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2012 DIGILAW 249 (PNJ)

Amarjit Singh v. Alamjit Singh Mann

2012-02-14

RAKESH KUMAR JAIN

body2012
JUDGMENT Mr. Rakesh Kumar Jain J.: - The question involved in this revision is “whether in an appeal against an order of eviction passed upon non-payment of arrears of rent, the appellate authority can stay dispossession of the tenant on payment of some part of arrears of rent or the entire rent as ordered by the Rent Controller is to be paid/deposited?” 2. The landlords are in revision against the order of the Appellate Authority dated 3.11.2011 by which order of eviction passed by the Rent Controller dated 28.9.2011 has been stayed subject to deposit of 30% of the arrears of rent. 3. In brief, according to the case of the landlord, basement and ground-floor of SCO No.483-484, Sector 35-C, Chandigarh (for short ‘demised premises) comprising of an area of approximately 3700 Sq. ft. was let out to the tenant, who is running a restaurant in the name and style of “Memorable Moments”, for a period of 5 years w.e.f. 1.7.2002 to 30.6.2007 at a monthly rent of Rs.1,20,000/- with increase of 8% compounded after every year. Accordingly, the lease had started from 28.6.2002 and the rent was to be paid as under: From To Rent Per month (in Rs.) 01.07.02 31.12.2002 1,20,000/- 01.01.03 30.06.2003 1,30,000/- 01.07.03 30.06.2004 1,62,000/- 01.07.04 30.06.2005 1,74,960/- 01.07.05 30.06.2006 1,88,957/- 01.07.06 30.06.2007 2,04,074/- 4. The landlord filed a petition for eviction under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) on the ground that the tenant has stopped making payment of rent w.e.f. 1.11.2003 onwards. In the written statement, it was alleged that the demised premises has been resumed by the Chandigarh Administration on 19.12.1996, who had directed the tenant, vide its letter dated 17.11.2004, to deposit the rent with the Estate Office. He has challenged the registered lease deed dated 28.6.2002 by way of Civil Suit on the ground that it is a result of misrepresentation and has sought mandatory injunction directing the landlord to fix the proper rent and adjust the excess payment made. It was further alleged that the rate of rent of the demised premises was Rs.1,25,000/- per month as per compromise between the parties and the rate of rent as alleged by the landlord in the aforesaid chart was denied. It was denied that there was a stipulation of an increase by 8% per annum compounded every year. It was further alleged that the rate of rent of the demised premises was Rs.1,25,000/- per month as per compromise between the parties and the rate of rent as alleged by the landlord in the aforesaid chart was denied. It was denied that there was a stipulation of an increase by 8% per annum compounded every year. It is denied that rent is due w.e.f. 1.11.2003. It was also alleged in the counter-claim that order of resumption passed by Chandigarh Administration dated 19.12.1996 was due to building violations by the landlords which was not disclosed at the time when the demised premises was let out. The tenant had also filed a criminal complaint under Section 420/34 IPC against the landlords in this regard. In replication, it was averred that the order of resumption dated 19.12.1996 is set aside and the tenant has not deposited even a single penny in the Estate Office in terms of the alleged letter dated 26.7.2004. It was alleged that the tenant wanted to enjoy the possession of demised premises without payment of any rent. From the pleadings of the parties issues were framed and both the parties led their respective oral as well as documentary evidence in support of their case. The learned Rent Controller had observed that “indisputably, lease deed dated 28.6.2002 was executed by the respondent in favour of the present petitioners, whereby he took basement and ground-floor area approximately 3700 sq. ft. of the SCO in question on rent from them. Execution of lease deed dated 28.6.2002 (Ex.P3) has been proved by PW1 Amarjit Singh, lessor. Respondent Alamjit Singh in his crossexamination admitted as correct that lease deed Ex.P3 was executed and registered on 28.6.2002 and bears his signatures and photographs.” It was also observed that “indisputably respondent paid rent at the rate mentioned in the lease deed upto 1.10.2003 through cheques/drafts to the petitioners. Rent receipts to this effect have been proved by the respondent.” 5. It was further held that “In view of the law laid down by Hon’ble Supreme Court in Rakesh Wadhawan’s case (Supra) the respondent having earlier paid the rent as provisionally assessed by this Court is to be granted time to pay the difference of rent amount etc. s detailed above. It was further held that “In view of the law laid down by Hon’ble Supreme Court in Rakesh Wadhawan’s case (Supra) the respondent having earlier paid the rent as provisionally assessed by this Court is to be granted time to pay the difference of rent amount etc. s detailed above. So, he is granted two months time to pay/deposit the said amount of rent, failing which he is liable to be ejected from the demised premises. All these issues are accordingly decided.” 6. Ultimately, the Rent Controller found that the tenant is liable to pay the rent as alleged by the landlord after adjustment of the provisionally assessed rent. The total outstanding rent was found to be Rs.1,22,16,931/- which was directed to be paid within a period of 2 months. It was further ordered that in case the said amount is paid then the eviction petition would stand dismissed and in case it is not paid then the tenant would be liable to handover vacant possession to the landlord. 7. Aggrieved against the order of eviction, the tenant filed the statutory appeal under Section 15(1)(b) of the Act before the Appellate Authority alongwith an application for stay in terms of Section 15(2) of the Act. The said application was contested by the landlord who had argued that the stay cannot be granted until and unless the entire arrears of rent is paid. The landlord supplied the following judgments:- (i) “Hoshiar Singh etc. Vs. Pukh Raj etc.” 1980 CLJ 467 (ii) “Chaman Lal Vs. Smt. Baljit Kaur and others” 1992(1) RCR 63 (iii) “Mahabir Singh Vs. Sumitra Midha and another” 1976 RCR 789 (iv) “Surinder Singh Vs. Dr. Davinder Mohan” 2008 (2) RCR 90 8. The learned Appellate Authority granted stay with the condition that the tenant would deposit 30% of the arrears of rent as assessed by the Rent Controller. 9. Aggrieved against the aforesaid order, the present revision petition has been filed. 10. Learned counsel for the petitioners has submitted that the learned Appellate Authority has committed a patent error of law in staying the order of eviction of the Rent Controller subject to deposit of 30% of the rent which is an inequitable order in law. He further submits that insofar the criminal complaint of the tenant is concerned, that has already been quashed by this Court in CRM-M-58831 of 2004 titled as “Amarjeet Singh and others Vs. He further submits that insofar the criminal complaint of the tenant is concerned, that has already been quashed by this Court in CRM-M-58831 of 2004 titled as “Amarjeet Singh and others Vs. Alamjit Singh Mann” decided on 8.9.2010 and the order of resumption has been quashed in CWP No.8220 of 2005 titled as “Amarjeet Singh and others Vs. Chandigarh Administration and others” decided on 24.7.2007. He has further submitted that Section 15(2) of the Act empowers the Appellate Authority to order stay on further proceedings in the matter pending decision in appeal but it does not lay down as to whether Appellate Authority can grant stay subject to deposit of a particular percentage of the arrears of rent. He further argued that the learned Appellate Authority has passed a cryptic order as he though referred the aforesaid decision in the impugned order but did not discuss the ratio laid down therein except for noticing his arguments that in order to get equitable relief of stay, the tenant must pay the entire arrears of rent due. He further submits that the Appellate Authority has ordered for deposit of 30% of arrears of rent only on the ground that huge amount is involved which should not be a concern of the Appellate Authority because huge amount has accumulated due to the fault of the tenant who had stopped making payment of rent due for almost a period of 8 years and has been enjoying the property of the landlord for running a restaurant in the flourishing market of Sector 35, Chandigarh. He has reiterated the precedents which were cited before the Appellate Authority and are referred herein above in this order and has also relied upon decisions in the cases of “Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corporation” 2002(1) RCR (Rent) 514, “M/s Atma Ram Properties (P) Ltd. Vs. M/s Federal Motors Pvt. Ltd.” 2005(3) PLR 643 and “Surinder Kumar Vs. Rattan lal” 2006(2) PLR 200. 11. Learned counsel for the tenant has argued that there is no error in the order of the learned Appellate Authority for deposit of 30% of the rent which has been tendered as the condition of depositing the entire amount was onerous. M/s Federal Motors Pvt. Ltd.” 2005(3) PLR 643 and “Surinder Kumar Vs. Rattan lal” 2006(2) PLR 200. 11. Learned counsel for the tenant has argued that there is no error in the order of the learned Appellate Authority for deposit of 30% of the rent which has been tendered as the condition of depositing the entire amount was onerous. He further submits that there are no guidelines in the provisions of Section 15(2) of the Act as to what conditions can be imposed by the Appellate Authority at the time of grant of stay of eviction in a case based upon nonpayment of arrears of rent but the learned Appellate Authority has exercised its judicial discretion in the aforesaid case which does not call for any interference. In support of his submission, he has relied upon a judgment of the Supreme Court in the case of “Manik Lal Majumdar Vs. Gouranga Chandra Dey” 2005(1) RCR (Rent) 146 to contend that appeal by the tenant is maintainable without payment to the landlord or deposit with the appellate Court all arrears of rent except admitted by the tenant to be due. 12. I have heard both the learned counsel for the parties and perused the available record. 13. Undisputedly, Section 15(1)(b) of the Act empowers the aggrieved person to file an appeal against the order of the Rent Controller before the Appellate Authority within 15 days. There is no condition of depositing any arrears of rent at the time of filing of the appeal. Section 15(2) empowers the Appellate Authority to consider an application for stay of further proceedings during the pendency of the appeal which again does not talk of deposit of entire arrears of rent as a condition precedent. 14. However, in the case of Hoshiar Singh etc. (Supra) the tenant had lost before both the Courts below on the ground of non-payment of arrears rent and sub-letting and had obtained ex parte stay in revision in the High Court. The landlord filed an application for vacation of stay on the ground that the tenant has not paid arrears of rent. The tenant had alleged that they are not liable to pay any rent because they have no relationship with the landlord. The landlord filed an application for vacation of stay on the ground that the tenant has not paid arrears of rent. The tenant had alleged that they are not liable to pay any rent because they have no relationship with the landlord. This Court held that whether there is a relationship of landlord or tenant or not would be decided in the main revision but if the tenant wants equitable relief they must do equity to the landlords and should deposit the entire arrears of rent which they would be entitled to refund in case they succeed. 15. Learned counsel for the petitioners has further submitted that after the decision in the case of M/s Atma Ram Properties (Supra) the landlord is entitled to mesne profits besides the contractual rent. In the said case, nonresidential/ commercial premises measuring 1000 sq. ft. in Connaught Circus, New Delhi was in tenancy of monthly rent of Rs.371.90 paisa. The landlord filed an eviction petition on the ground of sub-letting which was allowed on 19.3.2002. The tenant filed an appeal in which the Appellate Authority stayed the order of eviction subject to the condition of deposit of Rs.15,000/- per month in addition to the contractual rent. The said order was challenged by the tenant by way of revision before the High Court for deposit of conditional amount of Rs.15,000/- per month. The High Court allowed the revision petition and set aside the condition imposed in appeal against which the landlord went to the Supreme Court. In the said case it was held that the right of appeal of the tenant is statutory but the grant of stay is to be dealt with exercising equitable discretionary jurisdiction as the Appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order of eviction. There is every jurisdiction with the Appellate Court to put the tenant on terms by directing it to compensate the landlord for a reasonable amount which is not necessarily the same as the contractual rate of rent. Similar view has been taken by this Court in the case of “Sunder Kumar Vs. Rattan Lal” 2006 (3) RCR (Civil) 291. 16. There is every jurisdiction with the Appellate Court to put the tenant on terms by directing it to compensate the landlord for a reasonable amount which is not necessarily the same as the contractual rate of rent. Similar view has been taken by this Court in the case of “Sunder Kumar Vs. Rattan Lal” 2006 (3) RCR (Civil) 291. 16. It is also pertinent to mention here that while passing the impugned order the learned Appellate Authority has adjourned the case for assessment of the mesne profit. 17. Insofar as the decision in the case of Manik Lal Majumdar and others (Supra) is concerned, it was pertaining to an appeal filed under section 20 of the Tripura Buildings (Lease and Rent Control) Act, 1975 (hereinafter referred to as ‘the said Act’). The issue in that case was as to whether an appeal preferred under Section 20 of the said Act without payment to the landlord or deposit with the Appellate Authority all arrears of rent admitted by the tenant to be due is not maintainable and is liable to be rejected on that ground alone. Section 13 of the said Act provides that no tenant against whom an application for eviction has been made by a landlord under Section 12 shall be entitled to contest the application before the Rent Controller or to prefer an appeal under Section 20 of the said Act against the order of the Rent Controller unless he has paid or pays to the landlord, or deposits with the Rent Controller or the Appellate Authority, as the case may be, all arrears of rent admitted by the tenant to be due, in respect of the building upto the date of payment or deposit, and conditions to pay or to deposit the rent which may subsequently become due, until the termination of the proceedings before the Rent Controller or the Appellate Authority, as the case may be. The question which has been posed in that case was answered to the following effect: “We therefore, of the opinion that on a conjoint reading of all the provisions of the Act and giving fair and reasonable interpretation thereto an appeal under Section 20 of the Act may be filed or presented without payment to the landlord or deposit with the Appellate Authority all arrears of rent admitted by the tenant to be due and it cannot be held to be incompetent. However, it will be open to the Appellate Authority not to proceed with the hearing of the appeal or to pass any interim order in favour of the appellant/tenant until he has paid or deposited all arrears of rent admitted by him to be due, and for such purpose the Appellate Authority shall have all the powers under Sub Sections (2) and (3) of Section 13 of the Act.” 18. Thus, it was held in the aforesaid case that appeal could be filed without depositing arrears of admitted rent but stay should not be granted without deposit of all arrears of admitted rent. Hence, this decision which has been relied upon by the learned counsel for the tenant is not applicable to the facts and circumstances of the present case. 19. Taking an overall view, the facts and circumstances of the case and law, I am of the considered opinion that when the tenant has become entitled for prevailing market rent which is determined as mesne profit for the use and occupation of the demised premises after order of eviction is passed by the Rent Controller and in absence of the payment of the mesne profit as determined by the Appellate Authority the order of stay cannot operate then the tenant cannot retain possession of the demised premises without making payment of the rent which has been determined by the Rent Controller as arrears due to be paid in case of stay by the Appellate Authority. Hence, the question posed in the beginning is hereby answered to the effect that in case of any order of eviction having been challenged before the Appellate Authority by the tenant who has been directed under the order to pay the arrears of rent within a particular period to save his tenancy, the Appellate Authority has no jurisdiction to grant stay of the order of eviction, by deposit of some percentage, of the said amount and the tenant is required to deposit the entire arrears of rent. Accordingly, the revision petition is allowed, impugned order is set aside and the tenant is directed to deposit the amount determined by the Rent Controller minus the amount already deposited. The needful shall be done within four weeks of this order. ------------