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2019 DIGILAW 310 (JK)

Rattan Lal v. Krishan Lal

2019-06-04

SINDHU SHARMA

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JUDGMENT : Sindhu Sharma, J. 1. A decree for ejectment was passed in the suit titled "Krishan Lal v. Rattan Lal" on 31.12.1997. However, the decree became final only when the Civil Second Appeal filed by the tenant was dismissed by this Court on 26.02.2009. 2. After reconstruction of the shop by the landlord, possession was handed over to the tenant sometimes on 04.08.2010. This is reflected in the order of this Court dated 20.03.2013 passed in Civil Revision No. 107/2010 titled "Krishan Lal v. Rattan Lal". While deciding this petition, the Court observed that the possession of the shop has been handed over to the respondent w.e.f. 04.08.2010, this petition is, thus, rendered infructuous. However, it is made clear that any observation made by the executing court in the impugned orders will not affect the right of the petitioner/landlord in the execution application titled "Krishan Lal v. Rattan Lal" already filed by him in the court of learned Sub-Judge, Reasi to seek fixation of market rent regarding the property in question." 3. Landlord filed an application for fixation of fair rent on 22.02.2012 with the prayer that the judgment debtor may be directed to execute the Rent Deed fixing monthly rent at Rs. 4500/- from the date of delivery of possession of the shop which is 04.08.2010. 4. The objections to this application were filed by the judgment debtor on 26.08.2012 after seeking the number of adjournments. During this period, the decree-holder examined Mohd. Rafiq and Gautam Kumar as witnesses, besides his own statement (Annexure J). 5. The maintainability of the proceedings before the Executing Court has been challenged inter alia on the ground that decree of ejectment was only on the ground of rebuilding, as such, the Executing Court cannot go beyond the mandate of the decree. 6. The Executing Court had exceeded its jurisdiction adversely affecting the rights of the petitioner by acting with material irregularity against the mandate of the Statute. In the copy of the objections filed by the judgment debtor enclosed as Annexure H to this petition, it is pleaded that the Execution Petition is not maintainable in the present form and the execution proceedings are hit by the provisions of the Civil Procedure Code and the Court has no jurisdiction in the matter regarding fixation of fair rent. 7. 7. The proceedings of the Executing Court, however, under Section 8 of the Act, which empower the Controller to fix the fair rent has no application to the premises. 8. In view of Section 13(3) read with its proviso rules out the application of Section 8. Section 13(3) reads as under: "13(3) Where the landlord obtains a decree for ejectment in terms of clause (h) of sub-section (1) of section 11 and the tenant is ejected on the ground that the house or shop is required by him for building or rebuilding, the tenant thereof shall have first right to tenancy: Provided that the tenant shall pay the rent at market rates notwithstanding anything contained in section 8." 9. Learned counsel for the respondent has argued that the fair rent could only be fixed under the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 and not under these proceedings. 10. So the argument that the fair rent had to be determined under Section 8 is not tenable in view of the proviso to Section 13(3). Whether the fair rent can be fixed by the Executing Court. It is not disputed by the parties that the powers of the Rent Controller are exercised by the Sub-Judge, Reasi, who is also the Executing Court. There is no separate post of Rent Controller under the Jammu and Kashmir Houses and Shops Rent Control Act. Since Section 8 is not applicable as noticed above, it is the Executing Court which has to fix the fair rent also. Although the decree should have contained this mandate of law but this omission is only technical and does not take the power to fix the fair rent to avoid multiplicity of litigation. Thus, the objection regarding jurisdiction being exercised by the Executing Court is without substance and therefore, rejected. 11. Since the fair rent is part of the decree in view of the provisions to sub-section (3) of Section 13. It is the mandate of law that the Executing Court should fix the fair rent and this does not require separate adjudication because the question arises under Section 47 of the Civil Procedure Code because all questions arising between the parties to the suit in which decree have been passed has to be determined and decided by the Executing Court. It is the mandate of law that the Executing Court should fix the fair rent and this does not require separate adjudication because the question arises under Section 47 of the Civil Procedure Code because all questions arising between the parties to the suit in which decree have been passed has to be determined and decided by the Executing Court. However, the question arises whether the judgment debtor had approached the Court for fixing the fair rent. 12. It is not disputed that the decree-holder/respondent herein resisted handing over the possession to the judgment debtor on the plea that the fair rent of the shop may be fixed and the judgment debtor may be asked to execute the Rent Deed at Rs. 4500/- per month. This plea was rejected by the Executing Court vide its Order dated 02.06.2010 for the following reasons: "... There is nothing in the decree to reveal that there were any pre-requisite conditions of execution of rent deed or fixation of fair rent before delivering the rebuild shop to the petitioner/applicant. It is settled principle of law that the executing Court cannot go beyond the terms of decree. No doubt the party aggrieved may seek indulgence of the Court to fix the fair rent but when nothing is stated about the same in the decree that cannot be made a ground at this stage to delay the execution of the decree by the non-applicant/decree-holder..." 13. The Executing Court, however, extended the time for completion of pending work of the shop by 16.07.2010 vide order dated 02.06.2010, again vide order dated 16.07.2010, two weeks' time was extended to fix the shutters before delivering the possession and the case was adjourned to 31.07.2010. 14. Be that as it may, the admitted fact is that the decree-holder had applied for fixation of fair rent while claiming Rs. 4500/- as rent, which would be payable by the tenant. The concept of fair rent as envisaged by Section 8 is specifically ruled out because as per the proviso it is the market rent which is to be determined and that is required to be determined by the Executing Court alone and none else. So, it was wrong on the part of the Executing Court, who have not fixed the market rent. 15. So, it was wrong on the part of the Executing Court, who have not fixed the market rent. 15. Contention by the learned counsel for the petitioner is that the Executing Court having executed the decree has exceeded the jurisdiction as it has no jurisdiction to determine the market rent because it has become functus officio and the decree-holder has waived the right to claim market rate of rent after having handed over the possession. However, it is settled law that there can be no waiver or estoppel against a Statute and market rate of rent being mandatory under Section 13(3) of the Act, neither the principle of waiver nor estoppel is attracted. 16. The observation of the Executing Court that it could not go beyond the decree is also preposterous because the decree has to be in accord with the provisions of law. Proviso to Section 13(3) specifically provides that the erstwhile tenant will have the first right of tenancy provided he shall pay rent at the market rate notwithstanding anything contained in Section 8 of the Act. 17. The decree, therefore, has to be read in terms of the proviso to section 13(3). Moreover, the judgment of the trial Court dated 31.12.1997 specifically directed as under: "...defendant shall handover the vacant possession of the suit shop to the plaintiff within two months of this decree and the plaintiff shall handover the rebuilt shop to the defendant within the statutory period of six months, as provided in Section 13 of the Houses and Shops Rent Control Act..." 18. Since the suit has been decreed under Section 11(1)(h) read with Section 13, all the conditions set out under Section 13 of the Act are applicable and therefore, under Section 13(3) under the proviso, the Executing Court is under legal obligation to fix the market rent of the shop which the tenant is obliged to pay to the landlord. This having not been incorporated in the decree of the trial Court or the decree of this Court. Section 47 of the Civil Procedure Code is the only provision under which the Executing Court is empowered to decide the question relating to execution, discharge or satisfaction of the decree. The tenant cannot just enjoy the tenancy rights on the newly built premises without paying the market rate of rent. Section 47 of the Civil Procedure Code is the only provision under which the Executing Court is empowered to decide the question relating to execution, discharge or satisfaction of the decree. The tenant cannot just enjoy the tenancy rights on the newly built premises without paying the market rate of rent. The Executing Court is, thus, rightly proceeding for fixing the market rate of the rent of the shop in question and these proceedings are neither without jurisdiction nor the Court has committed any illegality in recording the evidence, on the contrary the petitioner having participated in the proceedings cross-examined the witnesses or estopped from challenging the proceedings under Section 104 of the Constitution of Jammu and Kashmir. 19. This petition, therefore, has absolutely no merit and even otherwise this petition is an abuse of the process of the court in view of the judgment of this Court in Civil Revision No. 107/2010 decided on 20.03.2013 holding as under: "In view of the fact that the possession of the shop has been handed over to the respondent w.e.f. 04.08.2010, this petition is, thus, rendered infructuous. However, it is made clear that any observation made by the executing court in the impugned orders will not affect the right of the petitioner/landlord in the execution application titled "Krishan Lal v. Rattan Lal" already filed by him in the court of learned Sub-Judge, Reasi to seek fixation of market rent regarding the property in question." 20. Since this Court has already held that the landlord is seeking fixation of market rent, therefore, the petition should not have been filed as it tantamount to the abuse of the process of the Court. 21. This petition has absolutely no merit and is, accordingly, dismissed.