Civil Revision No.632 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.632 of 2011(O & M) Date of Decision:17.08.2011 Bijender Singh & anr. ....petitioners Versus Arya Pratinidhi Sabha Haryana & ors. .....respondents Civil Revision No.1367 of 2011(O & M) Date of Decision:17.08.2011 Bijender Singh & anr. ....petitioners Versus Arya Pratinidhi Sabha Haryana & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Shiv Kumar, Advocate for the petitioners *** RAKESH KUMAR GARG, J. This judgement shall dispose of two civil revisions i.e.Civil Revision No.632 of 2011 and Civil Revision No.1367 of 2011, arising out of one common judgement of the Appellate Authority, Faridabad. However, for convenience sake, the facts are taken from Civil Revision No.632 of 2011. Respondent No.1 filed ejectment petition seeking ejectment of respondent Nos.2 to 5 from the land in dispute measuring 7 kanal on the averments that the landlord vide lease deed dated 26.07.1995 had leased Civil Revision No.632 of 2011 2 out the land in dispute to respondent No.2 for 20 years on a yearly rent of ` 15,000/- and as per the said agreement the rent was to increase @ 10% after every five years. Thus, at the time of filing of the petition, the rent was ` 16,500/- per annum. Respondent No.2 was in arrears of rent since 01.01.2000 for four years and ten months which comes to ` 79,750/-. It was further averred that respondent No.1 had also leased out land measuring 11K-8M(subject matter of Civil Revision No.1367 of 2011) to Mr.Anil Kumar Gupta, respondent No.2 in Civil Revision No.1367 of 2011, who sub-let the same in favour of Mr.S.K.Singla, respondent No.3 in Civil Revision No.1367 of 2011, who later on sub-let it in favour of respondent Nos.4 and 5 in Civil Revision No.1367 of 2011 vide lease deed dated 30.04.2003 Thus, the respondent Nos.2 to 5 in Civil Revision No.632 of 2011 and respondent Nos. 2 to 5 in Civil Revision No.1367 of 2011 were liable to be evicted from the premises in dispute as respondent Nos.2 to 5 in both the cases were in arrears of rent and had sub-let the land in question in favour of respondent No.3 in each case vide lease deed dated 08.01.1997 without the consent of respondent No.1, who later on sub-let it in favour of respondent No.4 and 5 vide lease deed dated 30.04.2003 the land in dispute which is subject matter of both the Civil Revisions without the consent and knowledge of the respondent-landlord. It was further averred that the tenant-petitioners have ceased to occupy the above mentioned land for more than four months and the same was lying vacant. Upon notice, respondent No.2 in both the cases did not appear in the Court and were proceeded against ex parte. Respondent Nos.3 to 5 in both the cases filed their written statement raising certain preliminary objections. On merits, it was denied that the rate of rent was ` 16,500/- per annum. It was also denied that respondent No.2 has not paid the rent since 01.01.2000. It was further stated that respondent No.3 had deposited a sum of ` 1,03,500/- on 31.03.2004, ` 25,000/- on 02.04.2004, Civil Revision No.632 of 2011 3 ` 25,000/- on 01.05.2003,` 28,500/- and ` 656/- on 10.01.2005, respectively. It was admitted that respondent No.1 had leased out the land to respondent No.2 vide lease deed dated 26.07.1995. A specific stand was taken that the petitioners and respondent No.3 had obtained leasehold rights from respondent No.2 with the consent of Sh.Hukam Singh Rathi, the representative of respondent No.1 and at that time no objection was raised by the representative of the petitioner in any manner, whatsoever. Denying rest of the contents of the petition, dismissal of the ejectment petition was sought. From the pleadings of the parties, the following issues were framed by the Rent Controller, Faridabad: 1. Whether the respondents are liable to be evicted from the premisses in question on the ground as alleged in the petition? OPP 2. Whether the petitioner has no locus standi to file the present petition? OPR 3. Whether the petitioner has no cause of action to file the present petition? OPR 4. Whether the petition is bad for want of concealment of material facts by the petitioner from the Court? OPR 5. Relief. It is pertinent to mention, at this stage that respondent Nos.3 to 5 were also proceeded against ex parte vide order dated 06.12.2007 and no evidence was led by them to the evidence led by the respondent-landlord. The Rent Controller, Faridabad, vide judgement dated 25.05.2009 allowed the ejectment petition and directed respondent Nos.2 to 5 to hand over the vacant possession of the land in question. Civil Revision No.632 of 2011 4 It is pertinent to mention here that the petitioners were not a party before the Rent Controller, Faridabad. However, they filed appeal before the Appellate Authority and in the appeal they claimed that respondent Nos.4 to 5 have further sold their leasehold rights vide registered sale deed of leasehold rights dated 10.11.2004 in their favour and thereafter they had raised construction on the land in question. It was also submitted by the petitioners before the Appellate Authority that they had filed a petition under Section 6A of the Haryana Urban(Control of Rent & Eviction) Act, 1973,(in short 'the Rent Act) against respondent No.1 for deposit of rent of suit land on 29.07.2009 in which respondent-landlord appeared on 20.08.2009 and filed his written statement dated 27.08.2009 disclosing, the eviction order dated 25.05.2009 against respondent Nos. 2 to 5. It was further stated before the Appellate Authority that the said ejectment order was obtained by the respondents-landlords in collusion with respondent Nos.2 to 5 by concealment. The Appellate Authority framed following two question for its consideration: 1. Whether the appeals filed by petitioners who were not party before the Rent Controller, are maintainable? And 2. Whether the rent petitions filed by landlord respondent No. 1 were maintainable as lease hold rights were for 20 years and said period has not expired. While holding that appeal on behalf of the petitioners before the Appellate Authority is maintainable, the Appellate Authority observed as under: Issue of maintainability of appeal by present appellant being subsequent transferee of lease hold rights stands covered by judgement of Civil Revision No.632 of 2011 5 Hon'ble Punjab and Haryana High Court in case cited as Kartari Devi vs.Mahender Singh, Civil Revision No.2884 of 2008 decided on 13.01.2010, Hon'ble High Court relying upon judgment of Hon'ble Supreme Court reported as Smt.Saila Bala Dass vs.Smt.Nirmala Sundari Dassi and another, AIR 1958 Supreme Court 394 concluded that assignee of property during the pendency of suit has a right to file an appeal. In view of authoritative pronouncement of Hon'ble Supreme Court and Hon'ble High Court it is held that appeal filed by present appellant is maintainable. The delay in filing present appeal has been condoned by separate order of even date. However, the Appellate Authority found that in view of the terms and conditions of the lease deed dated 20.07.1995 which was not in dispute, the lessor was entitled to dispossess the lessee from the land in dispute, if the lessee does not pay the rent every year and rent for two years becomes due against the lessee and further that the lessee could transfer the property or induct a partner during the subsistence of lease only with written consent of the lessor and since these conditions were breached by the respondents, therefore, they were liable to be ejected. The observations of the Appellate Authority read as follows: As noted above the landlord was within its rights to terminate lease if tenant/lessee defaults in payment of rent and arrears for two Civil Revision No.632 of 2011 6 years become due. Similarly it was also agreed between the parties that lessee may sub-lease the land, however, this was subject to condition that lessee shall take written permission in this regard from the lessor. In the present case, the facts are not in dispute. It is own case of the appellant that rent from 01.12.2006 to 30.07.2009 was payable and accordingly he had filed petition under Section 6-A of 1973, Act to pay the arrears of rent. The said petition was filed on 29.07.2009. It is also not in dispute that no written permission was accorded for executing sub-lease by the landlord. From the above noted conditions it is clearly made out that by virtue of conditions laid down in lease deed parties had agreed to terminate lease in the event of arrears of rent for more than two years. In present case also, admittedly the arrears of rent were for more than two years and therefore, the forfeiture clause agreed by parties had come in operation. In view of judgment of Hon'ble Supreme Court in V. Dhanpal Chettiar Vs. Yesodai Ammal (Supra) when forfeiture clause come in operation and Rent Act is applicable then it is not necessary to terminate contractual relationship by issuing notice to quit under section 106 of Transfer of Property Act. In present case also, the forfeiture had set in and therefore, the only remedy available to landlord-respondent was to file an Civil Revision No.632 of 2011 7 eviction petition. Learned counsel for appellant has argued that the forfeiture must have occurred at the time of filing of rent petition i.e. on 30.10.2004. Even on the date of filing of suit, respondent-landlord had asserted that lessee is in arrears of rent since 01.01.2000 and has failed to pay rent in spite of repeated requests. It was the case of respondents No. 2 to 4 that they had paid rent only on 31.03.2004, 02.04.2004, 01.05.2003 and 10.01.2005, however, no evidence to this effect has been led by them. Even if these receipts are taken as gospel truth even then it is clearly proved that respondents-lessee/sub lessee were in arrears of rent for more than 2 years as landlord has clearly proved arrears since 01.01.2000. Therefore, even on the date of filing of rent petition termination of lease under lease deed dated 26.07.1995 had set in as lessee/sub lessee were in arrears of rent for more than two years. Therefore, once lease stood terminated, the only remedy available to parties was to agitate their grievances under the provisions of 1973, Act which landlord has rightly resorted to. The judgment of Hon'ble Supreme Court and Hon'ble Court cited as The State of H.P. (through the Secretary for Forests, Ministry of Forests), Simla Vs. Ram Piari and others, 2009 (1) RCR 67 & Modern Hotel Gudur represented by M.N. Naryanan Vs. K. Radhakrishnan and Civil Revision No.632 of 2011 8 others, 1989 (2) RCR 306 are not applicable to the facts and circumstances of the present case. In judgment cited as The State of H.P. (through the Secretary for Forests, Ministry of Forests), Simla Vs. Ram Piari and others (supra) the lease was perpetual lease without having any clause for termination of lease before time. In judgment cited as Modern Hotel Gudur represented by M.N. Naryanan Vs. K. Radhakrishnan and others (supra) Hon'ble Supreme Court had held that in case forfeiture of lease is provided and said forfeiture occurs before the expiry of lease period, in that case Rent Act shall be applicable. In present case, lease stood forfeited and terminated before efflux of time under the conditions of lease deed, therefore, lessee had become a tenant under 1973, Act and accordingly, rent petitions were filed. Rent petition filed by respondent-landlord were maintainable and have rightly been decided. On merits also, present appeal deserves to be dismissed. In present case, facts are not in dispute. The sub-tenancy without permission of respondent-landlord duly stands proved as appellant himself admitted to be sub lessee/sub tenant and it is not the case of appellant that the lease in favour of appellant was executed with written permission of respondent- landlord as was agreed between the parties vide Civil Revision No.632 of 2011 9 lease deed dated 26.07.1995. Still not satisfied, the petitioners have filed the instant revision petitions. I have heard learned counsel for the petitioners and have perused the impugned orders/judgements. Certain facts are not in dispute, which are as under: 1. That lease deed dated 20.07.1995/26.07.1995 executed by landlord in favour of Anil Kumar Gupta/G.R. Singhal was duly registered. 2. That rate of rent was agreed between the parties as Rs. 15,000/- per year. 3. That respondent No. 2 Anil Kumar Gupta/G.R. Singhal had sold their lease hold rights vide sale deeds dated 08.01.1997 registered on 22.01.1997 in favour of respondent No. 3 – S.K. Singla. 4. That Shri S.K. Singla had further sold the hold rights in respect of suit properties in favour of respondents No. 4 and 5 vide registered sale deeds dated 30.04.2003. 5. That respondents No. 4 and 5 had further sold lease hold rights in favour of present petitioners vide sale deeds of lease hold rights dated 10.11.2004. It is also relevant to refer to relevant terms and conditions as agreed between the parties vide lease deed dated 20.07.1995 which are as under: Now party No.1 lessor Sabha has agreed to lease out its 11 kanals 8 marlas land Civil Revision No.632 of 2011 10 to party No.2 lessee today on 20.07.1995 for twenty years i.e.from 20.07.1995 to 19.07.2015 and party No.2 lessee has agreed to take the said land on lease for twenty years on the following conditions: That sum of Rs.15,000/- per annum has been settled as rent/lease amount which shall be paid to lessor Sabha by the lessee every year against receipt. That in case the lessee does not pay the rent every year and rent for two years become due against the lessee, then the lessor Sabha would be entitled to dispossess the lessee from the land after giving notice to the lessee. That the lessee may subject or transfer the property or may induct a partner during the subsistence of lease on similar conditions stipulated in present lease with written consent of lessor Sabha. The fact that tenant/petitioners were in arrears of rent for more than 2 years, is not in dispute. It is the petitioners' own case that rent from 01.12.2006 to 30.07.2009 was payable and accordingly they had filed petition under Section 6 A of the Rent Act to pay the arrears of rent on 29.07.2009. It is also not in dispute that no written permission was accorded for execution of the sub-lease by the landlord. In view of the aforesaid facts and keeping in view the terms and conditions of the lease deed dated 26.07.1995, it is clearly made out that the parties to the lease deed had agreed to terminate the lease if Civil Revision No.632 of 2011 11 the arrears of rent for more than 2 years. In the present case, admittedly, arrears of rent were more than 2 years and therefore the forfeiture clause agreed by the parties had come in operation and the respondent-landlord was justified in filing the eviction petition. Not only this, as per the conditions, the lessee was not entitled to sub-let the land in dispute without the written consent of respondent No.1-landlord, whereas in the present case, admittedly petitioners have been sold leasehold rights by respondent No.2 to 5 in contravention of the aforesaid terms and conditions. Thus, no fault can be found with the findings of the courts below and the petitions being without merit are dismissed. (RAKESH KUMAR GARG) JUDGE 17.08.2011 neenu