CR No.3142 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh. *** CR No.3142 of 2010 (O&M) Decided on February 11,2011. Ishwar Dass --Petitioner vs. Sanjiv Kumar --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Ms.Monisha Lamba,Advocate,for the petitioner Mr.Kunal Dawar,Advocate, for the respondent. Rakesh Kumar Jain, J, (Oral) This revision petition is directed against the order dated 18.3.2010 passed by the learned Appellate Authority, Faridabad by which order of eviction dated 22.1.2010 passed by the Rent Controller. has been set aside. Brief facts of the case are that the petitioner/landlord filed an eviction petition against the respondent/tenant, inter-alia, on the ground of non-payment of rent. The eviction petition was contested by the respondent/tenant by filing written statement in which it was alleged that the rent of the demised premises is `2000/- per month and the petitioner is not the landlord as the demised premises is owned by CR No.3142 of 2010 (O&M) 2 his wife. Since the petitioner had claimed the rent @ `7000/- per month and the respondent had alleged that the rent was `2000/- per month, the Rent Controller vide his order dated 19.11.2009 called for the report of the Tehsildar of the area concerned with regard to the rate of rent in the surrounding area having two rooms on the ground floor, an accommodation of a similar nature and condition. The Tehsildar vide his report dated 29.11.2009, submitted that similar accommodation would fetch rent of `3000/- per month. The Rent Controller neither accepted the rent claimed by the landlord nor by the tenant and even assessed by the Tehsildar, rather the rent was assessed by the Rent Controller himself @ `3800/- per month and on the basis thereof, the amount payable was assessed at `1,08,691/- which was ordered to be paid on or before 22.12.2009. The order passed by the Rent Controller on 11.12.2009 reads thus:- “Present: Sh.Deepak Gera Advocate, for the petitioner Sh. Rajesh Khanna, Advocate, for the respondent. Report of Tehsildar regarding rent of the premises in question perused. Arguments heard. In the course of arguments ld.Counsel for the respondent has stated that the respondent is not the tenant of the petitioner and since the tenancy itself is disputed, therefore, the court of Rent Controller is not supposed to assess the provisional rent of the premises. On the other hand ld. Counsel for the petitioner has stated that so far as the tenancy is concerned, it is admitted by the respondent in his reply but therein it is stated that the respondent is not tenant of the petitioner but is tenant of the wife of petitioner. Based upon this line of argument ld. Counsel for the petitioner has stated that rent Controller is within its power to assess the provisional rate of rent once tenancy is admitted, no matter the landlord may be the petitioner or wife of the CR No.3142 of 2010 (O&M) 3 petitioner. A perusal of the reply filed to the petition on behalf of the respondent clearly shows that premises in question were let out to the respondent w.e.f July 2007 and is used by the respondent for the purposes of godown. Further it is stated that respondent has been paying rent of the said premises regularly to the wife of the petitioner namely Smt. Shakuntla. The premises were let out to the respondent by the wife of petitioner only. In view of the above averments made in the reply I am satisfied that the tenancy of premises in question is admitted by the respondent and therefore, provisional rent assessed by the Rent Controller. No rent agreement has been placed on record by either of the parties. Petitioner has contended that premises were let out on monthly rent of `7000/- with provision of 10% increase every year. On the other hand, respondent has stated in the reply that premises in question were taken on monthly rent of `2000/- and are being used for the purpose of godown. In order to have clear grasp of the matter report of the Area Tehsildar was called for by the Court. In his report, Tehsildar has stated that rent of two rooms at the ground floor of the premises is around `3000/- per month. Though, this report is disputed by the ld. Counsel for the petitioner. In support of its position, ld. Counsel for the petitioner has placed on record at this stage certain affidavits of the residents of that locality stating that rent of two rooms in the locality is around `7000/- or more. In the circumstances of the case and from the material placed on record, I am of the opinion that since the rented premises are being used for commercial purpose i.e godown the rent of the said premises is assessed to be `3800/- per month. The respondent is allegedly under arrears of rent since October 2007 i.e for a period of 26 months. Therefore, the rent for the period of 26 months works out to be `98,800/- and the amount of interest works to be `8891/- approximately. Upon above stated amount cost of `1000/- is to be paid by the respondent and in this matter the total provisional rent is assessed as `98,800/- + `8891/- + `1000/- i.e, `1,08,691/-. The above amount to be deposited by the respondent on or before 22.12.09. Now to come upon 22.12.09 for tendering of the provisional rent assessed above”. Aggrieved against the aforesaid order, the tenant filed a revision petition bearing CR No. 7586 of 2009 in this Court in which he had raised two grievances, firstly, that there is no relationship of CR No.3142 of 2010 (O&M) 4 landlord and tenant between the parties as it was alleged that he is a tenant of the wife of the present petitioner who is the owner of the demised premises and secondly, the rate of rent was ` 2000/- per month which has been erroneously assessed at the rate of `3800/- per month. In support of his first contention, the tenant/respondent had relied upon three decisions of this Court in the cases of Yashpal Singla Vs. Vijay Kumar,2004 (3), P.L.R. 504, Narinder Singh Vs. Sarbjit Singh 2007 (2) P.L.R. 405 and Mrs. Preeti Vs. Manmohan Singh and another 2008 (3) P.L.R. 591. This Court considered both the arguments raised by learned counsel for the respondent/tenant and rejected them on the ground firstly, that it is a matter of evidence as to whether the landlord of the petitioner is the respondent or his wife because going into the fiduciary relationship between the parties, the petitioner cannot question the locus standi of the landlord at this stage, especially when it is not a case where the respondent wife has made any separate claim against the tenant. It was also observed that the petitioner as a tenant is liable to pay the rent and if under the orders of the Rent Controller, he tenders the arrears of rent to the respondent, it would undoubtedly absolve him of any liability to pay the same to the respondent's wife as well. Still further, it was observed that if so advised, he may tender the arrears of rent by way of demand draft in the name of the wife of the respondent. Insofar as the rate of rent is concerned, it was held that if the Rent Controller comes to the conclusion that the monthly CR No.3142 of 2010 (O&M) 5 rent is `2000/- only, excess payment made by the petitioner/tenant shall be refunded to him or can be adjusted against the future rent. With these observations, the tenant was permitted to tender the arrears of rent by 31.12.2009. As observed earlier, that vide order dated 11.12.2009, the petitioner was directed to tender the provisional rent on or before 22.12.2009, but by virtue of the order of this Court of even date, the time was extended and he was allowed to deposit the rent by 31.12.2009. Therefore, the Rent Controller passed the following order on 22.12.2009 :- “Provisional rent assessed vide the order dated 11.12.2009 not tendered by the respondent. The statement has been made by the respondent in the Court that the time fixed for deposit of rent has been extended by Hon'ble Punjab and Haryana High Court till 31.12.2009 as per the information received by the respondent. In view of the statement made by the respondent, case is adjourned to 4.1.2010 for tendering of assessed rent by the respondent”. On 4.1.2010, the tenant was required to pay the provisional rent assessed vide order dated 11.12.2009, but despite that, he did not appear. Thereafter, an application was filed by the landlord to strike off the defence of the respondent and pass an eviction order against him. But on application filed by the landlord, notice was issued by the Rent Controller for 18.1.2010. Ultimately, the tenant did not tender the provisional rent and resultantly, eviction order was passed on 22.1.2010 against which the tenant had filed statutory appeal before the learned Appellate Authority, which has been allowed by the impugned CR No.3142 of 2010 (O&M) 6 order. Learned counsel for the petitioner has argued that the learned Appellate Authority has committed a patent error of law in not appreciating the judgment of the Supreme Court rendered in the case of Rakesh Wadhawan Vs. Jagdamba Industrial Corporation AIR 2002 SC 2004, in which it has been observed that the tenant shall be liable for eviction if he chooses not to tender the provisional rent on the fixed date. Learned counsel has also relied upon a Division Bench judgment of this Court in the case of Ranjan alias Raj Kumar Vs. Rakesh Kumar passed in Civil Revision No.3577 of 2006 decided on 07.1.2010 in support of her contention. On the contrary, learned counsel for the respondent has submitted that once relationship of landlord and tenant is denied, the tenant is not obliged to pay the provisional rent. In this regard, learned counsel has relied upon two decisions of this Court in the cases of Yashpal Singla Vs. Vijay Kumar 2004 (3) P.L.R.504 and Hukma Devi Vs. Bhagwan Dass 2003 (2) P.L.R.371. I have heard the learned counsel for the parties and have perused the available record with their assistance. The question involved in this case is very short and simple as to “whether the tenant is liable for eviction in case of not tendering the rent on the date fixed by the Court”. In this case, the learned Rent Controller did not accept the rate of rent provided by both the parties to the lis and rather made his own inquiry from an independent authority and came to the CR No.3142 of 2010 (O&M) 7 conclusion that the rate of rent of the demised premises would be `3800/- per month and on that basis, he assessed the arrears of rent with interest and costs and asked the tenant to tender the arrears of rent of `108,691/- on or before 22.12.2009. The tenant took the same plea which was raised initially and was rejected. The rate of rent was also accepted by this Court and it was ordered that the tenant would now tender the rent on 31.12.2009. This Court extended the time and asked the tenant to tender the rent on 4.1.2010 but the tenant chose not to tender the rent on that date and had rather did not appear at all. As a matter of fact, the tenant did not deposit the rent so far. The question whether the tenant is liable to be evicted on the ground of his not tendering the rent on the first date of hearing, is no more res-integra in view of the judgment of the Supreme Court in Rakesh Wadhawan (Supra) and of this Court in Ranjan alias Raj Kumar's Cases (Supra) in which the Division Bench of this Court observed as under:- “A reading of conclusions drawn in para No.30 of the judgment in Rakesh Wadhawan's Case (Supra) leaves no doubt that if after determination of the provisional rent, a tenant fails to deposit the same, nothing remains to be done and an order of ejectment of a tenant has to be passed. The language of conclusion No.4 in the said para is very clear and needs no further interpretation”. Insofar as the judgments which have been relied upon by the tenant is concerned, those have already been considered by this Court in its judgment passed in Civil Revision No.7586 of 2009 and that order has become final between the parties having not been CR No.3142 of 2010 (O&M) 8 challenged by the tenant before any superior Court. Therefore, he cannot be permitted to urge the same thing again before this Court. To my mind, the learned Appellate Authority has passed a patently illegal order by observing that in order to tender the provisional rent, the party has to first lead evidence. In view of the above discussion, I find force in this revision petition and as such the same is hereby allowed and compensatory costs of `20000/-is also awarded which shall be paid to the petitioner by the respondent. February 11,2011 (Rakesh Kumar Jain) RR Judge