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2010 DIGILAW 1195 (PNJ)

Subhash Singhal v. Deputy Commissioner, Bhatinda

2010-03-15

JASBIR SINGH, MUKUL MUDGAL

body2010
JUDGMENT Mr. Mukul Mudgal, C.J. (Oral) - This appeal has been filed assailing the order of learned Single Judge dated 1.2.2010 passed in Civil Writ Petition No. 861 of 2010. 2. Succinctly stating the facts of the case are that the appellant had taken the shop bearing M.C. No. 4, First Floor, Gol Diggi Market, Bathinda, from respondent No. 3 on rent for a period of three years w.e.f. 1.3.2003 to 28.2.2006 in open auction held for the purpose. It is stated in the writ petition that on 14.10.2002, the appellant deposited a sum of Rs. 37,200/- i.e. rent of one year prior to taking over the possession of the shop. Respondent No. 3 had approved auction in favour of the petitioner on 16.10.2002. After the aforesaid deposit, no other amount towards rent was paid by the appellant, therefore, respondent No.3 Municipal Corporation, Bhatinda filed an application under Sections 4,5 and 7 of the Punjab Public Premises & Land (Eviction & Rent Recovery) Act, 1973 in the Court of Sub Divisional Magistrate exercising the powers of Collector, Bhatinda for eviction of the appellant and for recovery of the arrears amount of Rs. 1,53,140/- for use and occupation alongwith Rs. 15,314/- as surcharge and 20% increase as per instructions upto 28.2.2007 and also claimed interest at the rate of 18% till the date of recovery. 3. Upon notice of the said application, the appellant filed his reply stating that he has already paid Rs. 37,200/- as rent for one year and since major repairs in the shop were to be done because of its bad condition, notice was given to Municipal Corporation but neither the shop was got repaired nor possession of the same was given to him. Therefore, Corporation was not entitled to either get him evicted or make any recovery. However, later on the appellant did not produce any evidence though several opportunities were granted and his evidence was closed. On 29.2.2008, no body appeared on his behalf and he was proceeded against exparte. 4. Therefore, Corporation was not entitled to either get him evicted or make any recovery. However, later on the appellant did not produce any evidence though several opportunities were granted and his evidence was closed. On 29.2.2008, no body appeared on his behalf and he was proceeded against exparte. 4. The said application was allowed on 11.3.2008 holding that the appellant failed to prove that he had not taken over the possession and also that he had paid any lease money to the Corporation or increased rent and even after the expiry of lease period, no further agreement was executed nor possession was handed over back to the Municipal Corporation, therefore, he is in unauthorised possession. Thus, the Collector directed the appellant to handover the possession of the shop within one month and if he failed to do so, the Municipal Corporation was given liberty to get possession by moving an execution application in due process of law. The appellant was also ordered to pay arrears amount of Rs. 1,53,140/- calculated upto 27.2.2007 alongwith Rs. 15,314/- as surcharge with increase 20% and thereafter till vacating the shop alongwith interest @ 12% per annum and if he failed to pay the same, the Municipal Corporation would be entitled to take possession in due process of law. 5. The aforesaid order was passed by the Collector exparte because the appellant did not choose to appear. After passing of the order dated 11.3.2008, the appellant moved an application under Order 9 Rule 13 CPC read with Section 151 CPC for setting aside the exparte order dated 11.3.2008 wherein he took a plea that his counsel was not available on 11.3.2008 and had gone to Rajasthan. He further took up the same pleas as was taken in the main petition regarding repair etc. and that application was dismissed on 30.7.2009. Since the petitioner did not comply with the directions given by the Collector in its order dated 11.3.2008, the Municipal Corporation, Bhatinda filed an execution application. The said application was allowed on 30.7.2009 ordering that the possession of the shop in dispute be handed over to the Municipal Corporation whereas application for setting aside exparte order dated 11.3.2008 was dismissed. Since the petitioner did not comply with the directions given by the Collector in its order dated 11.3.2008, the Municipal Corporation, Bhatinda filed an execution application. The said application was allowed on 30.7.2009 ordering that the possession of the shop in dispute be handed over to the Municipal Corporation whereas application for setting aside exparte order dated 11.3.2008 was dismissed. Feeling aggrieved of order dated 30.7.2009, the appellant filed two appeals before the Deputy Commissioner, Bhatinda exercising the powers of Commissioner i.e. one against the exparte order dated 11.3.2008 and the other against order dated 30.7.2009 dismissing the application for setting aside the exparte order. The said appeals were dismissed by the Commissioner on 23.10.2009 holding that the plea regarding absence of Advocate was just a ruse to make the basis for filing an application, because if it was so, than the application regarding taking action against the Advocate should have been produced. He further held that no material has been brought before him on the basis of which order of eviction and recovery could be set aside. The orders passed by the Commissioner were challenged by the appellant in Civil Writ Petition No. 861 of 2010 which was dismissed on 1.2.2010 by the learned Single Judge of this Court. Hence this appeal. 6. Learned counsel for the appellant contended that possession of the shop was never put to use for which it was taken because the shop required immense repair work so as to make it useable and that absence of the counsel for the appellant before the Collector was not deliberate. She further contended that bonafides of the appellant is clear from the fact that he had deposited a sum of Rs. 37,200/- as rent in advance for one year when he had not even entered into lease agreement with the Corporation. 7. After hearing learned counsel for the appellant and on going through the record, we find that the question of repair has been dealt with at length by the learned Single Judge while dismissing the writ petition. Learned Single Judge passed the impugned order against the appellant on the following grounds:- a) Non repair of the premises was no justification for the alleged non payment of the rent. b) The appellant ought to have exercise independent right for securing the repairs in the manner known to law particularly when no fresh lease was executed. 8. Learned Single Judge passed the impugned order against the appellant on the following grounds:- a) Non repair of the premises was no justification for the alleged non payment of the rent. b) The appellant ought to have exercise independent right for securing the repairs in the manner known to law particularly when no fresh lease was executed. 8. We are also of the view that since the appellant continued in possession even after passing of the eviction order till date and that too even after date of expiry of lease date without there being any further agreement in his favour, the conduct of the petitioner is not such which may create any equity in his favour. The plea taken that the exparte order passed by the Collector is not sustainable because absence of Advocate was not intentional is also not acceptable because the same has been discussed at length by the Commissioner while rejecting the appeal against the order dismissing the application for setting aside the exparte order. No fresh ground has been brought before us to take a view different to the one already taken by the Commissioner. Accordingly, we find no merit in the appeal and the same is hereby dismissed. We hope and trust that the Corporation shall recover the possession of the disputed shop from the appellant expeditiously.