Shiv Charan Kaur vs Surjit Kaur

D.V. Sehgal, J.—The Judgment shall dispose of Civil Revision Nso. 1743 and 1906 of 1988 which are directed against two similar orders passed by the learned Rent Controller on 18-7-1988 in two separate applications for ejectment filed by Smt. Surjit Kaur, landlord respondent against the petitioner. Through the impugned orders applications u/s 10 of the CPC (for short the 0ode) filed by the petitioner for staying the proceedings in the ejectment applications have been dismissed.

The petitioner was a tenant and is still claimed to be a tenant by the respondent under the latter in House No. 3055, Sector 22-D, Chandigarh. The respondent filed an application for the ejectment of the petitioner from the said house by filing an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) as applicable to the Union Territory of Chandigarh on the ground that the petitioner had failed to pay or tender rent for the period 112-1983 to 30 4 1985. She filed a second application for ejectment of the petitioner on the ground of non-payment of rent for the period 112-1983 to 30-9-1985. Then a third application for ejectment was filed by her against the petitioner on the ground of non payment of rent for the period 1-12-1983 to 31-7-1986. It is not in dispute that out of these ejectment applications two were pending in the Court of Shri Amarjit Singh Katari, the then Rent Controller, Caandigarh and are now pending in the Court of Shri G. S, Sewak, Rent Controller. In one out of these three applications an order of ejectment was passed by the Rent Controller The petitioner filed an appeal u/s 15(l)(b) of the Act and the same is still pending in the Court of Shri S. R. Bansal. Additional District Judge, Chandigarh exercising the powers of the Appellate Authority under the Act.

The respondent then filed the instant application for ejectment in which the impugned orders have been passed. One of these applications for ejectment is on the ground of non-payment of" rent by the petitioner for the period 1-12-1983 to 31-12 1986 and the other is for non- payment of arrears of rent for the period 1-12-1983 to 31-3-1987.

The case of the petitioner is that the order of ejectment was passed by the learned Rent Controller in the ejectment application brought by the respondent, which is now the subject matter of appeal before the Appellate Authority, despite the fact that she had taken a clear stand that the relationship of landlord and tenant between her and the respondent came to an end on 1-11-1985 when the respondent had entered into another agreement of lease dated 20th October. 1985. With the petitioner''s husband Shri Baldev Singh Bhalur, Advocate (hereinafter called Shri Bhalur). By virtue of the said agreement the house was given on rent by the respondent to Shri Bhalur at a monthly rent of Rs 2,000/-. She also received Rs. 24,000/- as advance rent for one year. It was further agreed that the rent shall be increased by Rs 50/- every year. She thus submitted that the real dispute between the parties was whether there was a relationship of landlord and tenant between them and whether from 1-11-1985 Shri Bhalur is a tenant under the respondent by virtue of the agreement of lease dated 20th October, 1985 She pleaded that this dispute is already the subject matter of adjudication between the parties in the appeal aforesaid before the Appellate Authority and, therefore, the proceedings in these two subsequent applications for ejectment should be stayed. She invoked the provisions of Section 10 of the Code in her support.

The learned Rent Controller however, vide impugned orders has held that the two subsequent ejectment applications, which are pending before him, are on the ground of non-payment of arrears of rent for the subsequent periods which are not the subject matter of adjudication before the Appellate Authority and, therefore, dismissed the applications of the petitioner.

I have heard the learned counsel for the parties at length. It was contended on behalf of the petitioner that the rent for the period 1-11-1981 to 31-10-1985 when she was a tenant under the respondent stands already paid. Rs. 2,000/- were paid in cash at the time the lease deed was entered into between the parties. A sum of Rs. 36 000/- was deposited by her in the Bank account of the respondent in tents of the conditions of lease deed. The balance amount of Rs 10, 000/- was spent on repairs with the consent of the respondent for which she had given a receipt. In this amount for the total period of 24 months rent amounting to Rs 48,000/- at the rate of Rs. 2.000/- per month stood paid to the respondent. It may be noted here that out of the aforesaid amount of Rs. 48,000/ the receipt of Rs 2,000/-in cash and Rs 36, 000/- by Bank deposit has been admitted by the counsel for the respondent He, however, seriously disputes adjustment of Rs. 10,000/- towards repairs of the house by the petitioner and also denies that any receipt was given by the respondent for the same.

It is the case of the petitioner that vide agreement dated 20th October, 1986, a fresh tenancy came into being with effect from 1-11-1985 between Shri Bhular and the respondent. She ceased to be a tenant under the respondent from 1-11-1985 Vide aforesaid agreement said Bhular paid Rs. 24,000/- as advance rent for one year i e. from 1 11-1985 to 31-10-1985 for which the respondent executed a separate receipt also. The respondent, however, denies the execution of the aforesaid agreement of lease dated 20th October, 1985. She also denies having leased out the said house to Shri Bhalur. She has denied receipt of Rs. 24,000/- as advance rent from 1-11-1985 to 31-10-1986. The dispute with regard to all these matters is to be adjudicated upon and decided by the learned Appellate Authority. What, however, requires mention here is the development which took place on 28th November 1987 during the pendency of the proceedings before the Appellate Authority Shri Bhalur husband of the petitioners who appeared as her counsel on that day made the following statement before the Appellate Authority

"I will make the payment of the balance arrear of rent within a week''s time The same should be got deposited in the Court without prejudice to my rights taken in the grounds of appeal This amount deposited may not be paid to the respondent-landlord However, on my failure to deposit the amount within a week''s time" my appeal may be deemed to have been dismissed."

Shri A. S. Chahal, learned counsel for the respondent then made the following statement:-

"I undertake not to execute the decree as passed by the Rent Controller, Chandigarh, till the decision of this appeal if the deposit is made by the due date."

It has not been disputed before me that within one week of the above statements Shri Bhalur deposited a sum of Rs 26 700/- in the Court of the Rent Controller on 5-11-1987. Another sum of Rs. 12,600/- was deposited on 26-5-1988. Yet another amount of Rs. 4,200/- was deposited on 15-7-1988 and the last deposit of Rs. 2,100/- was made on 29-8-1988. In this manner a sum of Rs. 46 600/- has been deposited by Shri Bhalur which according to him pertains to the rent for the period 1-11-1986 to 3l 8-1988. The rent has been calculated in accordance with the rate of rent stipulated in the alleged agreement of lease dated 20th October, 1985. According to him sum of Rs. 1,600/- has been deposited In excess. The case of the learned counsel for the respondent is that the above deposit made by Shri Bhalur does not amount to "payment of the balance arrears of rent" as had been undertaken by him in his statement on 28-11-1987 before the learned Appellate Authority. He submits that neither the petitioner nor Shri Bhalur deposited Rs. 24,000/-, the rent for one yew from 1-11-1985 to 3110-1986 which had allegedly been paid by him to the respondent vide agreement dated 20th October, 1985 set up by Shri Bhalur and the petitioner but which amount has not been received by the respondent. They also did not deposit Rs. 10,000/- out of the rent pertaining to the period 1-11-1983 to 31-10-1985 which was allegedly spent by the petitioner on repairs which fact had again been disputed by the respondent. He, therefore, submits that the appeal before the Appellate Authority was liable to be dismissed and the respondent is not bound by the undertaking given by him. He also brought to my notice the fact that an objection petition filed by Shri Bhalur against execution of the decree for ejectment was dismissed by Mrs. Rekha Rani Sub Judge 1st Class, Chandigarh, vide her order dated 30th October, 1987. Shri Bhalur filed Civil Revision No. 3297 of 1987 in this Court and the same was dismissed by G. G. Mital, J. vide order dated 23rd November, 1987 holding that the agreement dated October 20, 1987 appeared not to have been executed between Shri Bhular and the respondent and that an inference can reasonably be drawn that the plea of fresh tenancy raised by Shri Bhalur is a false one. The payment of Rs. 24.000/- as advance rent for one year vide aforesaid agreement also appeared to be improbable. He submits that in face of the above conclusions by G. C. Mital, J. the plea of the petitioner or shri Bhalur is without any force.

What, however, requires notice is that it was after the judgment of G. C. Mital, J. of on November 23, 1987 that the statement was made by Shri Bhalur before the Appellate Authority on 28-11-1987 as reproduced above and correspodingly an undertakiag was given by she counsel for the respondent on the same date. Shri Bhalur invited my attention to the fact that the respondent made an application u/s 151 of the Code before Mrs. Rekha Rani, Sub Judge 1st Class, Chandigarh wherein it was averred that in view of the directions contained in the judgment dated 23-11-1987 by G. C. Mital, J. warrants of possession in execution of the decree for ejectment should be issued. It was pointed out therein that out of the total amount of Rs. 1,00,000/- upto 31-12-1987 she or Shri Bhalur had deposited Rs. 64,700/- only, leaving a balance of Rs, 35,300/-. This application was, however, dismissed by the learned executing Court on 12-1-1988 with the following observations:

"I have gone through the statement given by Shri Baldev Singh Bhalur alongwith S K. Sharma, Advocate, for the J. D. and Amar Singh Chahal, Advocates, in the Court of Shri S.R. Bansal, Additional District Judge, Chandigarh where the appeal against eviction order is pending adjudication. The decree holder has not denied the filing of similar application in the Court of Shri S. R. Barsal, on similar facts for dismissal of the appeal on. 7-12 19(sic)7 I am of the view that it is now for the appellate Court to decide, whether the rent deposited by Sh Baldev Singh Bhalur. in pursuance of statement given by him before Shri S. R Bansal Additional District Judge. Chandigarh is sufficient or not to satisfy, the undertaking given by Shri Baldev Singh Bhalur, along with S. K. Sharma, counsel for the J. D., in order to restrain the decree holder from getting executed the warrant of possession in view of the undertaking given by Shri A. S. Chahal, Advocate, for the decree-holder. It is a common case of the parties that the J.D. had also given an undertaking that in case J.D failed to pay arrears of rent upto the stipulated date, the appeal of J.D. will be deemed to be dismissed. I am of of the opinion that now it is only for the Court of Shri S. R. Bansal, to decide whether the executing Court can proceed with the execution proceedings even after Shri B. S. Bhalur having deposited or paid rent to the tune of Rs. 64.700/- or whether the appeal of the J.D. is liable to be dismissed on account of her having not deposited full arrears of rent."

It is further not in dispute that the respondent filed Civil Revision No. 243 of 1988 in this Court against the aforesaid order dated 12-11 1988 passed by the executing Court, which was dismissed in limine by I. S. Tiwana, J. on February 3, 1988.

12 The above facts have been set out in detail with a view to show that Shri Bhalur had been depositing rent with the Rent Controller at least for the period 1-11-1986 onwards and has in fact deposited rent upto 31-8-1988. No doubt this rent has not been paid to the respondent but it has been deposited in view of the undertaking given by the counsel for both the parties before the Appellate Authority on 28-11 -1987. No. doubt a dispute remains with regard to the rent amounting to Rs 10,000/- and Rs. 24,000/- The first sum was allegedly adjusted by the petitioner towards the repairs of the house for which according to her the respondent has given a receipt and the second sum is the advance rent allegedly paid by Shri Bhalur for one year from l-11-1985 to 3-13-1986 in terms of the alleged agreement dated 20th October, 1985. The matter is pending before the learned Appellate Authority which has to decide whether the "Payment of the balance arrears of rent" in terms of the statement and undertaking of the counsel for the parties before it on 28- 11-1987 has been made by deposit of Rs. 26,700/- by Shri Bhalur on 5-12-1987. Thus the real dispute between the parties is not with regard to the alleged non-payment of rent for the subsequent period on the ground of which the two instant ejectment applications have been filed. The real dispute is whether the relationship of landlord and tenant between them exists and whether Shri Bhalur was inducted as a tenant under the respondent vide agreement dated 20th October. 1985 and whether the payment of rent for the earlier period stands made. All these matters have to be decided by the learned Appellate Authority in the appeal pending before it. Once these matters are decided before the learned Appellate Authority one or the other instant ejectment application without doubt shall be rendered infructuous.

Learned counsel for the respondent placed reliance on Mohan Lal Thapar v. M/s Sarad Ispat Udyog, Chhehrata and Anr. 1978 (2) Rent C. R. 608. In this case the earlier suit was on the ground of non-payment of rent for the period 1st September, 1967 till the date of the filing of the suit on 8th May, 1968. A decree for recovery of Rs. 44,000/- out of which Rs. 42,000/- represented the rent and Rs. 2,000/- interest was passed in favour of the plaintiff and against the tenant-defendent. The tenant did not pay rent for the subsequent period also so another suit was filed on 16th June, 1969 for recovery of Rs. 44,000/-. An application made by the tenant u/s 10 of the Code was dismissed on the ground that the second suit was brought for recovery of rent for a different period then the one which was the subject matter of the first suit. It was, therefore, not based on the same cause of action. There was no dispute between the parties regarding relationship of landlord and tenant nor the rent for the earlier period and the subsequent period had been deposited Mohan Lal Thapar''s case (supra) is, therefore, clearly distinguishable from the facts of the present case.

Learned counsel for the petitioner on the other hand has placed reliance on Gurcharan Singh v. Madan Lal (1968) 70 P. L.R. 955. where it has been held that when the point to be determined in the first application for ejectment before the Rent Controller is really the same which is before the Rent Controller in the second ejectment application and in both of them the question to be determined is whether the relationship of landlord and tenant existed between the parties the proceedings in the second application ought to be stayed. It was further observed that though the period in respect of which the rent had not been paid was different in the two applications that did not mean that the substantial question of dispute between the parties was different. The hearing of the second application was thus stayed In my view the ratio of Gurcharan Singh''s case (supra) applies to the facts obtaining in these petitions. I have, therefore, no hesitation to hold that the learned Rent Controller committed on error in exercise of his jurisdiction by declining the prayer of the petitioner for staying the proceedings in these two subsequent ejectment applications particularly in view of the pendency of the real dispute before the learned Appellate Authority arising out of an earlier ejectment application.

Consequently, I allow these revision petitions and set aside the impugned order dated 1(sic)-7-1987, allow the applications filed by the petitioner u/s 10 of the Code and stay the proceedings in the instant ejectment applications before the learned Rent Controller till the decision of the appeal above mentioned, pending before Shri S. R. Bansal, Appellate Authority, Chandigarh. The parties are, however, left to bear their own costs.

It would not be out of place to mention here that the respondent, because of the pending disputes between the parties, has not received the rent at least for the period 1-11-1986 onwards and thus rent for nearly 23 months is payable to her. The petitioner and Shri Bhalur the alleged new tenant are husband and wife. They are living together in the same house For the purpose of payment of rent it is hardly material who out of the two of them is the tenant under the respondent. This question may be material for decision of the ejectment applications and the appeal pending before the Appellate Authority but there is no ground whatsoever to withhold payment of rent to the respondent. I, therefore, direct that the amount of Rs. 45,600/- which has been deposited by Shri Bhalur in the Court of the Rent Controller for the period 1-11-1986 onwards should be paid to the respondent and she should be allowed to withdraw the same from the said Court. Without prejudice to her rights in the appeal and the ejectment aplications aforesaid. Shri Bhalur shall continue depositing rent for the future period also and the respondent shall withdraw the same, again without prejudice to her rights, at least till the matter is finally decided by Shri S. R. Bansal, the learned Appeallate Authority.