Gulab Chand Katailiha vs Rajendra Prasad Tiwari

Heard.

The present petition is against the order dated 13-09-2022 passed by the Chhattisgarh Rent Control Tribunal, Raipur, whereby the order of eviction passed in Case No.27/A-90(7)/2018-19 by the Rent Control Authority, Raipur on 31-01-2022 was affirmed.

The brief facts of this case are that respondent filed a case invoking Chhattisgarh Rent Control Act, 2011 for ejectment of a premises which is comprised in nazul Sheet No.26, plot No.63, area 2355 square feet of ward No.25 at Maouja Sadar Bazar, Bilaspur (C.G.). Over the said land, over a part of the area 198 square feet, a shop exists, wherein it was stated that the petitioner/tenant is in possession. According to the landlord, the petitioner/tenant has not deposited the rent regularly and failed to pay the amount, consequently on 16-10-2018, a legal notice was served through the counsel seeking eviction of the tenanted premises. Apart from claiming vacant possession of the tenanted premises, the claim was also with respect to the arrears of rent. The tenant came out with a defence, that way back in 1975, the suit premises was given on lease to one Premchand Katailiha for ten years, thereafter, he constructed two shops over the said land and one of the condition was that the tenant would not be evicted but respondent would be entitled to receive rent. It is stated in the year 2000, since a dispute arose in between the partners, a lane was prepared in between the two shops and partition was effected, wherein one shop is in possession of the petitioner and other is in possession of the family members. It was further stated that after expiry of the lease of 10 years, the suit premises was further let out for ten years to Gulab Chand Katailiha and thereafter to one Malti Katailiha for five years, thereafter again it was given to Gulab Chand Katailiha for five years. Consequently, neither there was an agreement of tenancy exists in between the petitioner/tenant and the respondent/landlord nor the rent was ever paid to the landlord. Notice of eviction was also denied. The further defence was that because of the non-joinder of the parties, the petition for eviction was not tenable.

On the basis of the pleading and the evidence, the Rent Control Authority passed an order of ejectment along with the payment of arrears of rent. The said order having been challenged before the Rent Control Tribunal, the Tribunal also affirmed the said order. Hence, this petition.

Learned counsel for the petitioner/tenant would submit that there is no privity of contract of tenancy in between the petitioner and the landlord. He would submit that the document filed by the tenant/petitioner would show that from Ex/D-1 to Ex/D-36, all the receipts were issued in the name of Malti Katailiha. Consequently, for want of proper party, the petition before the Rent Control Authority was not maintainable. He would further submit that when such non-joinder was raised as a ground, the learned Rent Control Authority failed to consider the same, thereby, the wrong exercise of power was done vested under the Chhattisgarh Rent Control Act, 2011 and the eviction petition should have been outrightly dismissed.

Per contra, learned counsel for the respondent/landlord would submit that as per the finding arrived at by the Rent Control Authority and the Rent Control Tribunal that the petitioner was also a tenant and since 18-07-2013, the petitioner is in occupant as a tenant thereof, which remains unrebutted. Therefore, the finding of fact by both the Rent Control Authority and the Rent Control Tribunal are well merited, which do not call for any interference by this Court.

We have heard learned counsel for the parties and perused the record of the Rent Control Authority.

The Solitary ground which has been raised before this Court is that the petition before the Rent Control Authority was not maintainable for misjoinder of the parties. In order to explore the same, we went through the pleading and the evidence of the parties. According to the averment of the petitioner, the petitioner Gulab Chand Katailiha was arrayed as a non-applicant tenant in the ejectment proceeding before the Rent Control Authority. According to the pleading, the agreement of tenancy initially started on 18-07-2009 wich lasted uptill 18-07-2013. The document Ex/P-2 is a tenancy agreement which shows that the said facts have been fortified, wherein the tenancy was shown to be uptill 18-07-2013.

In reply to the pleading, wherein the landlord averred that the rent has not been paid by the petitioner/tenant herein and he is the tenant. Paragraph 2 of the reply, the petitioner stated that initially the premises was let out to tenant for ten years on 19-08-1990. Subsequently, the tenancy was again revived on 06-09-2000 for a period of five years to Malti Katailiha on lease, thereafter, on 18-07-2013, again for five years, the shop was rented out to the proprietor Gulab Chand Katailiha, the petitioner herein. Further pleading of the tenant would show that thereafter, the lease was extended from time to time and the rent was paid either by the tenant himself or their family members. The tenant further contended that he is not a tenant but he is a lease holder of the tenanted premises.

The evidence adduced by the petitioner before the Rent Control Authority, he admits the fact that no document were produced that who is the owner of Mahalaxmi Bartan Dukaan at Sadar bazar and for that neither the proprietorship document nor any partnership document has been produced. The tenant has admitted the fact that the suit property is recorded in the name of Rajendra Prasad Tiwari, (the respondent) in the nazul records. Further he admits that the Rajendra Prasad Tiwari has given the premises on lease to him.

The Chhattisgarh Rent Control Act, 2011 Section 2(5) defines the landlord which purports that the 'landlord' means “a person who for the time being is receiving or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of any other person”. And, under Section 2(14) of the Chhattisgarh Rent Control Act, 2011, “the 'tenant' is the person by whom or on whose account or behalf rent is, or but for, a contract express or implied, would be payable for any accommodation to his landlord including the person who is continuing its possession after the termination of his tenancy otherwise than by an order or decree for eviction passed under the provisions of this Act”.

Therefore, by pleading and the admission of the petitioner/tenant herein, he admits that he is in occupation and paying the rent, but tried to draw lines of difference of lease and the tenancy. We are unable to appreciate the said peculiar difference for which efforts have been made by the petitioner to carve out the exception for the Act of 2011. The 'rent' is defined under Section 2 (9) of the Chhattisgarh Rent Control Act, 2011 that “the consideration payable by the tenant to the landlord against an accommodation”. Therefore, by reading of the pleading and the evidence of the petitioner/tenant, he admits that he is paying the rent and after initial tenancy, it was extended uptill 18-07-2013. So on the basis of admission made by the respondent in his return statement that the rent was being tendered either by the petitioner or family members, the issuance of the rent receipts from Ex/D-1 to Ex/D-36 cannot be considered in defence of tenant to deny the tenancy and the occupation.

Furthermore, we are unable to understand one part that if the petitioner claims that he is not in occupation and tenant, then what was the necessity to file this petition to challenge the order eviction of the Rent Control Authority. By conduct, an implication and the admission, the petitioner has shown that he is a tenant of the premises for which the finding of fact has been rightly recorded.

In view of such fact, we are not inclined to admit this petition. In the result, the petition, sans merit, is liable to be and is hereby dismissed.