Rai Singh vs Balwant Singh

Sukhdev Singh Kang, J.—Rai Singh has filed this revision petition against the judgment of the Appellate Authority allowing the appeal of respondent-tenant and dismissing the ejectment application filed by him.

Rai Singh filed a petition u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called ''the Act''), alleging that Balwant Singh, respondent, has been occupying property No. 910 on a monthly rent of Rs. 25/- and property No. 910/1 on a monthly rent of Rs. 46/- situated in Dana Mandi, Adampur, District Jullundur as a tenant since the time of his father Diwan Singh. As a sole legatee under a will dated the 10th October, 1964, executed by ghis father Diwan Singh, he (Rai Singh) became the owner of both the premises in dispute. It may be mentioned that Karam Singh, a brother of the petitioner, filed a suit for declaration that he along with the petitioner was the owner of the premises in dispute along with the other properties left by Diwan Singh deceased. The matter was referred to arbitration of Shri Amrik Singh. He gave his award in favour of the petitioner on the 18th of October, 1967. This award was made the rule of the Court and the suit of Karam Singh was dismissed on the 30th of May, 1968, by the learned trial Court. Balwant Singh appeared as a witness for Karam Singh and thus knew about the dismissal of the suit. Petitioner served notices on Balwant Singh terminating his tenancy and for payment of the arrears of rent. The ejection was sought on the ground that Balwant Singh had not paid rent of property No. 910 since 1st of October, 1964 and of property No. 910/1 since 1st of January, 1966. Balwant Singh has denied the title of of the petitioner when he made a reply to the notice issued by him. Therefore, he was liable to be ejected. Balwant Singh contested the application. He contended that the shops had not been correctly described. His shop had been separately let out and a composite petition for ejectment of both the premises was not maintainable. That Diwan Singh had left other legal heirs apart from the petitioner and that he alone could not file the petition. He also averred that property No. 910 belongs to Karam Singh from whom he had taken it on rent and it is incorrect that Diwan Singh had been the landlord in respect of this property. Property No. 910/1 had been taken by him on rent from Diwan Singh at the rate of Rs. 20/- per month and after the death of Diwan Singh, the rent was paid to his son Karam Singh for each month in advance. He was not liable to pay any rent.

The pleadings of the parties led to the framing of the following issues:-

(1) Whether the application does not lie in the present form?

(2) Whether the property in dispute is not property described. If so, its effect?

(3) Whether the application is bad for mis-joinder of parties.

(4) Whether the respondent is liable to be ejected on the grounds mentioned in para No. 5 of the petition?

(5) Whether a valid notice u/s 106 of the T.P. Act has been served?

(6) Whether the petitioner is estopped from filing the petition by this Act, conduct and admission?

(7) Whether relationship of landlord and tenant exists between the parties?

(8) Relief.

The Rent Controller decided all the issues in favour of the petitioner. He held that the shops in dispute belong to Diwan Singh father of Rai Singh; that the petitioner (Rai Singh) became the sole owner of the shop in dispute; that Balwant Singh was not a tenant of Karam Singh; that he was a tenant of Rai Singh; that he did not pay any rent to Rai Singh and therefore, he was liable to ejectment. The Rent Controller allowed the ejectment application and ordered Balwant Singh''s ejectment. Dissatisfied with this order, Balwant Singh, tenant, filed an appeal. It was allowed by the Appellate Authority. He held that because of a compromise between the parties in a civil suit, the previous tenancy stood terminated and a fresh tenancy was created with effect from the 1st of January, 1969, and thereafter the tenant had not incurred any liability of ejectment so he was not liable to be evicted.

Another set of facts may be mentioned here that the ejectment application was filed on the 7th of January, 1969. Rai Singh also filed a suit for the recovery of the rent of these premises against Balwant Singh. The suit was compromised. Balwant Singh along with his counsel made a statement in the Civil Court on the interpretation of which arguments have been addressed before me at some length. Therefore, it will be useful to reproduce that statement:

A decree for recovery of a sum of Rs. 1620/- with proportionate cost of the suit be passed in favour of the plaintiff against the defendant subject to the condition that the plaintiff shall be entitled to execute this decree only if he is declared to be the owner of the suit properties in the appeal filed by Karam Singh against the plaintiff and which appeal is pending in the High Court. I also undertake to deposit the rental from 1st January, 1969 onwards at the rate of Rs. 45/- P.M. for the properties in dispute and the said amount would be recoverable by the plaintiff or by Karam Singh whosoever is held by the High Court to be the owner of the properties in suit. I would deposit the said rent in the Court of Senior Sub Judge, Jullundur, for payment of the rightful claimant out of the contesting claimants by 15th of the following month.. The suit of the plaintiff for recovery of the amount as claimed in the plaint may be treated as dismissed as given up.

The suit was dismissed. Balwant Singh filed an application before the Rent Controller on the 11th of February, 1970 in which it was prayed that the ejectment application should be dismissed because a compromise had been reached between the parties and future rent had been agreed to be deposited and Rai Singh was entitled to recover the decretal amount and future rent in case he was declared to be the owner by the Hon''ble High Court. It was also contended that since a new tenancy agreement had been entered into between the parties, the petition had become infructuous. Rai Singh put in a reply and controverted the pleas raised in the application. From the pleadings of the parties, the Rent Controller framed the following issue-

Whether the parties arrived at a compromise in same suit and as such a new tenancy had been created and this application is now liable to be dismissed as infructuous?

The Rent Controller came to the conclusion that the proceedings in the Civil Court did not show that a new tenancy was created between the parties. There was nothing on the file to show that a fresh tenancy between the parties pertaining to the premises in question was created. It was also held that the application for ejectment had been filed on the ground that the tenant had not paid the rent of the premises in dispute. It remained to be decided whether the tenant was in arrears of the rent and whether the same was tendered by him on the first date of hearing. He, therefore, concluded that no new tenancy had been created, and the ejectment application was not liable to be dismissed as infructuous. This order was passed on the 9th of December, 1970. No appeal or revision against this order was passed. Balwant Singh made an application for amendment of the written statement. It was allowed but he did not take the plea that a fresh tenancy had b en created. Thereafter the parties led evidence. The Rent Controller decided all the material issues against the tenant and ordered his ejectment.

Balwant Singh filed an appeal against this order. As has been noticed in paragraph No. 3 of the judgment of the Appellate Authority, the only point raised before him in the appeal was as to whether the relationship of landlord and tenant existed between the parties qua both the aforementioned properties. After re-appraising the whole evidence the Appellate Authority came to the conclusion, "I am of the opinion that it was fully proved that Rai Singh is the landlord of both the properties as put in the petition". He has then mentioned that while discussing the question, another contention has been raised before him. It had been urged that a new tenancy had come into being whereby both the properties were let out on rent at the rate of Rs. 45/- per month and it was not for a fixed term. After interpreting the statement of Balwant Singh reproduced above as well as the judgment made on the basis of this statement, the Appellate Authority concluded that a new tenancy had been created with effect from the 1st of January, 1969. The present ejectment petition had been filed on the 7th of January, 1959. No cause of action after this new tenancy ha i arisen. So, the ejectment application was not competent. He, therefore, allowed the appeal and set aside the order of the Rent Controller and dismissed the ejectment application. Aggrieved by this order, Rai Singh has filed this revision petition.

Mr. M.L. Sarin, the learned counsel for the petitioner, has argued that it was no where pleaded in the written statement that a new tenancy had come into being with effect from the 1st of January, 1969. Mr. I.K. Mehta, the learned counsel for the respondent, has not been able to controvert this assertion. He has, however, contended that an application was made on the 11th of February, 1972 and therein it had been pleaded that a new tenancy agreement had been entered into bet-been the parties. This application should be treated to be the part of the written statement. He further contended that the Rent Controller had framed an issue on this point and decided the same, though against him. Therefore, it cannot be said that during the trial of the ejectment application a plea had not been taken that a new tenancy had been created. This argument of Mr. Mehta is indeed ingenious. Every application made during the trial of a cause does not become part of the pleadings i.e. the plaint or the written statement. The parties go to the trial on the basis of the plaint/petition and written statement or replication, if any. The pleadings are confined only to these documents. If any additional plea had to be raised and is sought to be tried, the concerned party has to seek and make an amendment in its pleadings, may be, the plaint petition or the written statement. Without doing that no plea can be argued even if by mistake an issue had been framed and the parties had even led evidence. It is axiomatic to say that no amount of evidence can be looked into on a plea which had not been raised by a party in its pleadings. So, this plea had not been raised before the Rent Controller that a fresh tenancy had come into existence and as such the ejectment application was liable to be dismissed.

Mr. Sarin has also contended that there is no evidence on the file to support the conclusion that a new tenancy had been created by the compromise entered into between the patties in a civil suit. He has argued that even in his statement before the Civil Court, Balwant Singh has not admitted the petitioner to be his landlord. Even there is equivocal. He has stated that plaintiff (Rai Singh) shall be entitled to execute this decree only if he is declared to be the owner of the suit properties. He further stated that he undertook to deposit the rent from the 1st of January, 1969 onwards and that amount would be recoverable by the plaintiff or Karam Singh whosoever, is held by the High Court to be the owners of the properties in suit and that he would deposit the said rent in the Court of Senior Subordinate Judge for payment to the rightful claimant out of the contesting parties. This statement clearly shows that Balwant Singh had not admitted Rai Singh to be his landlord qua the properties in dispute. If in these circumstances it is strange that the Appellate Authority has concluded that a fresh tenancy has come into existence. A tenancy comes into existence only if a tenant accepts the other as his landlord. Here the position is otherwise.

The Rent Controller and the Appellate Authority have both held that Rai Singh was the landlord and Balwant Singh was the tenant in the premises in dispute. However, Balwant Singh has stated in clear terms that he was not admitting Balwant Singh as his landlord as the matter had to be finally decided by the High Court He had not paid any rent to Rai Singh. He had only agreed to deposit the arrears as well as the future rent in Court. He had put a rider that Rai Singh could execute the decree only if he was declared to be the owner of the properties in dispute by the High Court. The conduct of Balwant Singh clearly negatives any inference of relationship of landlord and tenant between him and Rai Singh. Under these circumstances, it is impossible to hold that the parties had created a fresh tenancy by their agreement in the Civil Court even if a tenant by denying the title of his landlord terminates the tenancy. In the present case, no such tenancy has been created.

Mr. Mehta argued that previously there were two shops. According to the averments in the ejectment application, their rents were different and arrears of rent were due from two different dates regarding this two properties. By the agreement, the properties were amalgamated into one unit, and the rent was reduced from Rs. 70/- per month as claimed by Rai Singh to Rs. 45/- per month. According to him these two factors are conclusive to hold that a new tenancy has been created, He has in support of this contention, relied upon a decision of their lordships of the Supreme Court in Uppalapati Veera Venkata Satyanarayanaraju and Another Vs. Josyula Hanumayamma and Another, . In that case it has been held that by a document the unexpired period of two years had been extended for five years. Some new land has been included besides the lands covered by the old lease and also the amount of rent had also been changed. The document evidencing these facts was not a deed of attornment but was a document accepting a fresh tenancy. However, in view of the stand taken by Balwant Singh when he made a statement in the Civil Court, the two factors highlighted by Mr. Mehta are not sufficient to hold that a fresh tenancy was created. The statement of Balwant Singh rather militates against any tenancy. The Appellate Authority went clearly wrong when it held that a fresh tenancy had been created.

It is not disputed that arrears of rent had not been tendered on the first date of hearing. The payment of some money in pursuance of the decree of the Civil Court at a date latter to the first date of hearing is of no consequence. Though it is emphatically denied by Mr. Sarin that any money has been deposited, yet even for the sake of arguments it is accepted that some money was deposited by Balwant Singh after the first date of hearing that will not amount to tender on the first date of hearing. It has been so held recently by a Full Bench in Kalu Ram v. Gonda Mal (1980) 82 P.L.R. 452.

For the reasons recorded above, there is no merit in this revision petition and the same is dismissed but with no order as to costs.