Shiv Charan Kaur vs Surjit Kaur

A.L. Bahri, J.—Courts are arenas where parties are expected to participate in the bouts yielding in results. However, present is such a case, where one after the other, there were bouts between the Sand lady and her tenant in different Courts and even after expiry of years, they are at square one. All this happened on account of an illegal order passed by the Rent Controller purporting to finally disposing of an application filed by the landlady u/s 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the ''Act'') as applicable in Chandigarh as far back as August 28, 1986. Vide this order, ejectment of the tenant Shivcharan Kaur was ordered from House No. 3055, Sector-20/D, Chandigarh. This order was challenged before the Appellate Authority; wherein'' on the basis of a compromise order of ejectment was passed and the appeal was disposed of vide order dated April 29, 198 7. On fulfillment of certain conditions of the compromise, the case was to stand as remanded to the Rent Controller for fresh decision after allowing opportunity to the tenant for filing the written statement and thereafter opportunity to the parties to lead evidence. This order was challenged in the High Court in the Revision Petition, which was decided on August 11, 1987 by D. V. Sehgal, J. The order of the Appellate Authority was set aside as the Appellate Authority had no power of remanding the case even on agreement of the parties. The matter went back to the Appellate Authority. Subsequently under orders dated February 24, 1989 passed by G. R. Majithia, J. the appeal was withdrawn from the Court of Additional District Judge, Appellate Authority and taken up by the District Judge, the Appellate Authority. On March 31. 1989, the Appellate Authority dismissed the appeal. Hence the present Revision Petition by the tenant

At this stage, it may further be pointed out that during the pendency of the aforesaid litigation, there were executing proceedings. Objections were filed to the execution by Sh Baldev Singh Bhalur husband of Smt. Shivcharan Kaur, the tenant, claiming himself to be the tenant of the disputed house. These objections were dismissed, holding that Sh. Baldev Singh had failed to prove his tenancy, This matter again came up to the High Court in Civil Revision No. 3297 of 1987, decided by G. C. Mital, J on November 23, 1988 by affirming the order of the Executing Court that Sh Baldev Singh had failed to prove his tenancy. Some of the observations in this order were mad� with respect to the order passed by D. V. Sehgal, J. in earlier Civil Revision.

The ejectment of Smt. Shivcharan Kaur the tenant, was claimed by the landlady Smt Sirjtt Kaur, inter alia on the ground of non- payment of rent The tenancy started w.e.f. November 3, 1983 under a Rent Note and it was for a period of four years Monthly rent fixed was Rs. 2200/-. The rent was payable in advance before'' the 10th of every month. On doing so, a rebate of Rs. 200/- was allowed The water and electricity charges were separately payable. The rent was required to be deposited in the bank account of the landlady. Uptill November, 1983 the rent was duly paid Thus, arrears were claimed for the period December 1, 1983 to April 30. 1986. It was further mentioned that earlier an ejectment application was filed on the ground of non-payment of arrears of rent for the period December 1, 1984 to September 30, 1985 and the ejectment application subsequently filed was without prejudice of the rights of the landlady to the earlier application

On notice of the ejectment application having been issued, the tenant Smt Shivcharan Kaur put in appearance through her counsel Sh. Baldev Singh, who is also her husband. The first date of bearing was June 13, 1985 The hearing was adjourned to August 28, 1986 for tendering the rent, as it was assured that the copy of the ejectment application was not supplied to the tenant. On August 28, 1986, the following order was passed : -

"Counsel for respondent S. Baldev Singh gave a statement that on 31-10-1985 the tenancy had come to an end and thereafter, her husband was inducted as a tenant by the petitioner. He has also pleaded that all dues were cleared till 25-10-1985. Let an ejectment order be passed against respondent No. 1 for eviction from the premises in dispute. The petitioner can file a civil suit for the recovery of rental dues. No order as to costs Memo of costs be prepared. File be consigned to the record room."

As per statement of Sh. Baldev Singh, Advocate, recorded on August 28, 1986, no rent was due and he did not wish to tender any rent. Tenancy came to an end on October 31, 1989 by mutual agreement alter clearing all the dues. It was thereafter that husband of Smt Shivcharan Kaur was inducied as tenant w.e.f. November 1, 1985 Rent of one year for the period November 1, 1985 to October 31, 1986 was paid in advance against a receipt. It is on the basis of this statement that the Rent Controller passed she aforesaid order of ejectment.

A preliminary objection was raised with regard to maintainability of the Revision Petition as certified copies of the impugned orders were not filed in Court though an application was filed for grant of exemption for filing the certified copies. During arguments learned counsel for the petitioner submitted certified copies of the orders of the Authorities below. Although, copy of the order of the Rent Controller had already been obtained before filing of the Revision Petition, copy of the order of the Appellate Authority shows that copy was applied earlier and the game was supplied after filing of the Revision Petition In this view of the matter, I find no substance in the contention of the learned counsel for the respondent that the revision should be thrown oat on that ground.

As far as order of the Rent Controller is concerned that was pelpably illegal The Rent Controller was required to hold enquiry into the allegations and to give a finding with regard to the existence of the ground on which ejectment could be ordered. Mere denial of the relationship of landlord and tenant per se did not authorise the Rent Controller to pass an order of ejectment. It was incumbent upon the Rent Controller to decide this disputed question. After coming to the conclusion that such relationship existed, it was further expected of the Rent Controller to give a finding regarding proof or otherwise of the alleged ground of ejectment as provided u/s 13 of the Act At this stage it may also be noticed that even by the consent of the parties, order of ejectment could not be passed unless the consent so given established the existence of grounds of ejectment.

In Jai Gopal v. Om Parhash (1979) 81 P. L. R. 680, G. C. Mital, J. while dealing with the case under the Haryana Urban (Control of Rent and Eviction) Act observed as under : -

"No order of ejectment can be passed under the Baryaua Urban (Control of Rent and Eviction) Act, 1973 even on the basis of consent of the parties de horse the grounds contained in the Act. There is a mandatory prohibition contained in Section 13(1) of the Act due to which the Rent Controller is not allowed to travel beyond the statutory grounds mentioned in Section 13(2) of the Act. A reading of Section 13(2) shows that there are numerous grounds on which an order of ejectment can be passed by the Rent Controller but the ground of ejectment on account of for feiture of tenancy on denouncing the relationship of landlord and tenant is not contained therein."

It was further observed :-

"A reading of clause (g) of Section 111 of the Transfer of Property Act would show that the lease of immovable property stands determined even when "the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself" In spite of determination of tenancy on the aforesaid ground such a ground has not been included in Section 13 of the Act to entitle a landlord to seek ejectment of his tenant on denouncing his title. Meaning thereby that in spite of the determination of the tenancy on account of renunciation of the title of the landlord, such a person continues to be a tenant under the Act and is liable to be ejected only on the grounds contained in Section 13(2) of the Act."

Similar view was expressed in Smt. Chhina Devi v. Shri V. P. Johar and Ors. 1981 (2) R. L. R. 313, decided by I. S. Tiwana, J.

8 The Supreme Court in Om Prakash Gupta Vs. Rattan Singh and Another, , in a case under the Delhi Rent Control Act observed as under :-

"Under the Rent Control Law, the special tribunal has to proceed on the basis of relationship of landlord and tenant existing between the parties but a mere denial by the tenant of the tenancy would not suffice to oust the jurisdiction of the special tribunal. It is only when the tribunal comes to the conclusion that such at relationship did not exist that it will have no jurisdiction."

In that case also the tenant had taken up She plea that the premises were let out to the Postal Authorities The aforesaid decision of the Supreme Court was relied upon by Division Bench of this Court in Balbhader and Ors. v. Nidhi Sahitya Sadan (Registrar Sader) Mandi Dabwali 1979 (2) R. L. R. 289, which was a case under the East Punjab Urban Rent Restriction Act." observing that it was the jurisdiction of the Rent Controller to determine the question of relationship of landlord and tenant end simple denial of such relationship could not oust the jurisdiction of the Rent Controller.

In Roshan Lal and Another Vs. Madan Lal and Others, , a case under Madhva Pradesh Accomodation Control Act, it was observed that ejectment of the tenant could be made on one or more of the grounds mentioned in the Act having been proved

The Appellate Authority on the consent of the parties, in view of the decisions aforesaid could not direct ejectment of the tenant unless one of the grounds mentioned u/s 13 of the Act was proved. It was in this context that earlier the High Court set aside the order of the Appellate Authority and directed him to decide the case afresh according to law It was thereafter that the impunged order was passed by the Appellate Authority on March 31. 1989. After narrating the entire history of the case, the Appellate Authority held that the Rent Controller had passed the order in baste. The Rent Controller was desired to hold full-fledged enquiry and to pass a speaking order disposing of the case on merits. The Appellate Authority also referred to Section 16 (3) of the Act that further enquiry could be held by the Appellate Authority. The landlady was willing to participate in such an enquiry; whereas the tenant and her counsel were cot willing. Commenting upon the statement made by Sh. Bhalur counsel for the tenant, it was observed that on own slowing by the tenant, the tenancy rights had come to an end and thus, the tenant could not be said to be aggrieved by the order of ejectment passed by the Rent Controller. It was observed that in such circumstances appeal was not maintainable and it was not expedient to hold further enquiry which ultimately was bound to prove a shere exercise in futility It was observed that the exercising of further enquiry could be undertaken only after doubting the plea of the appellant with regard to the extinction of her tenancy and treating her tenancy as continuing. Thus, the appeal was dismissed.

The approach of the Appellate Authority is net correct. Simply by taking a plea by the tenant that the tenancy had ended by a subsequent agreement between the landlady and another person would not mean that the Rent Controller should cease to have jurisdiction over me dispute, or at the same time to dismiss the ejectment application or to direct the ejectment of such a tenant. Even on repudiation of the tenancy, for the purposes of the Act, the tenant would continue as such till he is ejected it accordance with the provisions of the Act The question as to whether the tenant was in arrears of rent was to be decided after affording an opportunity to the parties to lead evidence. Even if, husband of Smt. Shivcharan Kaur had failed to establish any tenancy in his favour in the execution, on payment of one year''s rent in advance what is its effect on the ejectment application now is another question for determination. At this stage, do comment need be made It is left to the Authorities below to determine the sane Unless and until the landlady produces some evidence regarding the rate of rent and non-payment of rent for the period mentioned in the application, no finding could be arrived at merely on the statement of counsel for the tenant recorded on the first date of hearing. Read as a whole that statement per se does not prove that in fact the tenant was in arrears of rent for the period for which the arrears were being claimed as no opportunity was afforded to the parties to lead evidence in this respect, an enquiry is Required to be conducted.

Since in the earlier Revision a direction was given to the Appellate Authority to decide the appeal after setting aside the under of ejectment passed on compromise of the parties The case could fee remanded to the Rent Controller by the High Court u/s 1(5) of the Act or under Article 227 of the Constitution Since such a course was not adopted at that stage, it is not considered expedient to do so now. Morever, as already observed above, renal of the entire case would take couple of years more While allowing the Revision Petition, for the reasons recorded above, the order of the Appellate Authority is set aside and the case is seat back to the Appellate Authority for decision of appeal afresh with observations that the Appellate Authority would get the written statement from the tenant, frame issues of the disputed questions and allow the parties to lead evidence and thus completing the enquiry dispose of the dispute. It is hoped that within six months, the Appellate Authority would complete the enquiry and decide the appeal.

On behalf of the landlady, it was represented that arrears of rent have already accured during pendency of Revision Petition and the interest of the landlady in that respect should be secured as the tenant Smt. Shivcharan Kaur had continued to remain in possession along with her husband Sh. B. S. Bhullar in the house in dispute. It is in these peculiar circumstances that the direction is given that operation of the order of the Rent Controller shall stand stayed during pendency of the appeal before the Appellate Authority subject to Smt. Shivcharan Kaur or her husband Sh. B S Bhullar depositing the arrears of rent in the Court of the Rent Controller which of course would be subject to the decision of the appeal. An acceptance of the amount by the landlady will be without prejudice to her rights in the appeal. If it is found that Smt Shivcharan Kaur was the tenant, the amount would be adjusted. Likewise, if Sh. B. S Bhullar was held to be the tenant, the payment would be considered to have been paid on his behalf and accepted by the landlady. The arrears would be deposited within one month. In the peculiar circumstances stated above, the parties are left to bear their own costs. The parties are directed to appear before the Appellate Authority on November 15. C. M. stands disposed of.