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2021 DIGILAW 189 (PNJ)

Arun Kumar v. Pushpa Devi

2021-01-21

ANIL KSHETARPAL

body2021
JUDGMENT Anil Kshetarpal, J. - By this order, Civil Revision No.3654 of 2008, 8480 of 2010, 3598 of 2012, 1238, 1241, 1252 and 1255 of 2019 shall stand disposed of. Counsel for the parties are ad-idem that these revision petitions can conveniently be disposed of by a common order. Civil Revision No.8480 of 2010 has been filed by the landlord, whereas remaining petitions have been filed by the tenants. In all the revision petitions filed by the tenants, both the courts below have ordered their eviction on the ground that the building has become dilapidated and is unfit and unsafe for human habitation. 2. In Civil Revision No.8480 of 2010, the alleged landlords have prayed for the fixation of fair rent under Section 4 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the 1973 Act'). In the aforesaid petition, the learned Rent Controller fixed the fair rent, whereas the learned Appellate Authority after fixing the fair rent, accepted that appeal while observing that the petition filed before the Rent Controller was not maintainable as there was no landlord-tenant relationship. 3. This court has heard learned counsels for the parties at length and with their able assistance gone through the paper books as well as the record requisitioned. 4. Learned counsels for the tenants have vehemently submitted that the eviction petitions, filed by 2 petitioners i.e. Surender Kumar in person as well as Shri Krishan Bhagwan Bhawan (hereinafter referred to as 'the Bhawan') through its Manager/Mohatmim Surender Kumar, are not maintainable. They submitted that the property in question is owned by a registered trust, namely, Shri Krishan Bhagwan Bhakti Ashram Trust (hereinafter referred to as 'the Trust') and therefore, the eviction petitions filed before the Rent Controller were not maintainable. It has further been contended that no doubt, the tenants took the premises on rent from late Smt. Maya Devi, who was Mohatmim/Manager of the Bhawan, however, she has no right to execute the Will in favour of Surender Kumar. It was further contended that a previous petition i.e. Rent Petition No.8 of 03.04.2004 filed by the Bhawan and Surender Kumar against Sarda Devi was dismissed on 26.11.2005 under Order 17 Rule 3 CPC. It was further contended that a previous petition i.e. Rent Petition No.8 of 03.04.2004 filed by the Bhawan and Surender Kumar against Sarda Devi was dismissed on 26.11.2005 under Order 17 Rule 3 CPC. They submitted that in the aforesaid petition, the relationship between the Bhawan as landlord and the tenant-Sharda Devi was denied and disputed and therefore, once the aforesaid eviction petition has been dismissed on this ground under Order 17 Rule 3 CPC, therefore, subsequent petitions are hit by the doctrine of resjudicata. They further submitted that the findings of the courts below to the effect that the building has become unfit and unsafe for human habitation are erroneous. 5. Per contra, learned counsel for the landlords have contended that the subsequent petitions would not be barred as the previous petition was not decided on merits because in that eviction petition the landlord had failed to lead evidence. They further contended that in fact, the Trust along with its trustees did file a suit for declaration by impleading Surender Kumar and various other tenants as defendants. Plaintiff no.1 and 2 withdrew the suit on 08.01.2008, whereas qua plaintiff no.3, the suit was dismissed in default on 16.01.2008. Hence, they submitted that after the dismissal of the aforesaid suit, the tenants cannot dispute the relationship particularly when the trustee(s) have admitted the status of the Bhawan as the landlord of the rented premises. They further submitted that the eviction proceedings under the 1973 Act, are summary in nature and CPC, as such, is not applicable. 6. Now let's analyze the arguments of learned counsel for the parties. 7. It may be noted here that urban tenancies in the State of Haryana are governed by the 1973 Act. Section 2(c) defines the word 'landlord' which reads as under:- "landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter provided, and every person from time to time deriving title under a landlord." 8. It is apparent from a bare reading of the definition of the word landlord that the words 'landlord' and 'owner' are not synonymous for the purpose of the 1973 Act. The word 'landlord' as defined in the Act takes within its purview such other person, who either himself is entitled to receive rent or entitled to receive the same on behalf of someone else. The landlord also includes trustee, guardian, receiver, executor or administrator for any other person. It also includes a tenant who has sub-let any building or rented land. Every person who derives title under the term 'landlord', from time to time, is also included in the definition of landlord. Thus, it can be safely stated that the word 'landlord' is not restricted to the ownership but includes within its sweep a broad spectrum of persons. In these cases, both the courts have correctly held that Smt. Maya Devi, had leased out the properties to the tenants and they have been admittedly paying rent to her during her life time, hence, she was the landlord. After her death, the tenants have been paying rent to Surender Kumar, a legatee under the registered will. After the death of Surender Kumar, the rent is being collected by his son Amit Kumar. Still further, as noticed above, the Trust had filed a suit but withdrew the same by making a statement that they have entered into a compromise with Surender Kumar and have recognized Surender Kumar as the Manager/Mohatmim of the Bhawan. 9. The suit filed by the Trust came to be dismissed after the dismissal of the previous eviction petition under Order 17 Rule 3 CPC. Therefore, the only objection, with regard to the relationship between landlord and tenant came to an end. Still further, the tenants do not dispute that they took the premises on rent from Smt. Maya Devi and they have been paying rent to her. Hence, the tenants are estopped under Section 116 of the Indian Evidence Act, 1872, to deny the title of the landlord. 10. Still further, the tenants do not dispute that they took the premises on rent from Smt. Maya Devi and they have been paying rent to her. Hence, the tenants are estopped under Section 116 of the Indian Evidence Act, 1872, to deny the title of the landlord. 10. With regard to the objection of the learned counsel as regards the power of late Smt. Maya Devi, who herself was a manager, to bequeath the office by a registered Will, it may be noted that in these proceedings neither the validity of the Will for the purpose of competence to bequeath the property is being finally decided nor such question can be decided in an eviction petition. For the purpose of maintainability, there is ample evidence to hold that after the death of late Smt. Maya Devi, Surender Kumar stepped into her shoes as the manager of the Bhawan and thereafter, Amit Kumar son of Surender Kumar manages its affairs. 11. Learned counsel for the petitioners have relied upon a judgment passed by the Division Bench of Delhi High court in Duli Chand vs. Mahavir Prashad Trilok Chand Charitable Trust, 1984(1)RCR(Rent) 422 to contend that the eviction petition could only be filed by all the trustees jointly. It may be noted here that on careful reading of the aforesaid judgment, it is apparent that the appeal before the High Court arose from a suit and the provisions of the Rent laws were not applicable. The Division Bench remanded the case after allowing amendment of the plaint. Still further, wider definition of the word 'landlord' under the Haryana Act was not the subject matter of consideration before the Delhi High Court. Hence, the aforesaid judgment is not applicable. 12. Learned counsels have further relied upon a judgment passed by the Court in Mulkh Raj and others vs. Nisha Jain and others, (2011) 162 PunLR 522, to contend that subsequent petitions after dismissal of the first petition under Order 17 Rule 3 CPC, is not maintainable. No doubt, in the aforesaid judgment, it has been held that the subsequent petition is not maintainable. However, as noticed above, in the present case, there are significant subsequent developments. The trust did file a suit asserting its right over the property by impleading Surender Kumar-the Manager and the tenants. No doubt, in the aforesaid judgment, it has been held that the subsequent petition is not maintainable. However, as noticed above, in the present case, there are significant subsequent developments. The trust did file a suit asserting its right over the property by impleading Surender Kumar-the Manager and the tenants. The trustee after admitting Surender Kumar to be Manager, plaintiff no.1 and 2 withdrew the suit on 08.01.2008, whereas qua plaintiff no.3, the suit was dismissed on 16.01.2008. 13. In view of the aforesaid fact, now the question arises that since the Trust also recognize Surender Kumar to be the Manager and after him, Amit Kumar as the Manager, whether three petitions can be held to be not maintainable. There is substantive representation on behalf of the owner. Further, the tenants have admitted that after the death of Smt. Maya Devi, they have been paying rent to Surender Kumar. Keeping in view the aforesaid facts, the landlord cannot be left without a remedy. Keeping in view the facts and circumstances of the present case and more particularly, in view of the admission of the tenants and admission of the trustees with respect to the status of the Bhawan and its manager, it is declared that the petitions are maintainable. 14. Now the second question which arises is whether the building has become unfit and unsafe for human habitation. 15. At this stage, it may be noted here that in Civil Revision No.3654 of 2008, it was found that second floor of the premises has fallen down. In the aforesaid case, the eviction was sought from residential premises. In fact, the entire building is a big Dharamshala (building constructed for temporary stay of pilgrims). With the passage of time, certain shops were constructed and certain portion was given for residence. It has been found by the courts below that the building is more than a century old. Still further, the building expert has reported that the building has become unfit and unsafe. In 2014, Mr. Balwant Singh Malik, Sub Divisional Engineer, Provincial Sub Division No.2, PWD(B&R) Branch, was appointed by the court as Loal Commissioner to ascertain the condition of the building. The local commissioner, after inspecting the building, found that the building is very old and is constructed with mud mortor. The bricks used in roof of the projection have decayed and steel used therein has caught rust. The local commissioner, after inspecting the building, found that the building is very old and is constructed with mud mortor. The bricks used in roof of the projection have decayed and steel used therein has caught rust. Cracks were found below the junction of the wall and the roof. It was further reported that further use of the building without re-construction is dangerous. Still further, various photographs of the building have been produced. Both the courts on appreciation of evidence, concurrently, found that the building has become unfit and unsafe. 16. It may be noted here that this court while exercising the revisional jurisdiction has very limited scope. The High Court has no power to re-appreciate the evidence. Reference in this regard can be made to a 5 Judges judgment in Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh, (2014) 9 SCC 78 . 17. Keeping in view the aforesaid facts, all the revision petitions filed by the tenant have no substance and therefore, dismissed. Now let's come to Civil Revision No.8480 of 2010, filed by the landlord. 18. It may be noted here that in this case, the landlord had filed a petition under Section 4 of the Act of 1973, for fixing fair rent. Learned Rent Controller fixed the fair rent. However, as noted above, the Appellate Authority reversed the decision of the Rent Controller on the ground that the petition is not maintainable. 19. It may be noted here that the Appellate Authority while reversing the judgment of the Rent Controller has relied upon a decision in Rent Petition No.8 of 03.04.2004 (Shri Bhagwan Bhawan etc. vs. Om Parkash), decided on 29.04.2004. It is important to note here that the aforesaid decision of the Rent Controller was reversed by the Appellate Authority on 14.11.2016, Ex.A-11, in the subsequent petition. The appellate authority has also relied upon an order passed in Shri Krishan Bhagwan Bhawan and another v. Sharda Devi, dismissing the petition under Order 17 Rule 3 CPC. The effect thereof, has already been discussed. 20. Keeping in view the aforesaid facts, the Civil Revision No.8480 of 2010 is allowed and the fair rent of Rs.100/- per month, fixed by the Rent Controller as well as the Appellate Authority, is maintained. The effect thereof, has already been discussed. 20. Keeping in view the aforesaid facts, the Civil Revision No.8480 of 2010 is allowed and the fair rent of Rs.100/- per month, fixed by the Rent Controller as well as the Appellate Authority, is maintained. However, the finding of the Appellate Authority to the extent of non-maintainability of the petition filed by the Bhawan and Surender Kumar is set aside as the Appellate Authority overlooked the definition of 'landlord' as defined in the 1973 Act. 21. Resultantly, Civil Revision No.3654 of 2008, 3598 of 2012, 1238, 1241, 1252 and 1255 of 2019 stand dismissed, whereas Civil Revision No.8480 of 2010 is allowed.