IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: Civil Revision No. 5185 of 2008 DATE OF DECISION : July 6,2009 M/S Gawritex Industries Limited, Panchkula .......Petitioner versus Sqn. Ldr. Gurdial Singh (Retd.) & others ......Respondents CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. Gurpreet Singh, Advocate for the petitioner. Mr. Balram Gupta, Sr. Advocate with Mr. Shikeesh Gupta, Advocate for the respondents. NIRMALJIT KAUR, J. The facts, in short, are that the lease deed dated 01-01-2004 was executed between the landlord Sqn. Ldr. Gurdial Singh and other respondents and the petitioner-tenant, on the other side. The lease money, to be paid by the petitioner-tenant was Rs.1,11,000/- per month payable in advance by the 7th of each calendar month. The lease was for a period of five years but terminable at any time, by either of the parties, by giving three months' notice in writing. In accordance with Clause 8 of the lease deed, the petitioner decided to vacate the premises and terminated the lease by sending notice dated 19-07-2004. The petitioner-tenant separately issued Legal notice dated 26-08-2004 and a communication dated 18-10-2004, informing respondent No.1 that the petitioner-tenant was vacating the premises on 19-10-2004. After the vacation of the tenanted premises on 19-10-2004, another communication dated 20-10-2004 and Civil Revision No. 5185 of 2008 -2- 06-11-2004 was sent, informing the landlord-respondents that he had vacated the tenanted premises. The respondent-landlord, inspite of vacating the premises by the tenant, filed civil Suit for possession by way of ejectment and for recovery of Rs.4,09,00/- i.e. Rs. 4,00,000/- by way of mesne profits + Rs.9000/- as interest thereon. However, the suit was dismissed with the following findings and observations :- “ Onus to prove these issues was upon the plaintiffs. Plaintiffs have not adduced any evidence nor do they have themselves stepped into witness box. Evidence of plaintiffs stood already closed. Even otherwise, the suit of the plaintiff, based on Chandigarh Administration Notification dated 07-11-2002 for ejectment and mesne profits and damages as framed is not maintainable as said notification is quashed by Hon'ble Supreme Court in judgment titled as Vasdev Singh vs. UOI 2006(2) Rent Control Report 561.” Thereafter, after 3 ½ years of the petitioner-tenant having sent the notice dated 19-07-2004 under the East Punjab Urban Rent Restriction Act, 1974, a rent petition was filed by the respondent-landlord. The petitioner-tenant filed a detailed reply, stating in para 6 of the preliminary objections that the premises have already been vacated and no relationship of landlord and tenant exists. It is also stated before this Court by learned counsel appearing on behalf of the petitioner that an application under Order 14 Rules 1 and 2 has also been filed by him in the Rent Petition to adjudicate upon the issue as to whether there exists a relationship of the landlord-tenant between the parties or not. Civil Revision No. 5185 of 2008 -3- However, the Rent Controller, U.T. Chandigarh vide order dated 28-08-2008 heard the parties and passed a provisional order assessing the rent at the rate of Rs.1,11,000/- payable w.e.f. July, 2004 along with costs assessed at Rs.1000/- and interest. Aggrieved, the respondent has filed the present Revision Petition, challenging the order dated 28-08-2008 vide which the rent has been provisionally assessed. Learned counsel Mr. Balram Gupta, Sr. Advocate with Mr. Shikeesh Gupta, Advocate for the respondent vehemently argued that the petitioner-tenant was required to hand over the actual and physical possession of the demised premises to the respondent as per the terms and conditions of the lease deed. Since, the same has not been done, it does not amount to vacant possession. It was, further, argued that, in fact, an agreement R-1 has been signed between Amit Gawri, the present petitioner who was the tenant at the Ground Floor and Ajay Partap, who is the tenant at the basement of the said building for sharing the window. Reliance has been placed on this agreement to show that the petitioner had, in fact, sub-let the premises. Thus, due to the signing of the agreement with the other tenant, in the basement, amounts to subletting. Reliance was further placed on R-3 to show that the vacant possession had not been handed over. R-3 is a telegram, requesting the petitioner to intimate the time and date of handing over the possession of the leased ground floor. On the other hand, learned counsel for the petitioner submitted that the demised premises, in dispute, stood surrendered as vacated by Civil Revision No. 5185 of 2008 -4- the petitioner after terminating the lease through the legal notice dated 19-07-2004 by Regd. Post which was duly received and duly replied by the respondents and on expiry of period of three months, that is to say, on 19-10-2004, the premises stood surrendered and vacated as per agreed terms and conditions stipulated in clause 8 of the lease deed dated 01-01-2004. Further, there was no relationship of landlord and tenant between the parties. Moreover, a Civil Suit had already been dismissed. The present eviction petition has been filed after 3 ½ years. In fact, there was refusal by the landlord to take possession of the demised premises. After hearing learned counsel for the parties, I find force in the arguments of the learned counsel for the petitioner. While raising his first argument that once the landlord-tenant relationship is denied, the Rent Controller cannot pass any order of provisional assessment of rent, learned counsel for the petitioner relied on the cases titled as Yashpal Singla v. Vijay Kumar 2004(3) P.L.R. 504, Narinder Singh vs. Sarabjit Singh 2006(2) R.C.R. (Rent) 226, M/s Rachitech Engineering Pvt. Ltd. vs. M/s Kundan Steel Pvt. Ltd. 2007(1) R.C.R. (Civil) 218, Jagdamba Tea Factory, Amritsar vs. Parshotam Kishan 2008(4) Law Herald (P&H) 2730, Rakesh Wadhawan & Ors. vs. Jagdamba Indusrial Corporation & Ors. P.L.R. Vol. CXXXI 2002(2) 370. This Court, in the case of Yashpal Singla (supra), held in para 7 of the judgment as follows :- “ Once the tenant has denied the relationship of landlord and tenant, then there would be hardly any justification for the Rent Controller to frame an assessment order in pursuance to the provisions of proviso of Section 13(2)(1) of the Act as interpreted by the Supreme Court in the case of Rakesh Wadhawan (supra). After the evidence has been led by the landlord showing the relationship of landlord- Civil Revision No. 5185 of 2008 -5- tenant, then there would be no justification to permit the tenant to deposit the arrears of rent in accordance with the interim assessment order of rent. Such an approach would create imbalance of equities and would hardly be justified. Therefore, I have no hesitation in rejecting the argument raised by learned counsel and reiterate my view taken in the cases of Ramanand Shastri (supra) and Kukma Devi (supra).” The said view point has been followed thereafter in another judgment of this Court, titled as Narinder Singh (supra) as well as Jagdamba Tea Factory, Amritsar (supra). In the present case also, the tenant took a specific stand in para 6 of his reply to the Rent Petition, which reads as follows : “ That the East Punjab Urban Rent Restriction (Extn. to Chandigarh) Act, 1974 is not applicable to the facts and circumstances of the case as there is no relationship of landlord and tenants in view of the facts as stated above after 19-10-2004. This Hon'ble Court has got no jurisdiction to decide the present case.” Thus, in view of the above stand in para 6 of the reply to the petition under East Punjab Urban Rent Restriction Act, 1974 that there was no relationship of landlord and tenant, and also in view of the notice dated 19-07-2004 for termination of the lease and communication dated 20-10-2004 after the expiry of the notice period on 19-10-2004, it is sufficient for the Rent Controller to refuse to give an interim or provisional order, assessing the amount of rent. The interest of the landlord stands protected because, in case, the relationship of landlord and tenant is subsequently established, the tenant loses the opportunity of Civil Revision No. 5185 of 2008 -6- making payment towards arrears of rent and is liable to be evicted without any further opportunity. The arrears of rent are always liable to be recovered from tenant through the recovery suit. Learned counsel for the respondents, however, submitted that the said judgments are not applicable in the facts of the present case as all these judgments relate to a situation where the landlord has changed due to either the death of the landlord or because of the demised premises, having been sold. However, this plea is without any substance on account of the fact that the principle laid down in all these judgments, would be duly applicable in the facts of the present case and it is the consistent view in all the cases that the Rent Controller is not under any obligation to pass a provisional order assessing the rent, once the relationship of the landlord and tenant has been denied because once, the relationship of landlord and tenant is ultimately established, the consequences on account of non-payment of arrears of rent, in any case follow and the tenant will not get any opportunity to deposit the said rent and is immediately liable for eviction. Thus, no grievance is caused to the landlord, at this stage and his interest is protected. Moreover, the facts enumerated below are self speaking and need no further explanation as to why the order of provisional assessment cannot be sustained. In accordance with Clause 8 of the lease deed, the petitioner decided to vacate the premises by sending the notice dated 19-07-2004. The notice reads as follows :- “ I hereby give you clear notice of three months from today w.e.f. 20-07-2004. I shall vacate the Civil Revision No. 5185 of 2008 -7- premises on 19-10-2004. I would further like to inform you that the security amounting to Rs.3,30,000/- which was paid to you as advance be adjusted as rent for the future three months.” Interestingly, the respondent-landlord refused to accept the same and replied to the notice dated 19-07-2004 as follows :- “ So, you have no right to terminate the lease in question on any day before completion of the month. Thus, your present notice does not meet the requirement of three months clear notice qua the termination of lease, as envisaged in Clause 8 of the said lease deed. ....” It was further stated in the reply as under :- “ So, in view of the facts and circumstances detailed in present reply, you are advised to desist from doing any of the acts as stipulated in the present notice dated 19-07-2004 failing which you would render yourself liable for all the legal consequences thereof.” Thereafter, sensing the intention of the landlord, the petitioner- tenant playing safe, only informed the landlord that he was vacating the premises on 19-10-2004. The language of this communication reads :- “ In this connection, we may inform you that as per our Notice dated 19-07-2004 for vacation of tenanted premises, we are vacating the premises on 19-10-2004. So you are requested to take the premises i.e. SCO No.1108-09, Sector 22-B, Chandigarh.” Knowing what he was up against, the tenant wrote another Civil Revision No. 5185 of 2008 -8- letter dated 20-10-2004 in the following terms :- “ I would like to inform you that I have vacated the tenanted premises SCO No.1108-09, Ground Floor, Sector 22-B, Chandigarh, on dated 19-10-2004, as per notice dated 19-07-2004 and one other letter dated 18-10-2004. This is for your kind information.” Thereafter, the Civil Suit filed by the landlord-respondent was also dismissed. Now after 3 ½ years of the notice of having vacated the premises, the rent petition has been filed. In view of the above facts, the present litigation is nothing but a dishonest litigation. The communication of the landlord dated 29-10-2003 (R/3) after 81 days appears to be nothing but evidence created as an afterthought. Learned counsel for respondents, herein, submitted that the petitioner has not handed over the vacant possession as the part of the window has been sub-let to Ajay Partap. Admittedly, no such ground has been taken by the landlord in the eviction petition. Moreover, even if this ground is subsequently taken, the only relief that can be granted is eviction of the tenant but cannot be a ground for passing of the provisional order of assessment of rent, which is the only subject matter in the present revision. On the facts and circumstances narrated above and taking into consideration the judgments as discussed above, the revision petition is allowed. The provisional order dated 28-08-2008 assessing the rent is set aside. Nothing herein shall have any bearing on the merits of the rent petition pending before Rent Controller. Seeing the long drawn Civil Revision No. 5185 of 2008 -9- litigation, it would be in the fitness of things to direct that the rent petition may finally be concluded within four months. (NIRMALJIT KAUR) JUDGE July 6, 2009 gurpreet Whether to be referred to the Reporter : Yes / No