CR No.5748 of 2008 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5748 of 2008 (O&M) Date of Decision: 04.03.2011 Mrs. Pushpa Ahuja . . .Petitioner Versus Shri Sunil Nagpal and others . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Puneet Bali, Advocate, for the petitioner. Mr.Akshay Bhan, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. This revision petition is filed by the landlord assailing the order dated 11.10.2008 by which an application filed by the tenants under Section 144 of the Code of Civil Procedure, 1908 (for short ‘CPC’) has been allowed. The brief facts of the case are that the landlord let out a part of Industrial Plot No.373, Sector 24, Faridabad on 9.1.1998 to respondents No.1 and 2 @ `9600/- per month. He filed an application under Section 13 of the Haryana Urban (Control of Rent and Eviction), Act, 1973 (for short ‘the Act) against them and M/s Anand Packaging on the ground of non-payment of rent and sub-letting. On 5.9.2006, the tenants were proceeded against ex parte and on 27.11.2007, an ex parte eviction order was passed against them. The landlord obtained possession of the demised premises in execution on 22.2.2008. Thereafter, the tenants filed an application under Order 9 Rule 13 of the CPC on 26.2.2008, which was allowed on 29.8.2008 and the ex parte eviction order dated 27.11.2007 was set aside. The landlord challenged the order dated 29.8.2008 by way of CR No.5396 of 2008, which was dismissed by this Court on 3.10.2008 and was upheld by the Supreme Court as the SLP filed by the landlord was also dismissed. CR No.5748 of 2008 (O&M) - 2 - On 1.9.2008, the tenants filed an application under Section 144 of CPC for recovery of possession after the reversal of order of eviction dated 27.11.2007 by an order dated 29.8.2008, which has become final between the parties. The said application was contested by the landlord by reply dated 29.9.2008 but the Civil Judge (Junior Division) Faridabad vide his impugned order dated 11.10.2008 allowed the said application against which present revision petition has been filed. The learned counsel for the petitioner has raised three grounds to challenge the impugned order, namely, the application under Section 144 of the CPC was filed before the Rent Controller but it has been allowed by the Civil Judge (Junior Division); that since in the earlier eviction petition between the parties, tenants have been ordered to vacate the demised premises, therefore, the relationship of landlord and tenant ceased to exist and that after taking possession of the demised premises pursuant to order dated 27.11.2007, on 22.2.2008, it has been further let out to M/s Fire Chem, B-4, Second Floor, Rama Commercial Complex, Sector 20-B, Faridabad vide agreement dated 25.2.2008, who is in physical possession being a tenant, and has got a stay from the Civil Court. On the contrary, learned counsel for the respondents has submitted that in the State of Haryana, Civil Courts are exercising the powers of the Rent Controller and even if the application is filed under Section 144 of the CPC before the Rent Controller and is decided by the Civil Court, the officer is the same and it is only a matter of not mentioning the name of the Court otherwise the Rent Controller has competence to decide the application under Section 144 of the CPC as well. He also submits that in the impugned order, the Court has already taken note of the earlier litigation between the parties in which stay has been operative, therefore, the relationship of landlord and tenant is still subsisting otherwise the landlord would not have filed a petition for eviction before the Rent Controller under the provisions of the Act if the tenants were in unauthorized possession because in that eventuality, landlord was required to file a Civil Suit under the ordinary civil law for possession. Insofar as the third party rights are concerned, it is submitted that after the reversal of the ex parte eviction order, the status quo ante has to be maintained even if the landlord has inducted some other tenant. In support of his submissions he has relied upon the judgment of the Supreme Court in the case of “Gurjoginder Singh Vs. Jaswant Kaur and another” 1994(3) CR No.5748 of 2008 (O&M) - 3 - Recent Revenue Reports 418 and the Single Bench judgments of this Court in the case of “Basant Ram and others Vs. Smt. Devi and others” 2000 HRR 471, two judgments of the Delhi High Court in the cases of “Smt. Jaswant Kaur Vs. Tikam Dass” 1986(2) RCR (Rent) 425 and “Shri Subash Chander Vs. Shri Rehmat Ullah” 1973 RCR (Rent)566 and the judgment of the Supreme Court in the case of “Kavita Trehan Vs. Balsara Hygiene Products Ltd.” 1994(3) RRR 361 and a decision of this Court in the case of “Maya Ram Vs. Firm M/s Ram Saran Dass Lass and others” 1978(1) Rent Law Reporter 778. I have heard both the learned counsel for the parties and have perused the record. The facts of this case are not much in dispute. In the ex parte ejectment order, possession was taken by the landlord who had inducted another tenant immediately. The ex parte ejectment order has been set aside and the matter has become final between the parties upto the Apex Court. The earlier ejectment orders are sub judice before the Court in which stay is operative. Thus, I would deal with the arguments, one by one, raised by the learned counsel for the petitioner. The first argument is that the application under Section 144 of the CPC was filed before the Rent Controller whereas ex parte order of eviction was executed by the Civil Court in terms of Section 18 of the Act, therefore, the application could have been filed before him and not before the Rent Controller and if the same was filed before the Rent Controller, he could not have decided the same as Civil Court. It is pertinent to mention that in the State of Haryana, earlier Sub Divisional Officers (Civil) were appointed as Controllers in exercise of the powers conferred by Section 2(b) of the Act and the Deputy Commissioners were appointed as Appellate Authorities in exercise the powers conferred by Section 15(1) of the Act but in the year 1978 by virtue of a notification No.S.O./70/H.A-11/73/S-2/78 dated 8.5.1978, the Governor of Haryana in exercise of his power conferred by Clause (b) of Section 2 of the Act, in supersession of all previous notification issued in this behalf, appointed subordinate Judges as Controllers within the limits of their respective jurisdiction and similarly vide notification No. S.O./71/H.A-11/73/S-15/18, exercising his power under Section 15(1) of the Act, the Governor of Haryana in supersession of all previous notifications issued in that behalf, conferred on all the District Judges in the areas of their respective jurisdiction, the powers of Appellate Authority, vide notification dated 23.11.1978, powers under Section 15(1) was conferred CR No.5748 of 2008 (O&M) - 4 - upon Additional District Judge as Appellate Authority and vide notification dated 17.8.1984 published on 21.8.1984, the District Judges and Additional District Judges were given powers of Appellate Authority under Section 15(1) of the Act to hear appeals against the orders passed under Section 4, 10, 12 and 13 of the Act. Thus, the same officer, who deals with Civil Suits as a subordinate Judge was also designated as a Rent Controller, who passes the order of eviction as a Rent Controller and executes the order of eviction under Section 18 of the Act as a Civil Court. It is only error of not mentioning the proper nomenclature otherwise person is the same, having the same powers. Hence, the first argument raised by learned counsel for the petitioner is totally misconceived in view of the decision of the Supreme Court in the case of Kavita Trehan (Supra) in which it has been held that the jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers even where the case do not strictly fall within the ambit of Section 144 of the CPC. In the case of Shri Subash Chander (Supra) and Shri Jaswant Kaur (Supra) , it has been held that the Rent Controller has jurisdiction to restore possession to tenant in exercise of powers under Section 144 of CPC. Similar view has been expressed in the case of Maya Ram (Supra) in which it is held that if the Executing Court also happens to be an authority under the Rent Act, it will not affect its jurisdiction and it can ultimately pass the order of restitution under Section 144 of the CPC or even ex-debito justiciae. The second argument raised by learned counsel for the petitioner is that having lost in the ejectment petition filed by the landlord earlier, the tenants would at the most get the possession but not status of tenant and are thus, liable to pay the mesne profit. To my mind, this argument is totally misplaced because the relationship of landlord and tenant have never come to an end as in the earlier petitions the ejectment order has not been converted into final order and as such the relationship is continuous and is subsisting. The last and final argument is that soon after the ejectment of the tenants the landlord has inducted another tenant, therefore, third party right has crept in and possession cannot be ordered to be delivered. This argument of the learned counsel for the petitioner is contrary to the decision of the Supreme Court in the case of Gurjoginder Singh (Supra) in which it has been held that “we are unable to share the view expressed by the High Court as in our considered opinion, the status of a bona fide purchaser in an auction sale in execution of a CR No.5748 of 2008 (O&M) - 5 - decree to which he was not a party stands on a distinct and different footing from that of a person who is inducted as a tenant by a decree holder – landlord. A stranger auction purchaser does not derive his title from either the decree-holder or the judgment-debtor and therefore restitution may not be granted against him but a tenant who obtains possession from the decree-holder landlord cannot avail of the same right as his possession as a tenant is derived from the landlord”. Similarly, in the case of Basant Ram and others (Supra), it was held by this Court that once a person is held entitled to restitution of possession of property in dispute, he will have the right to get back such property in the same condition as it was already in the possession of the other person and improvement in the property will have no affect as it would not defeat the rights of the respondent merely on the ground that the property has been sold. It was held that the purchaser will be bound by the order passed against the original landlord. In view of the aforesaid discussion, I do not find any substance in the arguments raised by the learned counsel for the petitioner on the basis of which the impugned order has been assailed and as such the present revision petition is found to be without any merit and is hereby dismissed. In view of the peculiar facts and circumstances of the case, both the parties shall bear their own costs. (RAKESH KUMAR JAIN) MARCH 04, 2011 JUDGE vivek