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2018 DIGILAW 2458 (JHR)

Pankaj Kumar Modi v. Shankarlal Basaiwala

2018-11-02

AMITAV K.GUPTA

body2018
ORDER : These revision applications have been preferred against the orders dated 22.06.2015. passed by the Senior Civil Judge-I. Dumka in Misc. Case Nos. 3 of 2014, 4 of 2014 and 2 of 2014 respectively, where by the application, filed by the petitioners, under Section 47 of the Code of Civil Procedure challenging the maintainability of the execution cases. have been rejected. 2. For better appreciation. it is necessary to summarize the cases of the petitioners in brief. Petitioners' case is that the opposite parties. herein, filed HRC Cases (H.R.C. Case Nos.23/02-03, 22/02-03 and 21/02-03) before the Rent Controller, under Sections 5 and 6 of the Jharkhand Buildings (Lease, Rent and Eviction) Act, 2000 (hereinafter to be referred as the Act) for determination of the fair rent of the premises in question. Accordingly, the Rent Controller by order dated 25.08.2003, fixed the fair rent of the premises on monthly basis. Being aggrieved, the petitioners preferred H.R.C. Appeal Nos. 12/03-04. 11/03-04 and 13/03-04 before the appellate authority. The Deputy Commissioner by order dated 08.03.2006, dismissed the aforesaid appeals. Thereafter the opposite parties (the landlord) levied Execution Case No. 10 of 2012, Execution Case No. 11 of 2012 and Execution Case No. 12 of 2012 for execution of the decree. The petitioners filed objection petition under Section 47 of the Code of Civil Procedure challenging the execution of the decrees. The Senior Civil Judge-I, Dumka, by the impugned orders rejected the petitioners application. Being aggrieved the petitioners have filed the aforesaid revisions questioning and impugning the legality and propriety of the orders. 3. The common question which arises for determination. in the present revisions. is whether the order passed by the Rent Controller. under Sections 5 and 6 of the Bihar Building (Lease. Rent and Eviction) Control Act. 1882 Now Jharkhand Building (Lease. Rent and Eviction) Control Act. 2000 (for short the Act), determining the fair amount of rent of the premises is executable as a decree? 4. Mr. V. Shivnath, learned senior counsel, has submitted that since subsection (2) of Section 16 of the Act, has been repealed. there fore. it was not mandatory for the tenants to deposit the arrears of rent for preferring the appeal. It is argued that the Deputy Commissioner had committed manifest error in dismissing the appeals, on the ground of non-deposit of the rents. there fore. it was not mandatory for the tenants to deposit the arrears of rent for preferring the appeal. It is argued that the Deputy Commissioner had committed manifest error in dismissing the appeals, on the ground of non-deposit of the rents. without appreciating the fact that sub-section (2) of Section 16 has been repealed and the deposit of rent was not mandatory for hearing of the appeals. It is submitted that the petitioners have preferred revision applications before the Commissioner against the orders of the Deputy Commissioner. Learned senior counsel has referred to the decision rendered in the case of Sunil Kumar Gami v. Jogendra Mahto, 2012 (2) PLJR 659 (Pat), and submitted that the Controller has the power only to determine the fair rent and it cannot order the payment of the rent. It is canvassed that such an order is only declaratory and not a decree capable of being put into execution. 5. It is canvassed that assuming, though not admitting, that even if the said orders are executable then also the execution cases are barred by limitation. It is argued that that the order dated 25.08.2003 has not been passed by a Court. there fore, it is governed by Article 137 of the Limitation Act, 1973, which prescribes three years as the limitation period. It is argued that the Court below has failed to appreciate the fact that the order of the Rent Controller has not attained a finality, in terms of Section 23 of the Act, as the revisions are pending before the Commissioner against the orders passed in appeals. 6. Heard. For proper appreciation of the matter, it will be beneficial to refer to the provisions of Sections 5, 6 and 23 of the Act, 2000, which read as follows :- "Section 5. Determination of fair rent of buildings in occupation of tenants.-(1) When, on application by. the landlord or by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is low or excessive, he shall hold a summary enquiry and record a finding. Determination of fair rent of buildings in occupation of tenants.-(1) When, on application by. the landlord or by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is low or excessive, he shall hold a summary enquiry and record a finding. (2) If on a consideration of all the circumstances of the case including any amount paid by the tenant by way of premium or any other like sum in addition to the rent, the Controller is satisfied that the rent of the building is low or excessive he shall determine the fair rent for such building. Section 6. Determination of fair rent of buildings not in occupation of is tenants.- The Controller may, on his own motion, and shall on the application of the landlord or a prospective - tenant and after making such enquiry, as he may think fit, determine the fair rent for any building not in the occupation of a tenant. Section 23. Execution of Orders of Controller and Commissioner.-Every (order of the Controller passed under this Act, where no appeal against such order has been preferred under Section 24, every order of the appellate authority on appeal under Section 24 and every order of the Commissioner passed in revision under Section 26 shall be executed by the Court as if such orders were a decree passed by such Court." 7. On plain reading of the sections, it is evident that the Sections 5 and 6 of the Act, 2000 provides for determination of fair rent of the building in occupation of the tenant and it enables the landlord or the tenant to file application before the Rent Controller for fixation of the fair rent. The said section enjoins a duty upon the Rent Controller to conduct a summary enquiry and if he has reasons to believe the rent is low or excessive, he has to record a finding as to what should be the fair rent. Sections 24 and 26 of the Act, provides for appeal against the order passed by the Rent Controller and the revision against the order of passed in appeal respectively, before the appellate and revisional authority. Section 2(e) of the Act defines fair rent as determined and related to as prayed under Sections 5, 6 and 7 of the Act. Sections 24 and 26 of the Act, provides for appeal against the order passed by the Rent Controller and the revision against the order of passed in appeal respectively, before the appellate and revisional authority. Section 2(e) of the Act defines fair rent as determined and related to as prayed under Sections 5, 6 and 7 of the Act. The concept of fair rent enshrines the underlying principle that the fair rent is to be understood as rent fair both for the landlord and the tenant. In catena of decisions, it has been observed that the Act is neither a protenant legislation nor a pro-landlord piece of legislation. rather the intent of the Act is to confer benefits to both the parties as well as create obligations upon both the parties. 8. On plain reading of provisions of Section 23 of the Act. it is explicit that all the orders of the Rent Controller and appellate/revisional authorities are capable of being executed by the Court as if such orders were decrees passed by such Court. 9. In a decision rendered by the Division Bench. of this Court, in the case of Amal Kumar Ghosh v. Ramdas & Sons, 2005 (4) JCR 321 , it has been held that an order passed by the Rent Controller fixing fair rent is capable of being executed by the Court as if it was a decree passed by the Court and no separate suit is required to be filed for realizing the rent determined by the Rent Controller. 10. On perusal of the impugned order. it is evidenced that the Court below has considered and discussed the arguments advanced by the parties and assigned cogent reasons that the petitioners' applications were sans merit. It has been mentioned that petitioners had earlier filed W.P. (C) No. 4639 of 2013. but no relief was granted and the writ petition was dismissed. 11. It is abundantly clear that there is no ambiguity in the language used in Section 23 of the Act. The provisions of Section 23 stipulates that such order passed by the Rent Controller is executable as decree of civil Court. Had the legislature intended otherwise. it would have introduced a specific provisions in the Statute to that effect. 12. It is noticed. from the Annexures. The provisions of Section 23 stipulates that such order passed by the Rent Controller is executable as decree of civil Court. Had the legislature intended otherwise. it would have introduced a specific provisions in the Statute to that effect. 12. It is noticed. from the Annexures. that the order dated 25.08.2003 passed by the Controller in HRC cases has already been confirmed by the appellate authority. Admittedly the petitioners have filed revision applications before the Commissioner against the order of the appellate authority. Sub-section (3) of Section 24 of the Act clearly stipulates that an order of the Controller. which becomes final. is not liable to' be questioned in any Court whether in a suit or other proceedings except by way of appeal or revision as provided under Sections 24 and 26 of the Act, 2000. It is pertinent to state that Section 23 of the Act, 2000 does not debar the decree holder from filing an execution of the order passed by the Rent Controller. 13. The upshot of the discussions made hereinabove, make it clear that the order of fixing fair rent by the Rent Controller is a decree in terms of Section 23, accordingly Article 136 of the Limitation Act is attracted and not Article 137. Article 136 of the Limitation Act reads as under :- “136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil Court\Twelve years [When] the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place : Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation." 14. The Court below has considered and discussed this aspect of the question and rightly held that the execution case was not barred by limitation. 15. The Court below has considered and discussed this aspect of the question and rightly held that the execution case was not barred by limitation. 15. So far as the argument advanced by the learned counsel that the repeal of Section 16(2) of the Act does not make it mandatory for the tenant to deposit the rent in preferring the appeal before the appellant authority under Section 24 of the Act is concerned, the said argument is rather misplaced and not tenable in the present revisions for the simple reason that the present revisions are directed impugning the orders passed by the executing Court. The petitioners have admitted that they have preferred revisions before the Commissioner challenging the dismissal of the appeals by the Deputy Commissioner. They can always raise the question regarding applicability of the provisions of Section 16(2) before the Commissioner. 16. It is settled principle that objection application under Section 47 of the CPC can be entertained only when the Court passing the decree is not competent or the decree has become non-executable on promulgation of any new law or the subject-matter of the decree is not identifiable, etc. It is well settled legal position that the executing Court cannot go behind the decree. These aspects have been properly considered and discussed by the Court below. The judgment relied upon by the learned senior counsel is not applicable to the emergent facts of the present cases. Consequently, the impugned orders do not merit any interference by this Court. 17. In the result the above revision applications are, hereby, dismissed. Revision applications dismissed.