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2015 DIGILAW 470 (HP)

Manjeet Singh v. Chiter Lekha

2015-05-06

SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, Judge. (Oral) The instant revision petition has arisen against the impugned order rendered on 4th February, 2015 by the learned Civil Judge (Junior Division), Court No.2, Poanta Sahib, whereby, it dismissed the objections preferred during the pendency of the execution petition by the judgment debtor/petitioner herein. 2. In a civil suit for recovery of possession of the demised premises instituted by the decree holders/respondents against the petitioner herein/judgment debtor, the learned trial Court rendered a decree of possession in favour of the decree holders/respondents. The decree of eviction of the petitioner herein from the demised premises rendered in favour of the decree holders/respondents by the learned trial Court was affirmed by the learned Additional District Judge, Sirmour at Nahan. RSA No.7 of 2013 was preferred against the concurrent decrees of eviction of the petitioner herein from the demised premises. In the RSA aforesaid, the fate of the concurrent decrees remained unaffected. In other words, the decrees of eviction of the tenant/petitioner herein from the demised premises, rendered by the learned trial Court as well as by the learned Additional District Judge, Sirmour stood affirmed in second appeal. The judgment debtor/petitioner herein, during the pendency of the execution petition laid before the executing Court at the instance of the decree holders/respondents herein for execution of the decree of eviction of the petitioner herein from the demised premises, instituted objections, therein spelling out the factum of renewal of tenancy qua the demised premises constituted by the fact of the decree holders receiving from the judgment debtor rent in the quantum spelt out in the objections. The learned executing Court was constrained to discountenance the objections. The learned executing Court was constrained to discountenance the objections. The petitioner herein stands aggrieved by the order rendered by the learned executing Court, whereby, his objections stood dismissed on the score that with the said plea of recreation or renewal of tenancy qua the demised premises constituted by the petitioner herein/tenant purportedly depositing rent qua the demised premises and its having come to be accepted by the landlords/decree holders stood discountenanced or rejected by this Court while deciding RSA No.7 of 2003, on the score of its constituting payment by the petitioner herein/judgment debtor to the respondents/decree holders, towards use and occupation charges, for unlawful user of the demised premises qua which he had suffered a decree for eviction, the subsequent tendering of purported rent for purported renewal of or recreation of tenancy qua the demised premises ought to be also construed, to be constituting, their apportionment/defrayment towards use and occupation charges of the demised premises, at the instance of the petitioner herein/judgment debtors. Obviously, the decree of eviction of the petitioner herein/JD from the demised premises has attained conclusiveness or finality. Uncontrovertedly, the petitioner herein/JD is in arrears of rent of Rs.72,000/- since his having come to be declared by the judgments and decrees of the learned trial Court and the learned Additional District Judge and affirmed by this Court to be in unlawful possession thereof. The factum of the petitioner herein having concerted to renew or recreate tenancy qua the demised premises by his act of purportedly tendering rent to the decree holders, which act was construed by this Court to be rather constituting payment towards use and occupation charges as well as towards the arrears of rent in which the petitioner herein had fallen, is a tenable view of this Court which necessitated reverence by the executing Court which reverence has been begotten as apparent on a reading of the impugned order. Even though subsequent to the adjudication of RSA No.7 of 2013, the petitioner herein has re-attempted and re-concerted to create and renew tenancy by his taking to deposit/tender rent to the decree holders, yet a similar re-attempt on his part, is to be discountenanced for the very same reason as previously adopted by this Court, especially while its discountenancing the initial attempt made by the petitioner herein/JD that any such act or attempt to renew or recreate tenancy qua the demised premises especially when he is in arrears of rent, as also, has omitted to defray to the petitioner the concomitantly necessary use and occupation charges since the time his tenancy stood terminated and he was in unlawful occupation thereto, would constitute such deposit/tender as defrayment of the requisite use and occupation charges since the termination of his tenancy and his being concomitantly in unlawful possession of the demised premises. Preponderantly, the effect of the omissions in the objections to the execution of the decree of eviction of the petitioner herein from the demised premises comprised in theirs omitting to spell out the mode and manner of his tendering rent in purported renewal or reinvention of his tenancy qua the demised premises, is of its deterring this Court to conclude that the amount, if any, paid and its constituting rent towards the demised premises, was a unilateral deposit by the petitioner/judgment debtor, especially when its deposit has not been demonstrated by any material existing, before the learned executing Court which ought to have been portrayed therein at the earliest, to have come to be consensually accepted by the decree holders/landlords, for hence impelling this Court to render an apt and tenable conclusion that given, hence, the eruption of a consensus ad idem inter se them a fresh tenancy qua the demised premises was constituted or was hence created in favour of the petitioner herein/judgment debtor. 3. 3. In aftermath, the view as had been taken by this Court while deciding RSA No.7 of 2013 on 19.06.2013, qua the amount, if any, purportedly deposited as rent and its constituting renewal and reinvention of tenancy qua the demised premises in favour of the petitioner ought to be construed as defrayment towards the liability of the petitioner herein towards use and occupation charges for the period he remained in unlawful possession of the demised premises since his tenancy had come to be terminated by the decrees of both the learned Courts below which stood affirmation uptill this Court, can also yet be readopted as tenably done by the learned executing Court, in construing any payment subsequent to the rendition of the judgment in RSA No.7 of 2013 constituting defrayment to the decree holders by the petitioner/judgment debtor of his enjoined liability towards use and occupation charges, as also appropriation towards the arrears of rent in which the petitioner herein had fallen. 4. The learned counsel appearing for the petitioner herein has contended that even though the petitioner has not pleaded with specificity the mode and manner of his tendering rent to the landlord/respondents and its constituting rent towards the demised premises and its being construable to be renewal of tenancy qua the demised premises in his favour, yet the learned executing Court ought to have afforded an opportunity to him to lead apposite evidence, by striking an apposite issue in this regard to facilitate proof at his instance that the rent qua the purported renewal of tenancy was not unilaterally deposited by him by remitting the same to the saving bank account of the decree holders, rather was consensually accepted by the decree holders, in the face whereof a consensual relationship of landlord and tenant has come into existence. Nonetheless, the said submission cannot now be agitated before this Court especially, when any cogent material portraying the factum of its consensual acceptance by the decree holders was withheld by the petitioner, whereas, it ought to have found existence at the time of institution of the objections, by the judgment debtor. Nonetheless, the said submission cannot now be agitated before this Court especially, when any cogent material portraying the factum of its consensual acceptance by the decree holders was withheld by the petitioner, whereas, it ought to have found existence at the time of institution of the objections, by the judgment debtor. Preeminently, when the pleadings in the objections, omits to spell out with specificity, the mode and manner qua tendering of rent by him to the decree holders and its constituting renewal of tenancy, as a sequel, lack of specificity in the apposite pleadings qua the mode and manner of tendering of rent by him to the decree holders cannot, hence, at this stage before this Court permit him to contend for the striking of an apposite issue qua the mode of its deposit by the executing Court nor permits him to afford direction to the learned executing Court to permit him to adduce evidence thereon, especially when both, the striking of issues beyond pleadings, as also adduction of evidence thereon, would tantamount to, both the striking of issues beyond pleadings as also affording the legally impermissible relief of adduction of evidence when neither portrayed nor occurring in the pleadings, to be unwarranted. Besides, when no material accompanied the objections, to prima facie demonstrate that the rent qua the demised premises was tendered to the decree holders, hence, was accepted by them, constrains a conclusion that no material apposite to the aforesaid contention was earlier in possession of the petitioner herein, besides in the making of the said submission, it appears that the counsel for the petitioner herein is improving upon his case which endeavour is estoppable by the factum of omissions aforesaid comprised in pleadings and lack of adduction of apposite material at the earliest, before the learned executing Court at the time of institution of objections. 5. Consequently, I find no merit in this petition and it is dismissed accordingly. All pending applications also stand disposed of. Records be sent back forthwith.