Pyara Singh vs Mahant Gurmukh Das and Another

Dua, J.—This is a tenant''s revision from the order of the Appellate Authority dismissing his appeal and affirming the order of the Rent Controller directing his eviction from the premises.

It appears that by means of a lease-deed dated 29th November 1951 registered on 13th December 1951, a vacant site was leased out by Mahant Gurmukh Dass in favour of Pyara Singh and Dalip Singh for a period of 20 years at the rate of Rs. 75/- per month, it being agreed that six months'' rent was to be paid in advance. In January, 1961, the present eviction proceedings were initiated alleging that the rent had not been paid since 1st January 1960 and also that there was subletting and that the tenants were not desirable persons.

It is unnecessary to consider in detail or closely the landlord''s allegations and the tenant''s reply in these proceedings because the Rent Controller and the Appellate Authority have both ordered the present petitioner''s eviction on the ground that he was in arrears of rent and had not deposited the same on the first hearing. The learned Kent Controller has observed that the tenant appeared before him through his counsel on 19th April 1961 but tendered arrears of rent in Court on 22nd April 1961 which shows that the arrears were not tendered on the first day of hearing. In view of a decision of this Court in Mela Ram etc. v. Kundan Lal (1961) 63 P.L.R. 451, the Controller felt that on account of default in the payment of rent it was unnecessary to go into other points and allowed the application for eviction. The fact that the tenant had asserted that he had not been given a copy of the application was considered to be immaterial for the purpose of holding that the date upon which a defendant or respondent appears to answer the case must be held to be the first day of hearing irrespective of the fact whether or not he was able to answer it. G.D. Khosla C.J. in that case followed two earlier decisions of this Court in Hira Lal v. Gian Singh and Co. AIR 1951 P&B 441 and Mukh Ram v. Siri Ram (19(sic)) 61 P.L.R. 561. The learned Chief Justice preferred to follow these decisions as against the decision of Mehar Singh J. in Ram Chand Jagta Mal Aggarwal v. Mathura Dass Jiwan Mal Kalak AIR 1955 N.U.C. 4003. The learned Chief Justice also expressed disagreement with the decision of the Bombay High Court in Khanderao Malkarjun Dhotre Vs. Anandrao Laxmanrao Mashalkar, .

The matter was taken on appeal to the appellate authority by the tenant but without success. It is in these circumstances that the present revision has been preferred.

The learned counsel for the petitioner though challenged the view taken by G.D. Khosla C.J. in Mela Ram''s case 1 as erroneous and opposed to the real legislative intent underlying section 13(2)(i) proviso, during arguments he proceeded on the assumption that this view has prevailed in this Court since 1951. I am, therefore, not called upon in the instant case to consider as to which of the two conflicting views more correctly represents the legislative intent.

The point which is more effectively canvassed in the present revision is a new point, not taken before the Controller and the Appellate Authority; and that is, that the tenant had taken on lease a vacant site and that no order for his eviction from the huge building he has constructed on it can be passed by the Rent Controller. The contention in other words is that the Controller has no jurisdiction to pass orders for the eviction of anybody from the premises of which he is not a lessee and which in law and in fact is owned by him.

The respondents learned counsel has on the other hand contended that this was not a point raised before the Rent Controller, and, therefore, it should not be allowed to be raised here. This point, so contends the respondents'' counsel, requires going into facts.

I am disinclined to agree with the respondents'' learned counsel because it is clear from the lease-deed that the lease was for a vacant site and from the landlord''s application for ejectment also it is clear that the building in question is not claimed by him to have been let out to the tenant. The lease was for a period of 20 years and after the expiry of that period the construction made on the vacant site was of course to pass on to the landlord. The landlord''s counsel has urged that the lease-deed contemplates transfer of title to the construction also to his cilent before the expiry of 20 years which is seriously controverted by the petitioner''s learned counsel, but it is unnecessary for me at this stage to go into this point I therefore express no opinion on it.

The chief plank of the respondents'' contention is that the arrears of rent having not been deposited on the first date of hearing, the order of the Rent Controller as affirmed by the appellate authority cannot be interfered with on revision. He has laid great stress on the contention that this order cannot be questioned on revision and that if the tenant has a cause of action on the basis of his ownership of the structure constructed on the vacant site he can take whatever other legal steps may be open to him.

In my opinion, the Rent Controller whose jurisdiction is circumscribed by the statute as a special tribunal was enjoined by law to keep himself within the bounds of his jurisdiction. As is obvious, the tenant was a tenant only in regard to the vacant site and the Rent Controller could only pass an eviction order in regard to that site. The fact that the tenant had not specifically raised the plea would not clothe the Rent Controller with jurisdiction to pass any order of eviction in regard to the property which is not let out by the landlord to the tenant, whether actually or constructively. In my opinion, it was the duty and function of the Rent Controller to advert to this fact and not to pass an order of eviction from the building, as if it was automatic, merely on the failure of the tenant to pay or tender the arrears of rent on the first hearing of the application. The learned appellate authority also seems to me to have fallen into the same error, namely, that an order of eviction from the structure which is not the tenanted premises must automatically be passed on failure on the part of the tenant to pay or tender the arrears on the first hearing.

In these circumstances, I think the only proper, fair and just order to pass on this revision would be to set aside the orders of both the appellate authority and the Rent Controller and to remit the case back to the Rent Controller for considering the effect of the construction of the building on the rented land which was the subject-matter of the lease-deed.

It may here be observed that the learned counsel for the respondents has also agreed that if this Court is of the view that this question should be gone into, this matter should be remitted to the Rent Controller for his determination after permitting the tenant to amend his written statement. As already observed, this appears to me to be the proper and just course to adopt under the revisional and supervisory jurisdiction.

For the foregoing reasons this revision is allowed and setting aside the orders of the Appellate Authority and the Rent Controller, I remit the case back to the latter for re-trial in accordance with law and in the light of the observations made above. The tenant may seek permission to amend his written statement to formally incorporate the plea of the construction of building on the rented land and its effect on the landlord''s application for eviction from the building. The respondents learned counsel has asserted that his client has already obtained constructive possession of the premises in execution of the order of the Appellate Authority. If that is so, then possession will have to be given back to the tenant.

Parties are directed to appear before the Rent Controller" on 20th December, 1963 when another short date would be given for further proceedings in the matter. Costs would follow the event.