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2014 DIGILAW 1369 (PNJ)

Karan Sharma v. H. S. B. Estates Private Limited

2014-09-30

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- Provisional assessment of rent in a petition for eviction filed by respondent No.1-landlord under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter mentioned as the Act) which is pending adjudication before the Rent Controller, Chandigarh, forms genesis of this revision petition, by one of the tenants. 2. It is claimed that tenancy is between the respondent-landlord and the firm M/s Khayat Coffee Lounge, Chandigarh and there is no relationship of landlord and tenant between the respondent-landlord and interalia the petitioner. It is claimed that only partnership firm M/s Khayat Coffee Lounge has been making payment of rent which was being accepted from the very inception of tenancy i.e. 1.7.2008. It is claimed that earlier in partnership firm M/s Khayat Coffee Lounge, the petitioner and one Smt. Krishna Bansal were partners but later, on exit of Smt. Krishna Bansal, a fresh partnership deed came into existence between the petitioner and Smt. Neelam Kashyap. It is claimed that when neither the partnership firm M/s Khayat Coffee Lounge is a party nor its partners have been impleaded, in absence of relationship of landlord and tenant between the parties to the eviction petition, no assessment of provisional rent could have been made. 3. Counsel for the respondent-landlord, on the other hand, has urged that the tenancy had never been between the respondent-landlord and partnership firm M/s Khayat Coffee Lounge but it was between the landlord and the tenants i.e. the petitioner and Smt. Krishna Bansal jointly. In this regrd, reference has been made to lease deed dated 7.5.2008. It is urged that if the two co-tenants had later entered into any partnership and that too merely as a camouflage to deny the relationship of landlord and tenant, such arrangement does not bind the landlord. Asserting validity and legality of the impugned order, dismissal of the revision petition has been sought. 4. Counsel for the parties have been heard while going through the impugned order and grounds of revision while appreciating other attending facts and circumstances. 5. Counsel for the petitioner has urged that when the landlord had been accepting the rent from the partnership firm as a tenant, even though the tenancy had been started in favour of the tenant as an individual, firm becomes the tenant by implication. 5. Counsel for the petitioner has urged that when the landlord had been accepting the rent from the partnership firm as a tenant, even though the tenancy had been started in favour of the tenant as an individual, firm becomes the tenant by implication. Support has been sought from Harshvardhan Chokkani Versus Bhupendra N. Patel 2002(1) RCR (Rent) 349 (SC); Dass Kumar and others Versus Tilak Raj and another, [2009(3) Law Herald (P&H) 2278] : 2009(2) RCR (Rent 229 (P&H) and M/s Amar Nath and others Versus Smt. Mehman Wanti 1973 RCR (Rent) 607 (J&K). 6. Counsel for the landlord, on the other hand, has urged that there is neither permission nor consent of the landlord in bringing of partnership jointly between the co-tenants much less for its subsequent changes brought about by them jointly. Plea of the petitioner-tenant (respondent No.1 in the eviction petition) in his written statement (Annexure P-7) that the tenancy came into existence in favour of M/s Khayat Coffee Lounge on 1.7.2008 and that there is no relationship of landlord and tenant between respondent M/s H.S.B. Estates Private Limited (landlord in the eviction petition) is clearly against record. 7. During the course of arguments, it has not been disputed by the petitioner that tenancy between the respondent-landlord M/s H.S.B. Estates Private Limited (for short, the landlord) on the one hand and petitioner and respondent No.2 Smt. Krishna Bansal joinly, on the other hand, had started vide lease deed dated 7.5.2008. Thus, the tenancy had started between the landlord and the petitioner as a co-tenant with Smt. Krishna Bansal. If later the co-tenants entered into a partnership and conducted their business in the name & style of M/s Khayat Coffee Lounge which partnership was further changed on 15.8.2008 bringing yet another partnership deed, the landlord does not become a party to such nuance of the tenants to hoodwink the landlord denying the relationship of landlord and tenant between the parties with a view to deny payment of rent. 8. It is a clear case where the camouflage of partnership was brought into existence by the petitioner to be used as a handle for denying the relationship of landlord and tenant between the parties in order to avoid liability to make payment of rent. 8. It is a clear case where the camouflage of partnership was brought into existence by the petitioner to be used as a handle for denying the relationship of landlord and tenant between the parties in order to avoid liability to make payment of rent. The Rent Controller citing Shri Sai Enterprises Versus M/s Gallant Arcade Pvt. Ltd., [2013(3) Law Herald (P&H) 2552] : 2013(3) RCR (Civil) 582 (P&H) has rightly come to the conclusion that when facts speak for themselves and show the malafide intention on the part of the tenants in creating a veil of partnership in order to avoid their liability to pay arrears of rent and to continue in occupation of the property without payment of future rent as well, such plea cannot be accepted. In these circumstances, when the device of partnership created by the petitioner has been used only as a contrivance to deny the relationship of landlord and tenant between the parties as also to deny making payment of rent, arrears of which as mentioned in the impugned order have crossed over Rs.1.5 crores, such plea is not acceptable. Sequelly, authorities cited as Ramanand Shastri Versus Gian Singh 2003(1) RCR (Rent) 735 (P&H) and Yashpal Singla Versus Vijay Kumar 2004(1) RCR (Rent) 718 (P&H) to the effect that the Rent Controller is not required to pass an assessment order where there is dispute regarding relationship of landlord and tenant between the parties, in the given facts and circumstances of the case, do not support the cause of petitioner-tenant. 9. Looking from another angle, this is the third round of litigation between the parties. In the earlier two petitions preferred by the respondentlandlord, one on 23.11.2010 and other on 28.1.2011, the petitioner-tenant in his written statement preferred therein had clearly admitted the relationship of landlord and tenant between the parties. Observations of the Rent Controller on this count are reproduced as below: “Further the petitioners have brought on record the earlier rent petitions filed by the present petitioner against the present respondents on 23rd November 2010 and 28th January, 2011 titled as ‘H.S.B. Estate Vs. Karan Sharma and others’. The written statement has been filed by the respondent No.1 in those petitions, where in para No.1 and 2 of their reply, the relationship of landlord and tenant is admitted by the respondents. Karan Sharma and others’. The written statement has been filed by the respondent No.1 in those petitions, where in para No.1 and 2 of their reply, the relationship of landlord and tenant is admitted by the respondents. It is pertinent to mention that the reply has been filed in the second petition by the respondent No.1 on 14th March 2013, which is only about a year ago.” 10. Further observation of the Rent Controller in para No.6 of the impugned order in its relevant portion with approval is reproduced as below: “The respondent appears to be blowing hot and cold from the same mouth because one year ago he admitted petitioner to be his landlord while now he is denying the relationship. If the tenancy was created in favour of firm in the year 2008 by implication, then why respondent admitted the petitioner to be his landlord in the year 2013. This is nothing but an attempt on the part of respondent to delay the payment of rent which has already crossed Rs.1.5 crore mark. The law is very clear that if the respondent fails in making the payment of provisionally assessed rent in time, then his immediate eviction will take place. So to avoid this from happening and to gain some more time, the relationship of landlord and tenant is sometimes denied by the respondent especially in the cases where large arrears have accrued as is the present case. The intention of the respondent in this petition is malafide and he wants to run away from making the payment of rent which is contrary to the spirit of the Rent Act and such an evasive denial of relationship cannot become hindrance in the path of court to provisionally assess the rent.” 11. Plea of the petitioner-tenant referring to lease deed dated 7.5.2008 (making mention of which has completely been omitted in his written statement) has urged that the said lease deed is for 3 years and that though the rent in the concluding year of tenancy was fixed as Rs.2,62,440/-, in the last month of tenancy, it was raised to Rs.4 lacs per month and thus, the same is in the nature of a penalty with a view to dissuade the tenant to continue in the possession of the premises as a tenant holding over. Reference has also been made to Section 7 of the Act which reads as under: “7. Fine or premium not to be charged for grant, renewal or continuance of tenancy.-- (1) No landlord shall in consideration of the grant, renewal or continuance of a tenancy of any building or rented land require the payment of any fine, premium or any other like sum in addition to the rent. (2) Nothing in this section shall apply to any payment under any subsisting agreement entered into before the 1st day of January, 1939.” 12. This plea had neither been taken in the written statement filed by the petitioner-tenant to the present eviction petition nor in the earlier two eviction petitions which were filed against the tenants. 13. Counsel for the respondent-landlord has urged that this plea has been raised merely with a purpose to delay and dilate the matter whereas the lease deed being registered one, there is no dispute about the conditions therein. Support has also been sought from Smt. Navjeet Chadha and others Versus Ravinder Sandhu, [2012(2) Law Herald (P&H) 977] : 2012(2) PLR 489 (P&H) wherein it was held that when such condition of enhanced rent as stipulated in the lease deed has not been challenged in the written statement as a penal provision, the protection of Section 7 of the Act is not available to the tenant. Sequelly, the authorities cited as Balwant Kaur and others Vs. Tilak Raj Gupta and others 1986(1) Rent Control Report 110 (P&H) and Behari Lal Gokleney Versus Ved Parkash and another 1979(1) Rent Control Reporter 569 (P&H) cited by the learned counsel for the petitioner that condition of rent for the last month of the tenancy settled as Rs.4 lacs whereas in the previous month, the same was Rs.2,64,440/- is penal in nature, in the facts and circumstances of the case do not come to the rescue of the petitioner-tenant. 14. The Rent Controller has very deftly handled this aspect and balancing the scales between the rival claims of the parties, has correctly passed the impugned order. 15. Keeping in view the totality of facts and circumstances, no ground is made out to interfere with the impugned order dated 27.8.2014 and affirming the same, this petition being without any merit, is dismissed. --------------------