Pawan Kumar vs Mehar Chand and others

J.V. Gupta, J.—This petition is directed against the order of the Executing Court dated 20.3.1980 whereby objections filed by judgment debtor (tenant) were accepted and the execution application of the decree-holder (landlord) was dismissed.

The brief facts giving rise to this petition are that on 19.12.1958 the premises were let out to Mehar Chand tenant, by the landlord Pawan Kumar. Subsequent thereto, the landlord/owner Pawan Kumar mortgaged the demised premises with possession with one Jagdev Ram. Since the tenant was in arrears of rent from 1 4.1972 an ejectment application was filed both by Pawan Kumar and the mortgagee Jagdev. Ram on 3 3 1977, on the ground that tenant Mehar Chand was in arrears of rent from 1.4.1972. It was further stated in the ejectment application that rent with effect from 1.4.1972 to 14.2.1977 was payable to Pawan Kumar and thereafter to Jagdev Ram. The arrears of rent claimed therein were assessed to be Rs. 3933.34 paise. On the first date of hearing i.e. 30.3.1977, the tenant appeared and made a statement before Rent Controller that he is prepared to pay Rs. 3933.34 paise to the landlord on account of rent and tendered the same, but be was not prepared to pay interest and costs as assessed by the Court. He further stated that he was prepared to vacate the shop. He be given time upto 19.3.1979 after which date, he will have no objection to vacate. The Rent Controller had assessed Rs. 25/- as costs, on that date. On this the landlord made a statement that he had heard the statement of the tenant and received the amount of Rs. 3933.34 paise under protest and allowed the tenant to continue in occupation upto 19.3.1979. However, he accepted the amount under protest, since the tenant had not paid the interest and costs as assessed by the rent Controller. In view of this statement, the learned Rent Controller passed the following order: ''In view of above statements of the parties, I order ejectment of Respondent from the premises in dispute leaving the parties to bear their own costs. Further, in view of state-ments of the parties, I order that this ejectment order will be executable after 19.3.1979."

Accordingly, the landlord sought execution of the said ejectment order on 20.3.1979 on which objections were filed by the tenant alleging that the said order dated 30 3.1977 was illegal, invalid and without jurisdiction on the ground that the Petitioner Pawan Kumar had ceased to be the landlord of the judgment debtor and as per averments made in the ejectment petition. Jagdev Ram who was the mortgagee with possession had become the landlord and from the date of application no rent was due to him and thus the Rent Controller had no jurisdiction to order his ejectment from the demised premises. According to the Objector the original owner/landlord could have only sought the recovery of arrears due to him for the period 1.4.1972 to 14.2.1977 under general law of the land and no rent petition was competent by him for ejectment'' on the ground of non-payment of rent and that Jagdev Ram who was the landlord qua him could have only filed the petition for ejectment on 1.4.1978 as prior to that no rent had become due to him. It was, therefore, pleaded that the Rent Controller while ordering the ejectment did not apply his mind and no statutory ground for eviction mentioned in Section 13 of the East Punjab Urban Rent Restriction Act existed when the impugned order was made and the same was thus a nullity. In view of the objection petition, the executing Court framed the following issue:

Whether the order of eviction passed by the Rent Controller, Barnala, on 30.3.1977 is nullity and without jurisdiction and is not executable order ? OP-JD.

Relief.

The executing Court while referring to certain judgments, came. to the conclusion that "I am of the opinion that the learned Rent Controller did not apply his mind and so statutory ground for ejectment was available to the landlord on the material placed before the Rent Controller. The ejectment order, therefore, clearly is null and void and non-executable." Dissatisfied with the same, the landlord has filed this petition in this Court. It is most unfortunate that this petition was filed in 1980 and it remained pending since then. The learned Counsel for the Petitioner submitted that whole approach of the executing Court was wholly wrong and illegal. The ejectment order was passed by the Rent Controller on account of non-payment of arrears of rent with costs and interest. The tenant was allowed two year''s time to vacate the premises according to his own statement and, therefore, it did not lie in his mouth to object the execution of the decree for ejectment According to the learned Counsel, the Court should not allow the parties to take dishonest plea particularly when the parties had taken benefits of the order passed by the Rent Controller on 30.3.1977. In case he would have contested the petition, the matter could have been decided therein but since he himself offered to vacate the premises after two years, the said time was allowed to the tenant by the landlord. In support of his contention he referred to the latest judgment of the Supreme Court in R. B L. Banarsi Dass & Co. Pvt. Ltd. v. M/s Shree Amar Trading Company (1986) 89 P. L. R. 23, wherein it was held that in such circumstances, the tenant should not have been given any protection by Court.

On the other hand, the learned Counsel for the J. D. submitted that since no rent was due to the mortgagee on the date of the application and Pawan Kumar was not entitled to any rent for the mortgaged property, no ejectment order could be passed against the tenant. That being so, the order was a nullity and therefore, the executing Court could go into the matter to hold the same. In support of his contention he referred to Ferozi Lal Jain Vs. Man Mal and Another, Smt Kaushalya Devi and Ors. v. K. L. Bansal (1969) 71 P. L. R. D. 289. Babu Ram Jagdish Kumar and Others Vs. State of Punjab and Others, Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, , K.K. Chari Vs. R.M. Seshadri, . He also referred to Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, , to contend that no person is supposed to know law and, therefore, if such plea was not taken at the time of filing of ejectment application the same will not stand in his way and it will not amount to waiver either because it was not the conscious act of the judgment debtor.

After hearing the learned Counsel for the parties and going through the case law cited at the Bar, I am of the considered view that the whole approach of the executing Court is wholly wrong, illegal and misconceived. By no stretch of imagination, it could be held that the ejectment order was a nullity. The ejectment was sought by the landlord on the ground of non-payment of arrears of rent. In the East Punjab Urban Rent Restriction Act, one of the grounds u/s 13 (2) (i) is that if the tenant on the first date of hearing of the application for ejectment, pays or tender the arrears of rent and interest at 6% per annum on such arrears together with costs of the application assessed by the Rent Controller, the rent shall be deemed to have been duly paid or tendered within the time aforesaid. In other words, if the tenant does not pay the arrears of rent along with interest and costs assessed by the Rent Controller, the tenant will be liable to ejectment. In the present case admittedly the tenant did not pay the interest or costs He only paid arrears of rent as claimed in the ejectment application with the statement that he be allowed two years time to vacate the premises. This statement was accepted by the landlord and consequently eviction order was passed which was made executable after two years i e. after 19.3.1979. That being so, by no stretch of imagination it could be successfully argued that the eviction order was not passed in accordance with the provisions of Section 13 of the Act. Once it is so held, then the judgments relied upon by the learned Counsel for the judgment debtor have no applicability to the facts of the present case and are thus distinguishable In these circumstance, the finding of the executing Court that there was no statutory ground for ejectment available to the landlord, on the material placed before him was wholly wrong and misconceived. Moreover, in the latest judgment of the Supreme Court referred to above the same has arisen out of a civil suit where the tenant challenged the order of the Rent Controller and wanted an ad interim order of injunction. The ad interim order of injunction was granted by the High Court The same was challenged before the Supreme Court in appeal and it was held that "Ordinarily, the order being interlocutory this Court would not have entertained the special leave petition. We were, however, impressed by the feature that the Respondent was not acting bonafide, he availed of the benefit under the compromise decree and remained in occupation for about five years without raising any dispute against the order of eviction and the institution of the suit is not a bonafide act. In the order of the High Court, we do not find any reference to these aspects and we agree with the counsel for the Appellant that the Respondent should not have been given any interim protection against eviction. The compromise decree which was more than five years old when the suit was filed should not have been stayed when execution was sought Grant of injunction in this setting is in our view wholly uncalled for and would amount to an abuse of the process of the law. The order of the High Court is accordingly reversed. The appeal is allowed. There will be no order as to costs."

The Supreme Court also found that since the order of eviction passed by the Rent Controller was never challenged u/s 15 of the Act, it becomes final unless it is challenged u/s 15(5) of the Act.

As regards the plea that Pawan Kumar was not entitled to receive rent or no rent has become due to Jagdev Ram was very much available to the tenant at that time. Instead of that he preferred to get two years time by not paying the costs and interest which was agreed to by the landlord. Moreover, whether Pawan Kumar was entitled to the rent or the mortgagee Jagdev Ram, was inter se arrangement between them. Admittedly, the tenant never paid any rent to Jagdev Ram mortgagee and, therefore, Pawan Kumar continued to be his landlord. In any case, this plea is not available to the tenant at the execution stage particularly when he has already taken benefit of his stand by getting two years'' time for vacating the premises The objections filed were not bona fide and the judgment debtor has abused the process of law by raising frivolous objections and thus, it amounts to abuse of the process of law. In this way, he has continued to be in possession of the demised premises for more than 10 years. In these circumstances the petition succeeds and is allowed with costs, which are assessed to be Rs. 2000/- The impugned order is set aside and the objection petition is dismissed. Parties are directed to appear in the executing Court on 22 2.1989.

Sd/- J.V. Gupta, J.

February 8, 1989

Since this Court in Civil Revision No. 1640 of 1980 decided today i.e. February 8, 1989, is of the opinion that the judgment debtor has abused the process of the Court of law, he has made himself liable for proceeding under the Contempt of Court Act. However, in case he delivers back the possession of the demised premises to the landlord within one month and also deposits arrears of rent upto date and file an affidavit in this Court to this effect that the needful has been done, the matter for proceedings under the Contempt of Courts Act may be reconsidered and orders in this behalf may be obtained from this Court.