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2014 DIGILAW 1624 (PNJ)

Bal Mukand Aggarwal v. Sushma Mittal

2014-11-26

SURINDER GUPTA

body2014
JUDGMENT Mr. Surinder Gupta, J.: - The revision petitioner suffered an order of ejectment from the demised premises on his failure to deposit the rent as assessed by the Rent Controller vide order dated 20.05.2014 which reads as follows:- “Heard on the question of assessment of provisional rent. Ld. counsel for the petitioner argued that petitioner is owner of the premises mentioned in the heading of the petition and they purchased the said premises vide different sale deeds. Mohinder Kumar father of respondents No.1 & 2 and respondent No.3 took the premises shown in red colour on rent from its previous owner several years ago for their business purposes as they were running their firm in the premises. After the purchase of the property by the petitioner, Mohinder Kumar and respondent No.3 continued the tenancy and rate of rent was settled between the parties as Rs.2500/- per month which was enhanced from time to time and at present the rate of rent is Rs.4000/- per month. On the other hand counsel for respondent No.3 argued that Sanjay Singla and Arun Singla have been wrongly joined in the petition as respondents No.1 & 2. The demised shop was never let either to respondents No.1 & 2 or their father Mohinder Kumar. The shop in dispute was let to Bal Iron and Steel Co. Iron Merchant and Commission agent Mandi Gobindgarh through its proprietor Bal Mukand Aggarwal respondent No.3 in the year 1963 by its owner at the rate of Rs.400/- per annum and since then respondent No.3 is in possession of shop in question from 01.04.1963 to the month of 31.3.1990. Heard. Burden to prove the rate of rent is upon the petitioner. But no rent deed has been produced by the petitioner. On the other hand it is admitted by the petitioner that respondents are their tenants. Hence in the absence of any document regarding tenancy it cannot be presumed that the shop in question was let out to respondent at the rate of Rs.2500/- per month and thereafter same was enhanced from Rs.2500/- to 4000/- per month. On the other hand it is admitted by the petitioner that respondents are their tenants. Hence in the absence of any document regarding tenancy it cannot be presumed that the shop in question was let out to respondent at the rate of Rs.2500/- per month and thereafter same was enhanced from Rs.2500/- to 4000/- per month. On the other hand contention of Ld counsel for respondent that rate of rent was Rs.400/- per annum is also not acceptable because in these days, the rate of market value of everything is going increase day by day and Rs.400/- is not sufficient for the landlord to survive, who has let out the shop to the respondent. So in view of present market rate, rate of rent is assessed as Rs.1000/- per month. On the other hand payment of rent is required to be establish by the respondent. As per record placed on file by the respondent, he paid the rent at the rate of Rs.400/- per annum to the previous owner and receipts were also issued by previous owner in favour of respondent No.3 but the respondent no.3 also admits in his reply as well as in application dated 16.4.2014 that he had not paid rent after 01.04.1990 to the previous landlord nor the same has not been accepted by the previous landlord. So there is no dispute regarding the time of arrears of rent. So keeping in view the abovesaid discussion, the provisional rent is hereby assessed at Rs.1000/- per month with effect from 01.04.1990 till 01.05.2014 alongwith interest @ 6% P.A. Costs of petition is assessed Rs.1000/-. However, anything stated or observed above, shall have no bearing on the ultimate decision of the petition on merits. The calculation of provisional rent is as under:-. rent 1000 X 288 months Rs.2,88,000-00 Rate of intt. 2,88,000 X 288 +1 Rs.2,07,360.50 400 Cost of petition Rs. 1000-00 ------------------------------ Total Rs.4,96,360.50 P.” ------------------------------ 2. The perusal of above order reveals that the respondentslandlord sought the ejectment of the revision petitioner from demised premises claiming the settled rent @ Rs.2,500 per month, which was enhanced from time to time and was @ Rs.4,000 per month at the time of filing of the petition. The petitioner-tenant claimed the tenancy in the demised premises @ Rs.400 per annum. The petitioner-tenant claimed the tenancy in the demised premises @ Rs.400 per annum. It was alleged that the shop in dispute was let out to Bal Iron and Steel Company, Iron Merchant and Commission Agent, Mandi Gobindgarh through its proprietor Bal Mukand Aggarwal (revision petitioner) in the year 1963 by owner of premises Smt. Shanti Devi, who had been receiving rent @ Rs.400 per annum from 01.04.1963 to 31.03.1990. The payment of the rent was duly reflected in the account books of the company. It was denied by the petitioner-tenant that the rent was ever fixed @ Rs.2,500 per month and thereafter enhanced to Rs.4000 per month. 3. The Rent Controller vide order dated 20.05.2014, did not accept the plea of respondents-landlord that the rate of rent was Rs.2,500 per month and thereafter enhanced to Rs.4000 per month but at the same time, did not accept the documents placed on file by petitioner-tenant regarding the payment of rent and assessed the provisional rent @ Rs.1000 per month, in view of present market rate. 4. The application seeking the recall of the order filed by the petitioner-tenant was declined on 08.07.2012 and on the same day, the order was passed directing petitioner-tenant to hand over the vacant possession of the demised premises to the respondent-landlord. The appeal filed by petitioner-tenant met with no success and was dismissed with the observation that middle path has been chosen by Rent Controller while assessing the provisional rent. 5. I have heard learned counsel for the parties and have perused the record with their assistance. 6. Learned counsel for the revision-petitioner has argued that there is patent illegality in the impugned order of Rent Controller and Appellate Authority. The Rent Controller committed grave error of law while ignoring the fact that the previous landlord had admitted the rate of rent @ Rs.400 per annum and also receipt issued to petitioner-tenant for the payment of rent. There was no basis for Rent Controller to assess the rent @ Rs.1000 per month, which was beyond pleadings. The Appellate Authority also committed grave error of law while describing the attempt of Rent Controller assessing provisional rent by describing the same as a middle path. Learned Appellate Authority has also taken into account extraneous material not related to the factum of assessment of rent, like the photographs taken by the Local Commissioner, pathetic state of the demises premises etc. Learned Appellate Authority has also taken into account extraneous material not related to the factum of assessment of rent, like the photographs taken by the Local Commissioner, pathetic state of the demises premises etc. Learned counsel for the petitioner-tenant has not disputed the applicability of the observations in case of Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corporation 2002(5) SCC 440 and observations of the Hon’ble Supreme Court that on the failure of the tenant to pay the rent assessed by the Rent Controller, an order of eviction shall follow. He has argued that the challenge before the Appellate Authority was regarding the legality and validity of the order of the Rent Controller assessing the provisional rent. The Appellate Authority instead of looking into the fact that assessment of rent was whimsical, based on no document, ignored the illegality of the order of the Rent Controller by appreciating the attempt of the Rent Controller while assessing the arrears of rent as ‘middle path’ while ignoring the document placed on file and admission of previous landlord. 7. Learned counsel for the petitioner-tenant has further argued that the provisional rent payable by the tenant was to be assessed on the basis of the pleadings of the parties and the documents placed on file. In this case, there was admission of the previous landlord regarding the rate of rent and receipt issued. There was no occasion for the Rent Controller to assess the rent at 30 to 35 times higher than the agreed rate. 8. Learned counsel for the respondents-landlord has argued that order of Rent Controller dated 20.05.2014 making the assessment of provisional rent, interest and costs, was challenged before this Court but in the meanwhile, the ejectment order dated 08.07.2014 was passed and the Civil Revision was withdrawn. Once the Rent Controller had assessed the provisional rent payable, the only option before the tenant was to make the payment and then contest the assessment of rent. The Rent Controller as well as the Appellate Authority has rightly follow the dictum of law as laid down by the Hon’ble Supreme Court in case of Rakesh Wadhawan (supra). 9. The question which arises for determination in this revision petition is whether the Rent Controller can travel beyond pleadings and the documents produced on file by either party while making provisional assessment of rent. 9. The question which arises for determination in this revision petition is whether the Rent Controller can travel beyond pleadings and the documents produced on file by either party while making provisional assessment of rent. To find the answer to this question, it will be appropriate to make a reference to the observations of Hon’ble Supreme Court in para 25 of Rakesh Wadhawan’s case (supra), which read as follows:- “What follows from the abovesaid discussion is that the proviso to clause (i) of sub-section (2) of Section 13 must be read as obliging the Controller to assess, by means of passing an order, the arrears of rent, the interest and the cost of litigation all the three, which the tenant shall pay or tender on the first date of first hearing of the main petition following the date of such assessment by Controller. Such order based on an opinion formed prima facie by perusal of the pleadings and such other material as may be available before the Controller on that day would be an interim or provisional order which shall have to give way to a final order to be made on further enquiry to be held later in the event of there being a dispute between the parties calling for such determination.” 10. A perusal of the order of Rent Controller dated 20.05.2014 reflects that there were two divergent plea of rate of rent. The tenant was claiming the rate of rent @ Rs.400 per annum and further that he has paid the rent at this rate from 01.04.1963 to 31.03.1990 to the previous landlord from whom respondents No.1 and 2 have purchased the demised premises. The petitioner-tenant placed on record the documents relating to the payment of rent at the said rate to the previous owner, admission made by the landlord before the House-tax Sub Committee on 26.03.1999 that the rate of rent was @ Rs.400 per annum. 11. On the other hand, respondents No.1 and 2-landlord, who claimed the rent @ Rs.2,500 per month, later enhanced to Rs.4000 per month, failed to produce any document to support their plea. The Rent Controller rejected their contention and rightly so, but while coming to the contention of petitioner-tenant, the Rent Controller instead of looking into the unrebutted document at that stage, just had gone astray while observing as follows:- “..................... The Rent Controller rejected their contention and rightly so, but while coming to the contention of petitioner-tenant, the Rent Controller instead of looking into the unrebutted document at that stage, just had gone astray while observing as follows:- “..................... On the other hand payment of rent is required to be establish by the respondent. As per record placed on file by the respondent, he paid the rent at the rate of Rs.400/- per annum to the previous owner and receipts were also issued by previous owner in favour of respondent No.3 but the respondent no.3 also admits in his reply as well as in application dated 16.4.2014 that he had not paid rent after 01.04.1990 to the previous landlord nor the same has not been accepted by the previous landlord. ................................................” 12. While assessing the rate of rent payable by a tenant to the landlord, the Rent Controller has to look into the terms of rent settled in between the parties. If the tenancy is oral, the pleading and the other evidence that has come on record. Learned Rent Controller has assessed the provisional rent payable by the petitioner-tenant in this case as if he is assessing either the mesne profits or the fair rent. 13. The Rent Controller was required to be very careful while assessing the provisional rent payable by a tenant. As observed in the case of Rakesh Wadhawan (supra), such order should be based on the perusal of the pleadings and such other material available on record on the day, the order calling upon the tenant to pay the provisional rent, is passed. What could be the fair rent or prevailing rent in the market, is alien to the material required to be looked into while making the provisional assessment of rent, interest and costs, as per the proviso to Clause (i) of Sub-Section 2 of Section 13 of East Punjab Urban Rent Restriction Act, 1949. 14. The view taken by the Appellate Authority while approving the assessment of provisional rent by the Rent Controller terming it as a middle path, which was neither based on pleadings nor the material on record, is not sustainable. There was no basis for the observations of the Appellate Authority that the amount of rent @ Rs.400 per annum was too meager to accept it to be true particularly by ignoring the documents and admission of previous landlord. There was no basis for the observations of the Appellate Authority that the amount of rent @ Rs.400 per annum was too meager to accept it to be true particularly by ignoring the documents and admission of previous landlord. The Appellate Authority realized that in 1960s and 1970s, the rent may be @ Rs.400 per annum but it could not be so in the 1990s or 2000 and thereafter. When the landlord-respondents have failed to place on file any document to show the revision of rent at any point of time, there was no reason to discard the plea of the tenant with regard to rate of rent which is supported by the admission of the previous landlord. The report of the Local Commissioner regarding the status of the building was extraneous matter which Appellate Authority had looked into while deciding merits of the order of Rent Controller ordering the ejectment of the revision petitioner due to non-payment of provisional rent assessed. 15. The above discussion leads to a conclusion that the Rent Controller cannot travel beyond the pleadings and documents produced on file by either party while assessing provisional rent. The Rent Controller may ignore any document or pleadings not relevant while assessing the provisional rent by giving reasons but in this case Rent Controller has ignored the documents, evidence and plea of tenant without any plausible reasoning. 16. As a sequel of my discussion above, I find merits in this revision petition. The revision petition is accepted. The orders of the Rent Controller as well as Appellate Authority are perverse and suffer from legal infirmities as such, are set aside. The case is remanded to the Rent Controller, Amloh, who shall take up the file of the rent case No.19/19.11.2013 make fresh assessment of provisional rent, interest and costs payable by the tenant, as per the pleadings and documents on file and then proceed further in accordance with law. Parties are directed to appear before the Rent Controller, Amloh on 15.12.2014. ---------0.B.S.0------------