C.R. No. 5863 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5863 of 2008 Date of Decision: 08.09.2010 Jai Bai .... Petitioner Versus Gurdas Singh ... Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. Chetan Mittal, Sr. Advocate with Mr. Keshav Kataria, Advocate for the petitioner Mr. Rajeev Gupta, Advocate for the respondent Mr. Sanjay Vij, Advocate for respondent No. 3 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) Revisionist has invoked jurisdiction of this Court under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 challenging the order dated 29.7.2008 passed by Appellate Authority, Chandigarh thereby allowing the eviction petition filed by respondent- landlord. Landlord (respondent herein) filed eviction petition on the ground of non-payment of arrears of land w.e.f. 1.4.1993; tenanted premises has become unsafe for human habitation; tenant has materially impaired the value and utility of the house. Initially learned Rent Controller vide judgment dated 23.5.2005 dismissed the petition C.R. No. 5863 of 2008 2 filed by the landlord. However, in appeal learned Appellate Authority allowed the appeal as well as eviction petition filed by the landlord (respondent herein) on the ground that tenanted premises has become unfit and unsafe for human habitation. I have heard learned counsel for the parties and perused the record. Mr. Chetan Mittal, Sr. Advocate assisted by Mr. Keshav Kataria, Advocate has vehemently argued that in reply to the paragraph No. 2 of the eviction petition tenant has admitted in paragraph No. 1 of the written statement that infact vacant piece of land measuring 4 marlas was taken on rent by late Heera Singh, husband of the tenant 30 years back and thereafter late Heera Singh constructed residential building thereupon. It is further stated in paragraph No. 3 of the written statement that petition does not fulfill the ingredients of Section 13 of the Rent Act. Learned counsel for the petitioner further stated that under Section 13 of the Act eviction petition can be filed only pertaining to the building or rented land. He states that vacant plot given to the tenant for the purpose of residential construction does not fall within the definition of building as defined under Section 2(a) nor it falls within the definition of Rented Land as defined under Section 2(f) of the Act. Learned counsel for the petitioner has placed reliance on the judgment of Single Judge of this Court in the case of Shri Netar Ram vs. Hans Raj and others, reported in 1985(1) Rent Control Reporter 526, Pyara Singh vs. Mahant Gurmukh Das and another, reported in 1964 Punjab Law Reporter page 193 and Vishwa Nath vs. Khalifa C.R. No. 5863 of 2008 3 Giri, reported in 1995(1) RCR page 3. Learned counsel for the petitioner further stated that learned Rent Controller has failed to frame the issue of jurisdiction and has not recorded any finding on the issue as to whether Rent Controller has jurisdiction over the matter or not. Learned counsel for the respondent has vehemently argued that tenant himself has filed petition under Section 12 of the Rent Act prior to the filing of eviction petition, hence, Rent Controller has committed no jurisdictional or legal error by not deciding the issue of jurisdiction. In Pyara Singh's case (supra) learned Single Judge of this Court in paragraph No. 10 has held as under:- “10. In my opinion, the Rent Controller whose jurisdiction is circumscribed by the statute as a special tribunal was enjoined by law to keep himself within the bounds of his jurisdiction. As is obvious, the tenant was a tenant only in regard to the vacant site and the Rent Controller could only pass an eviction order in regard to that site. The fact that the tenant had not specifically raised the plea would not clothe the Rent Controller with jurisdiction to pass any order of eviction in regard to the property which is not let out by the landlord to the tenant, whether actually or constructively. In my opinion, it was the duty and function of the Rent Controller to advert to this fact and not to pass an order of eviction from the building, as if it was automatic, merely on the failure of the tenant to pay or tender the arrears of rent on the first hearing of the application. The learned appellate authority also seems to me to have fallen into the same error, namely, that an order of eviction from the structure which is not the tenanted premises must automatically be passed on C.R. No. 5863 of 2008 4 failure on the part of the tenant to pay or tender the arrears on the first hearing.” In the matter of Shri Netar Ram's case (supra) learned Single Judge of this Court in paragraph No. 4 has held as under:- “4. After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the petitioner. On facts it could not be said with certainly that there was relationship of landlord and tenant between the parties as to invoke the jurisdiction of the Rent Controller under the Act. In any case, the said land bearing Khasra No. 1419/958 could not be held to be rented land” as it was never let out for business or trade. On this score also the jurisdiction of the Rent Controller is barred. The application for ejectment is maintainable only qua the building or with respect to the rented land as defined under the Act. The findings of the Rent Controller with respect to the relationship of landlord and tenant between the parties has been reversed by the appellate authority arbitrarily and whimsically. In any case, there being serious dispute of title between the parties, it is a fit case where the parties would have gone to the Civil Court. As observed earlier the so-called landlords have already filed a civil suit which has been stayed under Section 10 of the Code of Civil Procedure. In this view of the matter, the petition succeeds the order of the appellate authority is set aside and that of the Rent Controller dismissing his ejectment application is restored with no order as to costs.” In Vishwa Nath case (supra), learned Single Judge of this Court in paragraph Nos. 14 and 17 has held as under:- “14. I am unable to find any force in the contention of the learned counsel as the land leased out by respondent Khalifa Giri does not fall under the definition of 'rented C.R. No. 5863 of 2008 5 land' and the point in issue is not res integra. It has been so decided by the Supreme Court as late as in the year 1970 in Bai Chanchal and others vs. Syed Jalauddin and others, A.I.R. 1971 S.C. 1081 : 1970 RCR 915 (SC). 17. In another decision of this Court in Mohinder Kumar vs. Narinder Kumar and others, 1986(2) P.L.R. 43 : 1986(2) RCR 104 (P&H), it has been held that if the vacant land is let out for any other purpose than the business or trade, then the Rent Controller under the Act will have no jurisdiction to pass any eviction order and the civil Court will have jurisdiction to decide the matter.” Undisputedly question of jurisdiction was not dealt with either by Rent Controller or by the Appellate Authority. In view of the judgments relied upon by learned counsel for the petitioner, I find it proper to remand the matter to the learned Rent Controller to frame issue of jurisdiction and to decide it on merits after hearing both the parties. While deciding the issue of jurisdiction, learned Rent Controller shall also consider the effect of filing of the petition by the tenant under Section 12 of the Act prior to the filing of the eviction petition. Orders impugned herein are quashed. Matter is remanded back to the learned Rent Controller for the above purpose. Parties are directed to appear before the learned Rent Controller on 28.9.2010. Learned Rent Controller is requested to decide the case afresh preferably within four months thereafter. (ALOK SINGH) 08.09.2010 JUDGE reena