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2012 DIGILAW 723 (PNJ)

Ujagar Singh v. Asha Rani

2012-05-16

K.C.PURI

body2012
JUDGMENT K.C.PURI. J. Challenge in this revision petition is to the order dated 20.4.2012 passed by Shri R.C.Godara, Appellate Authority, Yamuna Nagar at Jagadhri vide which the appeal preferred by the tenants-respondents against the order dated 12.12.2009 passed by Shri Vijay Singh, Rent Controller, Yamuna Nagar at Jagadhri was dismissed. 2. The petitioner now respondent has directed eviction petition under Section 13 the Haryana Urban (Control of Rent & Eviction) Act, 1973 against the tenants-respondents for ejectment from the shop No.2 bounded as under :- North : Factory of petitioner South : Metalled road East : Shop No.5 of petitioner. West : Shop No.1 of petitioner. situated at Saharanpur road, Yamunanagar. 3. It has been averred that the petitioner has rented out the shop in question to respondent No.1 in the year 1967 at a monthly rent of Rs.65/-excluding house tax, water and electricity charges. The rent was increased with the mutual consent of the parties at Rs.200/- per month plus house tax and water as well as electricity charges. The petitioner has sought the ejectment of the respondents from the shop in question on the grounds that respondents have not paid rent from May, 1999 to November 1999 amounting to Rs.1400/-. The respondent-tenant has sublet the shop in question to respondent No.2, who is running the agency of Apollo Tyres in the name of style of M/s R.S.Tyres without the consent of the petitioner. Hence the petition. 4. Notice of the petition was given to the respondents who appeared and contested the petition by filing joint written statement admitted the relationship between the parties. They have also denied that they are paying house tax in addition to the rent whereas they tendered the due rent along with house tax. It has been further alleged that respondent No.1 is in actual possession of the shop in partnership. Respondent No.1 has also denied that the shop in question was sublet to respondent No.2. They are running the business since long as they are from one family which the petitioner had never objected. 5. In rejoinder, the petitioner-landlord controverted the pleas of the written reply and reiterated those of the petition. 6. From the pleadings of the parties, following issues were framed :- 1. Whether the respondent no.1 is liable to be ejected from the shop in dispute for non payment of arrears of rent as alleged in the petition ?OPP 2. 5. In rejoinder, the petitioner-landlord controverted the pleas of the written reply and reiterated those of the petition. 6. From the pleadings of the parties, following issues were framed :- 1. Whether the respondent no.1 is liable to be ejected from the shop in dispute for non payment of arrears of rent as alleged in the petition ?OPP 2. Whether the respondent no.1 has sublet the shop in question to the respondent no.2 ?OPP 3. Whether the petitioner is stopped from filing the present application by her own act and conduct and present application is not maintainable ? 4. Relief. 7. The parties have led their respective evidence on the aforesaid issues. After appraisal of the same, the learned Rent Controller, accepted the rent petition and directed the respondent to put the petitioner-landlord into vacant possession of the demised premises within two months from the date of order vide order dated 12.12.2009. 8. Feeling dissatisfied with the order dated 12.12.2009, the tenant-appellant preferred appeal before learned Appellate Authority. The learned Appellate Authority after re-appraisal of the evidence, dismissed the appeal vide judgment dated 20.4.2012. 9. Still feeling dissatisfied with the order dated 12.12.2009 passed by learned Rent Controller, Yamuna Nagar at Jagadhri and order dated 20.4.2012 passed by learned Appellate Authority, Yamuna Nagar at Jagadhri, the present revision petition has been directed. 10. I have heard learned counsel for the petitioners-tenants and have gone through the file of the case. 11. Along with the appeal, an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure (in short – C.P.C.) for placing on record Annexure P-1 copy of order dated 23.11.2006 passed by Rent Controller, Yamuna Nagar at Jagadhri has been filed by the petitioner-tenant. The said order has already been set aside by learned Appellate Authority, Yamuna Nagar at Jagadhri vide order dated 20.7.2009. The proper remedy for the petitioner-tenant was to challenge the order dated 20.7.2009 passed by the Appellate Authority before any appropriate forum. Production of order dated 23.11.2006, which has already been set aside, would not advance the case of the petitioner in any manner. So, application under Order 41 Rule 27 read with Section 151 of the C.P.C. stands dismissed. 12. Production of order dated 23.11.2006, which has already been set aside, would not advance the case of the petitioner in any manner. So, application under Order 41 Rule 27 read with Section 151 of the C.P.C. stands dismissed. 12. Learned counsel for the petitioner has submitted that vide order dated 23.11.2006 passed by Shri Kumud Gugnani, Rent Controller, Yamuna Nagar at Jagadhri, the eviction petition of the landlord was dismissed. Shri D.K.Mittal, learned Appellate Authority, Yamuna Nagar at Jagadhri accepted the appeal preferred by the landlady vide order dated 20.7.2009 and remanded the case for fresh decision. No remand order can be passed in a rent petition in view of Full Bench authority Raghu Nath Jalota versus Romesh Duggal and Anr. reported in AIR 1980 Punjab and Haryana 188. The subsequent order dated 12.12.2009 passed by Shri Vijay Singh, Rent Controller, Yamuna Nagar at Jgadhri under the Haryana Urban (Control of Rent & Eviction) Act, 1973 Yamuna Nagar Jagadhri are illegal and nonest in the eyes of law. It is contended that order of eviction which is without jurisdiction is a nullity in view of authority Kiran Singh and others vs. Chaman Paswan and others AIR 1954 Supreme Court page 340(1). 12. I have carefully considered the said submission but do not find any force in that submission. 13. No doubt in authority Raghu Nath Jalota's case (supra), it has been held that there is no power of remand in the East Punjab Urban Rent Restriction Act, 1949 but the best course for the tenant/petitioner was to challenge the order dated 20.7.2009 vide which the case was remanded back. The counsel for the petitioner is fair enough to concede that the said order has not been challenged in any forum. So, it cannot be said that the order passed after the remand by Shri Vijay Singh Rent Controller, Yamunanagar dated 12.12.2009 and the judgment dated 20.4.2012 passed by Shri R.C.Godara Appellate Authority, are nullity. 14. So far as authority Kiran Singh and others case (supra) is concerned, the point in issue before the Hon'ble Apex Court was that the decree was passed by the Court having no jurisdiction. No such question regarding jurisdiction of the Rent Controller has arisen in the present case. The case was remanded back as material evidence in the shape of Local Commissioner had to be produced. No such question regarding jurisdiction of the Rent Controller has arisen in the present case. The case was remanded back as material evidence in the shape of Local Commissioner had to be produced. The said evidence could have been produced before the Appellate Authority. Even if the tenant would have challenged the order dated 20.7.2009 in that case, the matter would have remitted back to the Appellate Authority and the Rent Controller could have take the additional evidence and could have decide the case. So, it cannot be said that the impugned orders dated 12.12.2009 and 20.4.2012 are nullity merely on the ground of remand order dated 20.7.2009. The landlady has put up a case and that has to be decided. The technicalities cannot be a hurdle in dispensing with the real justice. So, the above said arguments are without any substance. 15. There is concurrent finding of fact recorded by both the Courts below regarding subletting of the rooms. Counsel for the petitioner realized that concurrent finding of fact cannot be challenged in revision and therefore has not raised any arguments regarding those findings. 16. In view of the above discussion, the revision petition is without any merit and the same stands dismissed. 17. No other point has been urged before me. 18. Consequently, the revision petition is without any merit and the same stands dismissed. 19. However, the eviction of the petitioner is in respect of the shop and as such, the tenant has to make alternative arrangement for his business. Consequently, the petitioner is directed to hand over the vacant possession of the demised premises within three months from today. 20. The stay order shall be operative only on payment of arrears of rent within 15 days from today and on payment of monthly rent on or before 10th of every month. 21. A copy of this judgment be sent to the trial Court for strict compliance.