Civil Revision No. 469 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 469 of 2007 Date of Decision: 27.11.2008 Sham Sunder Chauhan …Petitioner Versus Satyapal ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the petitioner. Mr. C.B.Goel, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) A controversy in the present petition revolves around rent note Ex.PA. Admittedly, rent note Ex.PA was executed for a period of three years and is a registered document. As per the rent note tenancy was created at the rate of Rs.1,200/- per month. Rent note contained a condition that after expiry of three years if no fresh rent note is executed the rent between the parties shall stand determined as Rs.2,400/- per month. Learned Rent Controller, Hisar, on a petition filed by landlord Satyapal against the petitioner-tenant Sham Sunder Chaudhary, determined the rent to be Rs.2,400/- per month. For arriving at this, after the conclusion of the pleadings, following issues were formulated:- Civil Revision No. 469 of 2007 2 1. What is the rate of rent of the demised premises? OPP 2. Whether the rent tender by respondent on 31.3.99 is short invalid, if so its effect? OPP 3. Whether the petitioner has not come to the Court with clean hands, if so to what effect? OPR 4. Whether the petitioner has not produced any site plan of the property in question? OPR 5. Whether the petition is bad for non joinder of necessary parties? OPR 6. Relief. Learned Rent Controller along with the pleadings considered the evidence of Satyapal, landlord, who appeared as PW.2 along with testimony of Radhey Sham, Deed Writer, PW.2, who proved rent note Ex.PA. Tenant himself appeared as RW.4 and examined Bhagwan Dass, Deed Writer, as RW.1, Ramesh Kumar as RW.2 and Ishwar Singh as RW.3. The case of the tenant was that subsequent to the earlier rent note, a rent note was executed on 6.1.1998 Mark 'A'. Learned Rent Controller held that the tenant has failed to prove subsequent rent note dated 6.1.1998, therefore, it came to conclusion that as agreed between the parties, rent of the property will be Rs.2,400/- per month w.e.f. Civil Revision No. 469 of 2007 3 21.7.1996. Therefore, it was assessed that from 21.7.1995 to 21.7.1996, rent would be Rs. 1,200/- and thereafter, Rs.2,400/- per month. After assessment and calculation of the rent, learned Rent Controller afforded two months time to the tenant to deposit the rent calculated by learned Rent Controller. Admittedly, in pursuance of the order passed by learned Rent Controller on 25.11.2005, no rent was paid. At this stage, Mr. C.B.Goel, Advocate, appearing for the respondent, has stated that when the matter was pending before learned Appellate Authority then after the dismissal of the appeal, an application was filed for seeking extension of time for deposit of rent and that application was also dismissed. Mr. Arun Jain, Senior Advocate, with able assistance of Mr. Amit Jain, Advocate, appearing on behalf of the petitioner, has raised three submissions before me. It has been stated that since in the rent note at the time of inception of tenancy rent was Rs.1,200/- by invoking the condition that after expiry of three years if a fresh rent note is not executed rent will be Rs.2,400/- per month, same is a penal clause and the same is not permissible under law and that part of findings of learned Rent Controller ought to be set aside. Second submission made is that after expiry of rent note, petitioner became a statutory tenant and is covered by the provisions of the Act and thereafter, he cannot be held liable to pay Rs.2,400/- as rent. Thirdly, it has been submitted that during the pendency of the present petition, landlord had filed another petition for eviction of the tenant and the same was decided vide Ex.RW5/2. The copy of the order has been also attached with the petition as Ex.P1. It has been stated that when the rent was paid and Civil Revision No. 469 of 2007 4 issues were framed, the landlord despite effective opportunities given had not examined any witness, therefore, vide Ex.RW5/2 rent conclusively stand determined by the Court as Rs.1,200/-. Mr. C.B.Goel, Advocate, appearing for the respondent, to controvert this submission, has stated that rent note is to be considered in its spirit and tenor. It was agreed between the parties that in case no fresh rent note is executed then the tenant shall be paying rent at the rate of Rs.2,400/- per month. Therefore, it is stated that it was agreed between the parties that rent will be Rs.2,400/- per month. Mr. Goel has stated that since rent note contains specific terms & conditions, parties are bound by the same and, therefore, rightly learned Rent Controller has found the rent to be Rs.2,400/-. He has further stated that conduct of the tenant in not paying the rent despite various opportunities given by the Courts is sufficient to infer that the tenant continues to enjoy the fruits of the property without paying the rent. It has been further stated that no reliance can be placed upon Ex.RW5/2 because the petition was not contested on merits as no evidence was led by the parties and, therefore, there was no adjudication on merits regarding the rate of rent. It was further stated that Ex.RW5/2 will not operate as res judicata as the petition was filed during the pendency of present petition where the parties had started leading the evidence. At this stage, parties are in agreement that six months time can be granted to the tenant to vacate the premises. Mr. Goel states that since his intention is to have possession of the premises from tenant, who is not paying the rent since 1996 and has used the property for more than 12 years, he will have no objection in case six months Civil Revision No. 469 of 2007 5 time is granted so that peaceful possession of the property is restored to the landlord. He has stated that for this purpose tenant be bound down to furnish an undertaking before learned Rent Controller that he shall hand over the peaceful vacant possession to the landlord/respondent. It has been further stated by Mr. Goel that in case tenant undertakes that peaceful possession will be handed over on or before 31.5.2009, he will waive off the entire arrears of rent. Ordered accordingly. In case undertaking is not filed on or before 31.12.2008, then the landlord will be well within his rights to proceed in accordance with law to execute the mandate of the orders of two Courts below. Needless to say, then, the landlord shall be entitled to recover the arrears of rent. (Kanwaljit Singh Ahluwalia) Judge November 27, 2008 “DK”