C.R. No.3539 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.3539 of 2006 Date of Decision: 7.1.2008 Mrs.Preeti .....Petitioner Vs. Manmohan Singh and another ...Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. D.S. Pheruman, Advocate with Mr.P.L. Singla, Advocate for the petitioner. Mr.Amit Jain, Advocate for the respondents. ... RAJIVE BHALLA, J (Oral) The petitioner-tenant, has filed this petition, under Section 15 (5)A of the East Punjab Urban Rent Restriction Act, (hereinafter referred to as `the Act'), impugning the order of ejectement passed by the Rent Controller, Hoshiarpur, as also the order of dismissal of her appeal, passed by the Appellate Authority, Hoshiarpur. The petitioner, admittedly, was inducted as a tenant in the demised premises in 1994 by Sh.Satvir, who filed an ejectement petition dated 4.10.1996, praying for the petitioner's ejectement for non payment of rent. During the pendency of this petition, Satvir passed away on 15.12.1998. The respondents Manmohan Singh and Madan Mohan sons of Mehnga Singh, alleging that they had inherited ownership of the demised premises, filed an application for their being impleaded as legal representatives. The said application was allowed vide order dated C.R. No.3539 of 2006 2 2.12.1999 and the respondents were impleaded as petitioners. The Rent Controller, vide order dated 21.12.1999, held the rate of rent to be Rs.450/- per month and in addition, held that the tenant was required to pay water charges @ Rs.15/- per month and sewerage charges @ Rs.5/- per month. As the tenant had tendered rent upto April 1997 at the determined rate, the petition was dismissed. During the pendency of the above, the respondents, namely; Manmohan Singh and Madan Mohan, filed another petition for ejectement, on 5.2.1999, on the plea of non payment of rent from 1.5.1997. The petitioner, appeared before the trial Court but did not tender any rent. She raised a preliminary objection that the respondents were neither owners nor landlords and,therefore, had no locus standi to institute the petition. The petitioner also denied relationship of landlord and tenant with Sat Vir, the deceased landlord. On the basis of the respective pleadings, the learned Rent Controller framed the following issues :- “1. Whether respondent is in arrears of rent ? OPA 2. Whether the applicant has no locus standi to file the present application ? OPR. 3. Relief.” On issue no.2, the learned Rent Controller, held that the respondents were owners/landlords of the premises in dispute and, therefore, negatived the petitioner's contention that the respondents had no locus standi to maintain the petition for ejectment. On issue no.1, it was held that as the petitioner failed to tender rent at any stage of the proceedings, she was liable to be ejected. Aggrieved by the aforementioned order, the petitioner preferred C.R. No.3539 of 2006 3 an appeal before the Appellate Authority, Hoshiarpur. Vide judgement dated 5.5.2003, the Appellate Authority, set aside the order, passed by the Rent Controller and remitted the matter for a decision afresh, by directing the Rent Controller, to make a provisional assessment, of rent, the interest due thereon and the costs to be paid by the tenant and thereafter, call upon the petitioner to tender rent. The respondents, however, filed C.R. No.5497 of 2003, impugning the correctness of the order. Vide order dated 10.2.2005, the revision was accepted and the order passed by the Appellate Authority, remitting the matter to the Rent Controller was set aside. The Appellate Authority was directed to decide the appeal in accordance with law. After hearing counsel for the parties and perusing the record, the Appellate Authority, Hoshiarpur, dismissed the appeal vide order dated 1.5.2006. Counsel for the petitioner submits that the petitioner's ejectement had been ordered on the sole ground that she failed to tender rent, at any stage of the proceedings. It is submitted that the petitioner raised a bonafide dispute,as to the status of the respondents i.e. their ownership and their locus standi to maintain the petition for ejectment. The bonafides of this plea are established by the fact that the respondents filed Civil Suit No.320 of 1999, against their mother, praying for a declaration, that they were owners of the demised premises. The petitioner, therefore, was of the bonafide belief that she could validly await the outcome of the suit and tender rent thereafter. Thus, after the Rent Controller held that the respondents were owners/landlords he was obliged, as per the provisions of Section 13 of the Act, as interpreted by the Hon'ble Supreme Court in C.R. No.3539 of 2006 4 Rakesh Wadhawan V. Jagdamba Industrial Corporation, 2002(2) PLR 370, to assess the rent, the interest and the costs and thereafter afford an opportunity to the petitioner-tenant, to tender the rent as assessed. The Rent Controller, however, failed to provide an opportunity, to tender rent and instead ordered the petitioner's ejectement. Another contention pressed into service, by counsel for the petitioner is that the order passed by the Appellate Authority reveals an abject failure on the part of the Appellate Authority, to exercise jurisdiction, as per law. The Appellate Authority, after recording that the tenant had led sufficient evidence to prove that the property in dispute did not belong to Satvir, proceeded to hold that the petitioner was inducted as a tenant by Satvir and as the respondents had inherited the property from Satvir, the relationship of landlord and tenant stood established. The Appellate Authority despite the existence of a bonafide dispute between the parties, as to the ownership of the property in dispute, proceeded to hold that Rakesh Wadhawan's case (supra) was not applicable, as the petitioner had denied the relationship of landlord and tenant and had foregone her right to call upon the Rent Controller, to assess the rent and grant an opportunity to her to pay the arrears of rent. It is further submitted that as held in Sham Lal (Dead) by Legal Representatives V. Atma Nand Jain Sabhya (Redg.) 1987(1) PLR 1, the words 'the first hearing of the application' would mean the day on which the Court applies its mind to the facts of the case or decides the issues or evidence is taken and,therefore, the petitioner's ejectement on the ground that she did not tender the rent on the first date of appearance is incorrect. It is further pointed out that on the basis of an interim order, the petitioner had deposited entire arrears of rent and as on C.R. No.3539 of 2006 5 date, no rent is due to the landlords. Counsel for the respondents, on the other hand, submits that the impugned orders do not suffer from any error of jurisdiction or of law, as would warrant interference by this Court. It is submitted that the plea, raised by the petitioner, challenging the locus standi of the respondents, was malafide and a sham. In the rent petition filed by Satvir, on 4.10.1996, the respondents were impleaded as his legal representatives. The petitioner did not raise any objection and was thus, aware of the respondents having inherited the demised premises and their status as landlords. The objections as to the locus standi of the respondents to file the ejectment proceedings was, therefore, a malafide attempt to harass the landlords, evade the duty to pay rent and to deprive them of the rent. It is further submitted that the petitioner's malafides are further established by the fact that the petitioner filed her written statement dated 20.5.1999 on 20.7.1999. The civil suit, which the petitioner alleges is the basis of her plea, challenging the locus standi of the respondents was filed on 23.7.1999. The petitioner's plea is, therefore, hollow and lacks bonafide. It is further submitted that the judgement in Rakesh Wadhawan's case (supra) does not apply to the facts of the present case. A tenant denying the relationship of landlord and tenant asserts a positive right not to tender rent and, therefore, cannot fall back upon the ratio in Rakesh Wadhawan's case (supra). Reliance for the above assertion is placed upon Ramanand Shastri V. Gian Singh, 2003 HRR 771, Yash Pal Singh V. Vijay Kumar, 2004(3) PLR 504, Hukama Devi and others Vs. Bhagwan Dass, 2003(2) PLR 371, Narinder Singh Vs. Sarabjit Singh, 2006(2) HRR 467 and Jagdish Singh Vs. Mohan Lal, 2004(2) RCR 114. C.R. No.3539 of 2006 6 Counsel for the respondents further asserts that in revision, a party cannot be allowed to raise fresh pleas. The petitioner's pleas, based upon the civil suit and the interpretation assigned to the expression first date of hearing were never asserted before the Rent Controller or before the Appellate Authority and should,therefore, not be taken into consideration. I have heard learned counsel for the parties at length, perused the impugned judgements, as also the precedents pressed into service. The primary assertion put forth by counsel for the petitioner is that the petitioner raised a bonafide dispute, with respect to the locus standi of the respondents, their ownership of the demised premises and the relationship of landlord and tenant. Thus, after the learned Rent Controller arrived at a conclusion that the respondents were owners/landlords of the premises in dispute, he was required to make an assessment of the rate of rent, tabulate the arrears of rent, assess the interest thereon and after calculating the costs to be paid by the petitioner, call upon the petitioner, to tender rent, in accordance with the provisions of Section 13 of the Act, as interpreted by the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra). The aforementioned contention, in my considered opinion is without merit. Where a tenant, proceeds to dispute the locus standi or the ownership of the landlord and thereupon denies the relationship of landlord and tenant, such a tenant in essence, asserts a positive plea of refusal to tender rent. Whether such a tenant would be entitled to the protection of Section 13 of the Act, as interpreted by the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra) has been answered in a host of judgements by this Court, namely; Ramanand Shastri V. Gian Singh C.R. No.3539 of 2006 7 (supra). A relevant extract from the aforementioned judgement would be appropriate : “I have thoughtfully considered the submissions made by the learned counsel for the tenant-petitioner and am of the view that the same are devoid of merit. The first submission that the tenant-petitioner was entitled to an order of assessment by the Rent Controller in terms of the law laid down by the Supreme Court in the case of Rakesh Wahdawan (supra) would not require any detailed consideration because in cases where the tenant disputes the relationship of landlord and tenant it is not expected of the Rent Controller to pass an assessment order of rent directing the tenant to pay that rent. In such cases, exercise to be taken by the Rent Controller would be futile and would rather go contrary to the stand of the parties. After all framing of assessment order is not a mere ritual by the Rent Controller that in every case the Rent Controller must pass such an order. Moreover, even if the Rent Controller passes such an order and the tenant maintains his stand of denying the relationship then he cannot be asked to pay the rent. It would also be unjust that the tenant would first get the finding of subsisting relationship and then deposit the rent. Such a course would also be unfair and unjust to the landlord-respondent. Therefore, I have no hesitation in rejecting the first argument raised by the learned counsel.” Another judgement, taking a similar view is Yash Pal Singh V. Vijay Kumar (supra), para 7 whereof reads as follows : C.R. No.3539 of 2006 8 “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 of 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-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 the learned counsel and reiterate my view taken in the cases of Ramanand Shastri (supra) and Hukama Devi (supra).” A similar view was taken in Hukama Devi and others Narinder Singh Vs. Sarabjit Singh and Jagdish Singh Vs. Mohan Lal's cases (supra). The aforementioned precedents, make it abundantly clear that where the plea denying the relationship of landlord and tenant, or laying challenge to the locus standi of the landlord, to file a petition for ejectment is malafide and asserted with a motive to prolong proceedings, evade responsibility for payment of rent or to harass the landlord, the ratio in Rakesh Wadhawan's case (supra) would not apply. I find no reasons to differ with the aforementioned judgements, as they apply to the facts of present case with all their vigor. As held by the first appellate Court, the petitioner's assertion, challenging the locus standi of the landlord and denying relationship of landlord and tenant was malafide. The petitioner C.R. No.3539 of 2006 9 not only denied relationship of landlord and tenant with the respondents, but also denied any connection with Satvir, the original landlord, who admittedly, had inducted her into the premises as a tenant. She also went on to assert that the property was owned by the Wakf Board. Another aspect of the matter that has a significant bearing, on the conclusion recorded herein before, is that Satvir filed an ejectment petition in the year 1996 but during its pendency, Satvir passed away on 15.12.1998. The respondents claiming to have inherited the demised premises from Satvir, filed an application for their being impleaded as legal representations/landlords in place of Satvir. This application was allowed and the respondents were impleaded as owners/landlords, in place of Satvir, in her presence. The petitioner did not impugn the correctness of this order,whether by way of an appeal or a revision. It is, thus, apparent that the plea raised by the petitioner, impugning the locus standi of the respondents and denying any relationship of landlord and tenant, was a malafide attempt on her part, to avoid payment of rent and a positive asserting of a right not to tender rent. Another significant fact that would merit mention is reliance by the petitioner, upon the civil suit filed by the respondents for declaration of their ownership, with respect to the demised premises. The civil suit was filed on 23.7.1999, whereas the written statement in the ejectement petition dated 20.5.1999 was filed on 20.7.1999. The written statement, therefore, does not refer to or rely upon the civil suit. Therefore, the argument that the petitioner raised a bonafide dispute based on the pendency of the civil suit was clearly an after thought. As regards the assertions, with respect to the first date of hearing, suffice it to say that the petitioner never offered to tender rent at C.R. No.3539 of 2006 10 any stage of the proceedings before the Rent Controller. In fact, she continued to maintain even before the Appellate Authority that the respondents were not her landlords. Thus, the above assertion is without merit. In view of what has been stated herein above, as the impugned orders do not suffer from any error of jurisdiction or of law, the present petition is dismissed, with no order as to costs. However, with the consent of counsel for the respondents, the petitioner is granted six months' time to vacate the premises, subject, however, to the condition that she would continue to pay/deposit the rent by the 7th of each month and files an undertaking before the Rent Controller, to deliver possession within six months' from today. 7.1.2008 ( RAJIVE BHALLA ) GS JUDGE