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2010 DIGILAW 2383 (PNJ)

Baseshar Nath Trust v. Kripo Devi

2010-08-19

ALOK SINGH

body2010
Judgment Alok Singh, J. 1. Present petition is filed by the landlord-petitioner challenging the order dated 23.08.2007 passed by the learned Appellate Authority, Ambala, whereby the learned Appellate Authority allowed the appeal filed by the tenant-respondents and dismissed the eviction petition filed by the petitioner herein. 2. The brief facts of the present case are that landlord - petitioner herein filed a suit for eviction against the tenant on the ground that the tenant is in arrears of rent and has not paid rent and taxes w.e.f. 01.06.1994 till the date of filing of the eviction petition. 3. The tenant - respondent filed written statement denying the relationship of landlord-tenant between the parties. The suit for eviction was filed on 28.05.1994. When suit was at the final stage for the first time, after almost ten years, tenant filed application before the learned Rent Controller on 17.03.2004 for the assessment of rent. However, no decision was taken thereon and eviction petition filed by the landlord - petitioner herein was allowed directing the eviction of the tenant on the ground of arrears of rent after observing that there is a relationship of landlord-tenant between the parties. 4. Feeling aggrieved from the judgment passed by the learned Rent Controller dated 05.03.2005, an appeal was preferred by the tenant. Learned Appellate Authority has observed that the learned Rent Controller committed illegality by not taking any decision on the application moved by the tenant on 17.03.2004 for assessment of the rent. During the appeal, another application was moved by the tenantappellants for the assessment of the rent and sought permission to deposit the entire arrears of rent. The learned Appellate Authority allowed the application filed by the tenantappellant and permitted the tenant to deposit the entire arrears of rent with interest and cost which was paid by the tenant and ultimately appeal was allowed finding that tenant is not in arrears of rent, since the entire payment was made by the tenant during the pendency of the appeal. 5. Learned counsel for the petitioner - landlord vehemently argued that if relationship of landlord-tenant is denied by the tenant, then there is no question of assessing the rent and there is no question of permitting the defendants to deposit the assessed rent along with interest and cost. 5. Learned counsel for the petitioner - landlord vehemently argued that if relationship of landlord-tenant is denied by the tenant, then there is no question of assessing the rent and there is no question of permitting the defendants to deposit the assessed rent along with interest and cost. It is further argued by the learned counsel for the petitioner - landlord that tenant himself did not move any application for assessment of the rent for long 10 years during the pendency of the litigation and ultimately, finding that tenant is going to loose the case, he moved an application on 17.03.2004 with ulterior motive. There was no need for the learned Rent Controller to take a decision thereon. It is further argued by the learned counsel for the petitioner that the Appellate Court has committed jurisdictional error and exceeded in its jurisdiction while assessing the rent and permitting the tenant to deposit the entire arrears of rent with interest and cost during the appeal. 6. Learned counsel appearing on behalf of the respondent - tenant argued that relationship of tenantlandlord is denied bonafidely, since the society - landlord has filed so many eviction petitions and all the tenants were of the view that society is not a landlord, hence all the tenants took the same defence in their respective cases and when in one of the case, decision came that there is a relationship of landlord-tenant and society is a landlord then bona fidely application was moved by the tenant before the learned Rent Controller, which ought to have been allowed and the learned Appellate Court committed no illegality while permitting the respondent to deposit the entire amount during the pendency of the appeal. 7. Now, question before this Court is as to whether Court can grant opportunity to the defendant to deposit the arrears of rent when tenant denying the relationship of the landlord-tenant and not paying the rent. 8. In the case of Jagdish Singh v. Mohan Lal, reported in 2004(2) RCR (Rent), 114, learned Single Judge of this Court while relying upon the earlier decision of this Court in the matter of Hukma Devi v. Bhagwan Dass, reported in 2003(1) R.C.R.(Rent) 533 : 2003(1) R.L.R. 528, has held that where the tenant has denied their relationship of landlord-tenant between the parties, the benefit of providing another opportunity to the tenant to tender the rent is not available. 9. In the case of Harish Chander v. Mohinder Singh, reported in 2009(3) R.C.R.(Civil) 206 : 2009(1) R.C.R.(Rent) 680 : 2009(1) RCR, 680, this Court in paragraph No. 7 has observed as under :- "7. If the tenant had denied his relationship, the other consequence is what follows for non-payment of rent. Admittedly, the rent which was determined by the Court as being payable from 01.05.1983 has not been paid yet. The directions of the Court already made on 09.09.1985 which required the respondent to pay the rent before 17.09.1985 still remains unfulfilled. The non-payment of rent which affords a ground for eviction under Section 13(2)(i) is clearly attracted and the tenant is liable for eviction. The learned Senior Counsel also relies on the decision of this Court in Narinder Singh v. Sarabjit Singh 2006(2) R.C.R.(Rent) 226 : (2007-2) PLR 405 that when a tenant denied the relationship of landlord and tenant, there would be hardly any justification for the Rent Controller to frame an assessment order in pursuance to the provisions to proviso to Section 13(2)(1) of the Act. The judgment was rendered in the context of explaining the decision of the Honble Supreme Court in Rakesh Wadhawan v. Jagdamba Industrial Corporation :2002(1) R.C.R.(Rent) 514 : (2003-2) 113 P.L.R 370. There have been several other decisions of this Court affirming the said view that if there was a denial by tenant of landlords title, the question of even affording an opportunity to pay rent by a particular date as contemplated in Rakesh Wadhawans case (supra) did not apply. I find myself bound and in full agreement with the statement of law as expressed and the tenant is liable to be evicted. The order passed by the Rent Controller directing eviction is restored and the order of the Appellate Authority reversing the decision is set aside." 10. In the case of Dr. Pawan Kumar Bansal v. Gaurav Garg and another, reported in 2010(1) R.C.R. (Rent) 324, in paragraph No. 5, this Court has held as under : "The plea raised on behalf of the petitioner deserves to be outrightly negatived in view of the law laid down by this Court in Yashpal Singla v. Vijay Kumar 2004(1) R.C.R.(Rent) 718 : 2004(2) Civ. C.C. 603 and Jagdish Singh v. Mohan Lal 2004(2) R.C.R.(Rent) 114 : 2004(3) Civ. C.C. 134. C.C. 603 and Jagdish Singh v. Mohan Lal 2004(2) R.C.R.(Rent) 114 : 2004(3) Civ. C.C. 134. In both the cases aforementioned, the tenant had denied the existence of relationship of landlord-tenant, however, the Rent Controller recorded a finding in favour of the landlord on point of existence of relationship. It was under those circumstances that this court held that there was no justification for grant of an opportunity to tenant to deposit the arrears of rent." 11. From the above cited judgments, it is clear that issue raised in this petition is no more res integra. It is now settled view as per above dictum that if tenant is denying relationship of landlord-tenant between the parties, then there is no question of granting any opportunity to the tenant to deposit the amount. 12. In view of the settled principle of law as observed above, in the opinion of this Court, Learned Appellate Court was not within its jurisdiction while permitting the appellanttenant to tender the entire amount and to give the benefit to the tenant. Judgment impugned herein does not stand in the scrutiny of law. 13. Present petition is allowed. The impugned order passed by the learned Appellate Authority dated 23.08.2007 is set aside and order of learned Rent Controller dated 05.03.2005 is restored. However, two months time is granted to the tenant to hand over the vacant and peaceful possession to the petitioner - landlord. A photocopy of the order be placed on the file of connected case.