CR No. 5474 of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CR No. 5474 of 2001 Date of decision January 20 , 2009 Ajay Kashyap .......Petitioner Versus Smt. Mohini Nijhawan ........Respondent CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Madan Lal, Advocate for Mr. Raman Mahajan, Advocate for the petitioner. Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate and Mr. Chetan Salathia, Advocate for the respondent. **** K. Kannan, J(oral) 1. The revision petitioner challenges the order of eviction passed by the Appellate Authority accepting the contention of the landlord on two counts that there was a valid lease executed by the tenant in favour of the landlord undertaking to pay rent at the rate of Rs.2400/- per month and (ii) there had been a default on the part of the tenant to pay the rent as undertaken by him on the denial of the relationship between the landlord and tenant setting up title in favour of third party i.e. Subhash Sethi. 2. The learned Senior counsel arguing on behalf of the revision petitioner begins his argument with a concession that the tenant will not any longer press the dispute regarding the entitlement of the CR No. 5474 of 2001 2 landlord to collect rent and that he would accept him to be his landlord and not pressforth his plea that Subhash Sethi was the landlord. The learned Sr. counsel urges two contentions i) if the tenancy for Rs. 2400/- were to be accepted the Rent Controller ought to have before passing an order for eviction for non-payment of rent followed the procedure laid down by the Supreme Court in Rakesh Wadhawan 2002 (1) RCR 514. A ccording to him the Rent Controller ought to have afforded an opportunity to pay the rent calculated and without such an opportunity eviction could not have been issued. The counsel for the petitioner contended that he was ready to pay the rent and continue the relationship with the landlord. The second contention of the learned Senior Counsel for the revision petitioner is that a clause for enhancement of rent at the rate of 10% per year was against statute. The parties cannot contract themselves out of law and stipulation for enhancement in the rent deed was invalid. The learned Senior counsel referred me to the provisions of Section 6 and 7 of the East Punjab Rent Restriction Act, 1949 which according to him contained a legislative interdict against enhancement of rent against voluntary enhancement of rent. 3. To take up the latter point first, Section 6 only lays down that the landlord cannot claim anything in excess of “fair rent” determined under the Act as rent i.e. determined by reference to the procedure under Section 4 of the Act. So long as fair rent is not fixed by reference to the procedure, the operation of Section 6 of the Act is not attracted. Similarly reference to Section 7 of the Act is also inappropriate, for it only bars a landlord to claim any fine or price or any other like sum in addition to the rent for consideration for the grant, renewal or continuation of lease. Provisions for enhancement of rent does not fall within the CR No. 5474 of 2001 3 boundaries of Section 7. 4. Learned counsel also refers to the decision of the Supreme Court in Bhoja Ram Vs. Rameshwar Agarwala and others JT 1993 (2) SC 375. This decision is also inapplicable because the Supreme Court was dealing with the express provisions of “Bihar Lease Rent and Eviction Control Act” which contained through Section 4 a clear bar for enhancement of rent in the following words:- “4. Enhancement of rent buildings:- Notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in the rent which is payable for the time being in respect of any building except in accordance with the provisions of this Act.” A similar provision such as Section 4 of the Bihar Act is not available under the East Punjab Urban Rent Restriction Act, 1949 therefore the provisions for enhancement of rent cannot be said to be barred under any of the provisions of the East Punjab Rent Restriction Act. 5. Learned counsel for the respondent refers to a decision in Hardev Kaur deceased through legal representative Vs. Ghazal, Restaurant Chadigarh 1992 (2) PLR 660 where a Division Bench of this Court stated that a lease deed stipulated that the tenant would pay 10% increase on the expiry of three years was valid and that at the same time adopted reasoning that if, however, a fair rent of the building has been fixed by the Rent Controller, then landlord cannot claim increase in rent. This proposition finds affirmation in another ruling of this Court in Ashok Kumar Vs. Rakesh Garg C.R. No. 4202 of 2003 decided on 23.1.2006. CR No. 5474 of 2001 4 6. The residual point for consideration is the procedural requirement of Court to afford an opportunity to a tenant to pay rent before order of eviction on the ground of non-payment of rent. It has to be borne in mind that this was an instance of a case of a tenant who, at all times before the Rent Controller and the Appellate Authority denied entitlement of the landlord, the claim to such status and he pleaded jus tertii. A tenant would be barred by the provisions of Act under Section 116 of the Evidence Act from denying the title of the landlord. The preponderance of authorities allowing a tenant to plead paramount title in a third party would be in cases when a tenant is dispossessed at the instance of a holder of title paramount and tenant subsequently attorns to the paramount title holder. In no other occasion would it be possible for a tenant to deny the jural relationship with his landlord. The legal consequence of the denial forfeiting a tenancy is also available under Section 111 of the Transfer and Property Act but the said Act contains a distinct procedure for a landlord to act on the forfeiture by having to issue a notice before taking an action for possession. 7. The Rent Control legislation stipulates a procedure which is distinct and the authorities that have dealt with the consequences of denial of title have a direct bearing to a claim by the tenant that he shall be given an opportunity to make the payment before eviction could be ordered. This issue is also no longer res integra. Learned Sr. counsel for the respondent cites three decisions of this Court that squarely cover the issue: The decisions in Jagdamba Tea Factory, Amirtsar Vs. Parshotam 2008 (1) RCR 507, Preeti Vs. Manmohan Singh and another 2008 (1) RCR 307 and 2004 (3) PLR 504 expound the principle that where a tenant CR No. 5474 of 2001 5 denied the relationship of landlord and tenant and was not depositing the rent but the landlord was able to prove relationship of landlord and tenant during the trial, the tenant was liable for eviction on the ground of non- payment. He was not required to be given an opportunity to pay rent after relationship of landlord and tenant was proved. While so laying down the law, they have also specifically ruled that the procedure laid down in Rakesh Wadhawan's case (supra) did not apply. 8. Here is a case where the tenant who set up title in a third party and denied tenancy and who also contended that he was paying only Rs. 1500/- was confronted by evidence that yet another tenant who was prior to his occupation was paying Rs.1900/- p.m. The landlord wanted to show a course of normal conduct that a landlord would not obtain eviction from a tenant and hand-over to another tenant for a lesser rent. To me, the contention of the tenant that he was to pay only Rs. 1500/- was patently wrong, absurd and untrue. On due consideration of all relevant materials the Appellate Authority had clearly found that the plea of the tenant denying the rent deed and setting up title in third party was not bona fide. 9. For all the discussion above, the revision petition is wholly without merit and the same is dismissed with costs assessed at Rs.5,000/-. (K. KANNAN) JUDGE January 20 , 2009 archana CR No. 5474 of 2001 6