises, but the sale deed was never produced before the Courts below and in this view of the matter, it was submitted that since there was no relationship of landlord and tenant between the parties, there was no question of paying rent to the alleged owner. 9. No one has appeared on behalf the opposite side. 10. I have heard the counsel for the petitioner and have perused the record. 11. Han Chand had consistently denied the relationship of landlord and tenant between him and Smt. Banti. However, the record belies his stand. Exhibit Al is the notice which was sent to Hari Chand through registered post and was served upon him. Through this notice dated 6.11.1975, Hari Chand was informed regarding the termination of the tenancy as he had failed to pay the rent to Smt. Banti, the landlady. Exhibit-PD is the receipt duly signed by Hari Chand on 6.5.1975 in which he had paid rent to Amar Nath, husband of Smt. Banti. In the pleadings also, Hari Chand had stated that he had been paying rent to Amar Nath, who was purportedly acting as attorney of Jagir Singh. 12. Han Chand is also said to have filed a suit against Smt. Banti in which while filing the replication, which is on record as Exhibit-P2, he had stated that Amar Nath had been collecting rent from him on behalf of Shri Jagir Singh as his attorney. Jagir Singh was never produced by either of the parties during the course of proceedings before the Rent Controller. 13. Jagir Singh was never produced by either of the parties during the course of proceedings before the Rent Controller. 13. From the above, it is apparent that right from the beginning, Hari Chand had h been paying rent to Amar Nath, husband of Smt. Band. Although it was claimed by Han Chand that Amar Nath was receiving rent as attorney of Jagir Singh, yet the said power of attorney had never seen the light of the day and Jagir Singh also did not step.into the witness box. 14. Exhibit-A7 is the copy of order dated 14.1.1976 vide which the suit filed by Jagir Singh against Smt. Banti, Shri Amar Nath and Hari Chand was dismissed as barred by limitation. It was claimed therein that a declaration be made that he was the owner and in constructive possession of the demised premises through Hari Chand and that the alleged sale deed executed by Amar Nath as his attorney in favour of Smt. Banti was without consideration and without his consent and was not binding upon him. Regular First Appeal No. 720 of 1976 filed by Jagir Singh against the aforesaid order was dismissed by this Court vide judgment dated 10.1.1985, whereas the Letters Patent Appeal preferred by him came to be dismissed for want of prosecution on 15.1.2003 and the same was never revived. 15. In any eventuality, this has no bearing on the facts of the instant case as it is not important to determine the ownership of the property. 16. Both the Courts below came to the conclusion that no rent had been paid. Han Chand himself had admitted in his written statement that he had not been paying rent. He also admitted payment of rent to Amar Nath ever since the inception of tenancy. The factum of non-payment of rent is therefore, conclusively established as is also the fact that rent was being paid by the petitioner to Amar Nath. 17. Tenancy can be created either orally or by reducing it into writing. In oral tenancy, the arrangement so created is reflected from the conduct of the parties. 18. The rent is a crucial and inherent part of the tenancy. In fact, it forms the bedrock of the relationship between the landlord and tenant. 17. Tenancy can be created either orally or by reducing it into writing. In oral tenancy, the arrangement so created is reflected from the conduct of the parties. 18. The rent is a crucial and inherent part of the tenancy. In fact, it forms the bedrock of the relationship between the landlord and tenant. The moment the tenant denies his relationship with the landlord, he strikes at the basic foundation of the agreement of tenancy and if the Court comes to the conclusion that the rent had not been paid, then in such an eventuality, no protection can be afforded to the tenant because he loses his right to claim the benefit of tenancy. His status can be termed at par to be that of an unauthorised occupant. 19. Once the petitioner, according to his own pleading and showing, was paying rent to Amar Nath, then he cannot turn around to say that he is not bound to pay him rent because the owner happens to be some one else. Amar Nath was the husband of Smt. Banti and it is apparent, therefore, that this was being collected on her behalf. 20. There is a difference between an owner and a landlord. A person may be a landlord without his being the owner. Since the inception or tenancy, if rent was being paid to Amar Nath, then the petitioner is precluded and estopped by his conduct to question his status and hence, non-payment of rent would render him to be an unauthorised occupant. 21. The aforesaid view is fortified by the law laid down by their Lordships of the Supreme Court in Sultan v. Ganesh, 1988(1) R.C.R. (Rent) 195 (SC) and Sankaran Pillai v. V.P. Venuguduswami, 1999(2) RCR(Rent) 173. 22. Even in Rakesh Wadhawan v. Jagdamba Industrial Corporation, 2002(1) RCR(Rent) 514 (S.C.), the Apex Court granted protection to a tenant and not to a stranger. In paragraph 30 of the said judgment, their Lordships observed as under : 1. In Section 13(2)(1) 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 percent per annum on such h arrears together with the cost of application. 2. In Section 13(2)(1) 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 percent per annum on such h arrears together with the cost of application. 2. The proviso to Section 13(2)(i) of the East Punjab Urban Restriction Act, 1949 casts an obligation on the 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, 3. Of necessity, the date of first hearing of the application, would mean the date falling after the date of such order by the Controller. 4. On the failure of the tenant to comply, nothing remains to be done and an order for a 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 the tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficient amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction. 6. Compliance shall save him from eviction. 6. While exercising discretion for affording 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." In view of the above quoted law and the conclusive evidence to indicate that Hari Chand had not paid the rent to Amar Nath, husband of Smt. Banti, to who he was d initially paying the same either as accepting his status as attorney of Jagir Singh or as taking him to be acting on behalf of Smt. Band, I am of the considered opinion that the revision petition is liable to be dismissed. Ordered accordingly.