CR No.4404 of 2011 (O & M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4404 of 2011 (O & M) Date of decision: 22.07.2011 Bhag Singh ..Petitioner Versus Puran Chand Arora .. Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.R.K. Gautam, Advocate for the petitioner. RAKESH KUMAR GARG J. (ORAL) By way of instant revision petition, the petitioner has sought quashing of order dated 11.11.2009 (Annexure P-4) to the extent of condition imposed by the Executing Court upon him to clear the arrears of rent pending against him during the pendency of the execution proceedings, order dated 28.09.2010 (Annexure P-5) vide which provisional rent at the rate of Rs.2500 p.m. has allegedly been assessed during the pendency of execution proceedings, order dated 23.10.2010 (Annexure P-6) issuing warrants of possession of the demised premises without taking any decision upon the application of the petitioner for setting aside the ex parte decree dated 22.05.2009 and order dated 15.06.2011 (Annexure P-10) vide which the application for modification of the aforesaid orders has been dismissed illegally. Briefly stated the respondent filed an eviction petition against the petitioner seeking his eviction from the demised premises by alleging that the petitioner was inducted as a tenant at a monthly rent of Rs.3000/- p.m. CR No.4404 of 2011 (O & M) ::2:: from May, 2006 and was in arrears of rent. Petitioner denied the relationship of landlord and tenant. The Rent Controller passed the following order on March 23, 2009: " Present: Counsel for the parties. Arguments on assessment of provisional rent heard. Perusal of pleadings of respondent, in his written statement in para No.2 reveals that there is no relationship of landlord and tenant between the parties. This particular plea of the respondent clearly show that relations of landlord and tenant are denied by respondent as same are not admitted. In these circumstances, at this stage, provisional rent cannot be assessed. Now, to come upon 21.4.2009, the date already fixed for evidence of the petitioner". The petitioner was proceeded against ex parte vide order dated 21.04.2009. The Rent Controller passed an ex parte decree of eviction against him on 22.05.2009. As per the averments made in this petition, the petitioner came to know about the passing of the ex parte decree on 13.08.2009 when the Court Officials reached at the demised premises to execute the warrants of possession. Thereafter, the petitioner moved an application dated 25.08.2009 (Annexure P-1) under Order 9 Rule 13 C.P.C. with a prayer for setting aside the ex parte decree dated 22.05.2009 alongwith an application dated 25.08.2009 (Annexure P-2) for staying the execution proceedings. The Executing Court vide order dated 11.11.2009 (Annexure P-4) stayed the execution proceedings subject to the condition that petitioner will clear the entire arrears of rent pending against him. The relevant part of the order dated 11.11.2009 (Annexure P-4) reads as follows: "After hearing the rival contentions of both the counsels, I am of the considered view that the ex-parte CR No.4404 of 2011 (O & M) ::3:: decree was passed on 22.5.2009, in which the J.D. had appeared and even had filed written statement and when the issues were framed, the J.D. failed to appear and resultantly proceeded against ex-parte. The present application is moved by applicant/J.D. to delay the execution proceedings. From the above mentioned fact it is clear that J.D. had appeared in the main petition and subsequently, he was proceeded against ex-parte and ex-parte decree was passed against J.D./applicant, so under the given circumstances and in the interest of justice, this application moved by applicant/J.D. for staying the execution is allowed with the conditions that the JD/applicant will clear entire arrears of rent pending against him to the D.H. Therefore, the execution proceedings is stayed till the payment of entire arrears of rent, if the JD/applicant failed to clear entire arrears of rent then, the operation of execution proceedings against the J.D./applicant come in into force and the stay granted vide this order will be vacated automatically." Instead of making the payment of arrears of rent within the stipulated period, the petitioner moved an application before the Executing Court submitting that he was not clear about the arrears of rent. The submissions made on behalf of the petitioner before the Executing Court in this regard is worth noting which reads as under: "On the other hand the Ld. Counsel for the J.D. argued that the Court has passed a conditional order that proceedings of execution will be stayed subject to the CR No.4404 of 2011 (O & M) ::4:: entire pay of the rent, but in the main petition rent has not been assessed yet. So, it is not clear what amount is to be tendered by the J.D. He further argued that the J.D. has already paid the rent to the D.H. and no due is left. He further argued that the J.D. has already given Rs.2500/- to the D.H. for the marriage of his son. He further argued that D.H. is not the owner of the demised premises." Vide order dated 28.09.2010 (Annexure P-5) the Rent Controller passed the following order: "Keeping in view the facts and circumstances, Rs.25,00/- per month is assessed as monthly rate of rent. As far as period of non-payment of rent is concerned, the petitioner/D.H. alleges that respondent/J.D. has not paid the rent from August, 2006 till date and on the other hand respondent/JD alleges that the has paid the entire arrears of rent, but no document or receipt has been produced on record by the respondent to this effect, it was upon the respondent to prove that he has paid the rent, but the same has not been proved. Therefore, respondent is hereby directed to pay above said provisional rent from August, 2006 till date. Therefore, respondents is hereby directed to pay above said provisional rent from August, 2006 till date, alongwith interest @ 6% per annum @ Rs.2500/- per month. Cost is also assessed as Rs.500/- which is to be paid by JD/respondent to D.H./petitioner. The total amount comes out to be assessed Rs.1,38,312.50/-. Now file be put up on 23.10.2010 for payment of entire arrears of rent otherwise the conditional stay already granted by the court will be vacated and warrants of possession will be issued." Instead of tendering the rent as per the order dated 28.09.2010, CR No.4404 of 2011 (O & M) ::5:: which was a condition for continuation of conditional stay order dated 11.11.2009 of the execution of the ex parte decree against the petitioner, it was requested on his behalf that they want to file objections and an adjournment be granted. Thus, in the facts and circumstances, the Executing Court vide order dated 23.10.2010 issued the warrants of possession. Thereafter, petitioner moved another application dated 15.11.2009 praying that the order dated 11.05.2009, 28.09.2010 and 23.10.2010 be modified to the extent that he will clear the entire arrears of rent and the aforesaid order be not implemented till the final decision of the application under Order 9 Rule 13 CPC. The Executing Court vide order dated 15.06.2011 (Annexure P-10) rejected the said application. Challenging the aforesaid orders as mentioned above, learned counsel for the petitioner has raised the following arguments before this Court:- that the Executing Court has exceeded its jurisdiction while assessing rent at the rate of Rs.2500 p.m. whereas it is proved from the documents on record of the case that he was inducted as a tenant at a monthly rent of Rs.1000/-. It has been further argued that the Executing Court has gone behind the decree as no rent can be assessed in an execution proceedings and thus, the Executing Court has erred at law while observing that since the assessment of provisional rent was not challenged, the petitioner was not entitled to stay. Counsel for the petitioner also argued that there was no question of payment of any rent to the respondent as relationship of landlord and tenant has been denied and the respondent was not proved to be the landlord of the petitioner. Learned counsel for the petitioner in support of his case has also relied upon the judgments of this Court in the case of S.K. Kalia versus Om Parkash and others, 2011 (1) RCR (Rent) 154 and M/s Chopra Jewellers versus Rajender Pal Gupta, 2010 (1) RCR 228 to contend that CR No.4404 of 2011 (O & M) ::6:: if the relationship of landlord and tenant is denied by the tenant then the Rent Controller is not supposed to assess the rent and to give an opportunity to the tenant to tender the rent. Heard the learned counsel for the petitioner and have perused the impugned orders and the averments made in this petition, the arguments raised by learned counsel for the petitioner seems to be attractive in the first instance but are liable to be rejected outrightly keeping in view the facts and circumstances of the case. Admittedly, vide ex parte decree dated 22.05.2009, the eviction of the petitioner has been ordered from the demised premises on the ground of non-payment of rent. Vide order dated 11.11.2009 the Executing Court, on the application of the petitioner for staying execution against him, has allowed his prayer by putting a condition that he will clear arrears of rent pending against him to the decree holder. Instead of making payment of arrears as per the ex parte decree dated 22.05.2009, the petitioner himself moved an application for assessment of the rent and invited order dated 28.09.2010 vide which a total sum of Rs.1,38,312.50/- payable by the petitioner was assessed. Aforesaid two orders were not challenged by the petitioner and instead of complying with the aforesaid orders, but to enjoy the stay against his eviction in the execution proceedings, he wanted adjournment for filing objections to executions proceedings and since he failed to make the payment of arrears of rent as per the orders of the Executing Court, which was a condition precedent for staying the execution, the Executing Court had no option but to issue warrants of possession vide order dated 23.10.2010. Again this order was not challenged and petitioner filed another application on 15.11.2010 for modification. Under the garb of this modification application, the petitioner, in fact, raised all possible objections to the ex parte decree and the earlier orders of the Executing Court. CR No.4404 of 2011 (O & M) ::7:: Thus, instead of complying with the conditions of making the payment of the payment of the arrears of rent as per the decree dated 22.05.2009 and the order of conditional stay dated 11.11.2009 (Annexure P-4), the petitioner made every effort to delay the execution of warrants of possession against him. The equity is not in favour of the petitioner. In spite of the facts that it has been averred by the petitioner that he has filed an application (Annexure P-1) for setting aside the ex parte decree dated 22.05.2009, on 25.08.2009, the petitioner has not brought before this Court, the status of the said proceedings, not even a whisper has been made in the whole of the petition as to what happened to his application for setting aside the ex parte decree filed under Order 9 Rule 13 CPC. Even before this Court, learned counsel for the petitioner was unable to say anything regarding the aforesaid application. The arguments raised by the petitioner that the Executing Court cannot go behind the decree and assess provisional rent, is in fact misleading in the facts and circumstances of the case as Decree of Eviction stood passed against him on the ground of non-payment of rent as averred by the landlord and the same was quantified by the Executing Court at the instance of the petitioner to facilitate the conditional stay order granted in his favour. Even otherwise while executing a Decree of Eviction on the ground of non-payment of rent, the Executing Court has to quantify the arrears of rent for satisfying the decree. Similarly, the argument of learned counsel for the petitioner that respondent is not proved to be his landlord is frivolous in the face of ex parte decree dated 22.05.2009. Admittedly, petitioner has not paid any arrears of rent/damages for use and occupation of the demised premises to the respondent-landlord since the filing of the eviction petition against him. Even at the asking of this Court as to whether the petitioner was ready to pay the entire arrears of rent as per the pleadings made in the eviction application by the CR No.4404 of 2011 (O & M) ::8:: landlord, learned counsel appearing on behalf of the petitioner refused on the ground that since there is no relationship of landlord and tenant, petitioner was not bound to pay any rent to the respondent. The stand taken by the petitioner is wholly erroneous and is against equity also. A decree for eviction has already been passed against him on the ground of non-payment of rent and he is seeking stay of the execution of the aforesaid decree in execution proceedings without making payment of a single Paisa to the respondent-landlord and wants to delay the execution of the warrants of possession by raising all kinds of frivolous objections. In this view of the matter, this Court finds that the stand taken by the petitioner is wholly unjustified and, in fact, he is delaying the judicial process of execution of a decree dated 22.05.2009 which is still enforceable against him. Consequently, this revision petition is dismissed with costs which is assessed as Rs.10,000/-. The cost be deposited with Punjab Legal Services Authority, Chandigarh, within one month from today. In case of his failure, the Authority shall be at liberty to recover the same. (RAKESH KUMAR GARG) July 22, 2011 JUDGE Sukhpreet