Civil Revision No.1217 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1217 of 2010(O & M) Date of Decision:29.08.2011 Dev Parkash ....petitioner Versus Sarbjit Kaur .....respondent Civil Revision No.4660 of 2010(O & M) Sarabjit Kaur ....petitioner Versus Dev Parkash .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Anil Chawla, Advocate for the petitioner Mr.B.R.Mahajan, Advocate for the respondent *** RAKESH KUMAR GARG, J.: This judgement shall dispose of two civil revisions i.e.Civil Revision No.1217 of 2010 and Civil Revision No.4660 of 2010, which have arisen out of one common order dated 13.05.2006 passed by the Rent Controller, Amritsar and the judgment dated 30.09.2009 passed by Appellate Authority, Amritsar. Briefly stated the facts of the case are that one Ajit Singh Civil Revision No.1217 of 2010(O & M) 2 filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, against one Kundan Lal(predecessor-in-interest of the petitioner)on the averments that he is a tenant in the shop in dispute @ ` 100/- per month w.e.f.01.09.1986 and a rent note was also executed by the tenant in favour of original landlord/owner in which it was stipulated that the rent would be enhanced @ 25% every year. Ajit Singh purchased the demised shop vide registered sale deed dated 21.02.1990 from its original owner. This fact was brought to the notice of the tenant but he did not make the payment of rent despite demands. Even a registered notice dated 08.10.1994 was served upon him. Thus, the applicant, Ajit Singh claimed that relationship of landlord and tenant came into existence between the parties after the execution of the sale deed dated 21.02.1990, in his favour. The petitioner was liable to be ejected from the demised premises on the ground that he has not paid nor tendered rent w.e.f.01.11.1986 till August 1994 amounting to ` 23,599/- and further that he required the demised premises for his personal use and occupation. The ejectment application was contested by the tenant. In the written statement filed on behalf of Kundan Lal,tenant, it was claimed that there was no relationship of landlord and tenant between the parties as Ajit Singh, applicant, was not owner of the shop in dispute. It was further denied that he was a tenant in the demised shop @ ` 100/- per month. It was asserted that he was a tenant in the shop in dispute @ ` 35/-per month. He also denied execution of the rent note dated 25.08.1986. It was further denied that Ajit Singh was entitled to recover the rent from him. Receipt of notice dated 08.10.1994 was also denied. It was further denied that the said Ajit Singh required the demised shop for his own use and occupation. Other averments made in the ejectment application were denied and prayer for dismissal of the ejectment application was made. In the replication, the landlord reiterated the averments Civil Revision No.1217 of 2010(O & M) 3 made in the ejectment application and controverted those made in the ejectment application. From the pleading of the parties, the following issues were framed: 1. Whether the applicant requires the demised premises for personal need, use and occupation of his family members?OPA 2. Whether the tender is legal and valid?OPR 3. Whether there exists relationship of landlord and tenant between the parties?OPA 4. Relief. It is relevant to note, at this stage, that initially the rent application was filed by Ajit Singh son of Banta Singh, but during the pendency of the said rent application he sold the property in dispute in favour of respondent Sarabjit Kaur and thereafter she was ordered to be substituted in place of Ajit Singh vide order dated 03.01.1998 passed by the Rent Controller. After going through the evidence on record and hearing arguments of the learned counsel for the parties, the Rent Controller decided issue No.1 and 2 against the respondent -landlord, while issue No.3 was decided against the petitioner-tenant. Resultantly, the ejectment application was dismissed. Feeling aggrieved from the aforesaid order, the respondent- landlord filed an appeal. It may also be mentioned that during the pendency, tenant-Kundan Lal died and petitioner Dev Parkash came on record as his LR. While deciding the aforesaid appeal, the Appellate Authority upheld the findings of the Rent Controller on issue No.3 holding that there exists relationship of landlord and tenant between the parties. The Appellate Authority further held that execution of the rent note Civil Revision No.1217 of 2010(O & M) 4 Ex.AW3/1 stood proved on record and as per the terms and conditions incorporated in the rent deed, the rate of rent was ` 100/- per month and there was enhancement clause which provided that the rent shall be enhanced by 25% every year. The Appellate Authority also found that the petitioner-tenant had tendered rent under protest @ ` 35/-per year for the period from 21.02.1990 to 20.12.1994 and thus Sarabjit Kaur, respondent who was substituted in place of original landlord Ajit singh was competent to continue with the ejectment proceedings on his behalf and the petitioner was in arrears of rent and was liable to be ejected as rent tendered by him was short and invalid. The Appellate Authority held that the respondent was required to tender the rent in following terms: From 21.02.1990 to 30.08.1990 @ Rs. 175/- PM From 01.09.1990 to 30.08.1991 @ Rs. 200/- PM From 01.09.1991 to 30.08.1992 @ Rs. 225/- PM From 01.09.1992 to 30.08.1993 @ Rs. 250/- PM From 01.09.1993 to 30.08.1994 @ Rs. 275/- PM From 01.09.1994 to 31.12.1994 @ Rs. 300/- PM along with usual interest at the rate of 6% per annum plus costs assessed by the Rent Controller amounting to Rs. 14,054/-. After holding the same, the Appellate Authority allowed an opportunity to the petitioner-tenant to make good the shortage in the tender and directed him to deposit the balance amount of ` 11,574/- within a period of two months from the date of the order, failing which the petitioner was liable to be ejected on the ground of non-payment of rent. While disposing of the appeal, the Appellate Authority affirmed the findings of the Rent Controller on issue No.1 holding that the ground of personal necessity was not available to Sarabjit Kaur, respondent. At this stage, it is relevant to mention that on 30.11.2009 Civil Revision No.1217 of 2010(O & M) 5 petitioner-tenant has deposited a sum of ` 11,574/- in pursuance of the order dated 30.09.2009. However, this fact is not very material for deciding the point in issue. Aggrieved from the aforesaid judgement of the Appellate Authority, petitioner-tenant as well as respondent-landlord have preferred the instant revision petitions. In Civil Revision No.1217 of 2010, the tenant- petitioner has challenged the findings of the Appellate Authority on the question of rate of rent, whereas in Civil Revision No.4660 of 2010, the respondent-landlord has challenged the order of the Appellate Authority to the extent whereby tenant has been granted two months' time to make good of shortage in the tender. Learned counsel appearing on behalf of the petitioner has vehemently argued that there is no evidence on record to hold that the rate of rent was not ` 35/- but was ` 100/- per month with increase of 25% every year as claimed by the respondent-landlord. Counsel for the petitioner has elaborated his argument further by stating that the alleged rent note Ex.AW3/1 has not been proved in accordance with law as the same does not contain the signatures of the petitioner and the respondent- landlord has failed to place on record any evidence to prove the execution of the said document and in the absence of any evidence the said document has to be held to be fabricated. On the other hand, according to the learned counsel appearing on behalf of the respondent-landlord, the aforesaid opportunity has been granted to the tenant illegally as he had denied the relationship of landlord and tenant between the parties and was not entitled to an opportunity to make up the deficiency in the tender, in view of the judgment of the Hon'ble Supreme Court in the case of Rakesh Wadhawan vs.Jagdamaba Industries Corporation, 2002(1) RCR(Rent) 514(SC). I have heard learned counsel for the parties and perused the Civil Revision No.1217 of 2010(O & M) 6 impugned judgement. It is useful to refer to the relevant part of the judgement of the Appellate Authority, which reads thus: Now the question arises as to what is the rate of rent. The applicant has claimed that the rate of rent settled was at ` 100/- per month. With this stipulation, 25% increase every year as per the terms and conditions is contained in the rent agreement Ex.AW3/1 dated 25.08.1986. On the contrary, the stand taken by the respondent in the written statement is that the rate of rent was ` 35/- per month from the very beginning. The respondent has also denied having executed the rent note Ex.AW3/1. In order to prove the execution of the rent note Ex.AW/1 the applicant has examined Suresh Kumar, Deed Writer who has deposed that he scribed the rent deed dated 25.08.1986 at the instance of Kundan Lal, who signed the same after admitting it to be correct in the presence of Om Parkash Khanna and Tejinder Khanna, who attested the same and he entered in his register at Sr.No.299 regarding the execution of the license deed. AW4 Balwinder Singh has identified the signatures of Om Parkash on the rent note Ex.AW3/1. According to this witness, since he has been working with Om Parkash Khanna, he has been seeing him reading and writing and he could identify the signature of Om Parkash on the license deed Ex.AW3/1. This part of the statement of AW4 Balwinder Singh has not been Civil Revision No.1217 of 2010(O & M) 7 controverted in the cross-examination. There is not even a denied suggestion that Balwinder Singh was not conversant with the handwriting and signature of Om Parkash Khanna or that the deed Ex.AW3/1 does not bear the signatures of Om Parkash Khanna. It has also not been disputed that Om Parkash Khanna died about five years ago. In these circumstances, with the help of testimony of AW3 Suresh Kumar Deed Writer and AW4 Balwinder Singh, the execution of the rent note Ex.AW3/1 stands proved on record. Moreover, respondent Kundan Lal did not enter into the witness box to deny the execution of the license deed nor he entered into the witness box to claim that this deed does not bear his signature. Kundan Lal remained alive till 24.09.2006. Thus he could appear before the Rent Controller as a witness and since he did not dare to appear as a witness to deny the execution of this document, an adverse inference has to be drawn against him. Apart from this, it is noteworthy that Kundan Lal never challenged the legality of the licence deed Ex.AW3/1 before any forum nor he lodged any complaint with any authority that a forged and fabricated licence deed has been prepared on his behalf. In these circumstances, it has to be held that the licence deed Ex.AW3/1 was executed by none else than Kundan Lal, himself. As per the terms and conditions incorporated in the license deed Ex.AW3/1, the rate of rent was ` 100/- per month and there is Civil Revision No.1217 of 2010(O & M) 8 enhancement clause which provided that the license fee would be enhanced by 25% every year. In case titled as Smt. Hardev Kaur and others Vs M/s Ghazal Restaurant, Chandigarh and others (supra) it has been held by a division Bench of our own Hon'ble High Court that an agreement providing for such increase is legal, valid and enforceable. In these circumstances, it can be safely held that the rent was liable to increase by ` 25/- every year. By way of the present petition, the original applicant Ajit Singh claimed rent with effect from 01.11.1986. The respondent tendered rent under protest at the rate of ` 35/- per month for the period from 21.02.1990 to 20.12.1994 amounting to ` 2,030/- along with interest of ` 300/- and costs of ` 150/- which was accepted under protest. In this regard, the contention of the respondent is that Sarabjit Kaur purchased the demised shop vide sale deed dated 03.07.1997 Ex.AW1/1, with the execution of the sale deed Ex. AW1/1, Sarabjit Kaur became owner/landlord with effect from 03.07.1997. Though there is no recital in the sale deed that Sarabjit Kaur would be entitled to recover the entire rent even pertaining to the period prior to 03.07.1997, but it has been held by our own Hon'ble High Court in case titled as Manmohan Singh Bedi Vs Santosh Kumari and others (supra) relied upon by the counsel for the applicant that purchaser from a landlord to continue the ejectment proceedings so far as the ground of Civil Revision No.1217 of 2010(O & M) 9 non-payment of arrears of rent is concerned though the ground of personal necessity being a personal ground is not available to the vendees. Therefore, in view of the law laid down by the Hon'ble High Court in Manmohan Singh Bedi's case, the applicant entitled to recover the rent once he substitutes the original land having purchased the tenanted property by way of registered sale deed. The applicant Sarabjit Kaur is therefore entitled to continue prosecute the ground of non-payment of rent. In these circumstance it is held that the rent tendered by the respondent in court on 23.01.1994 is short and invalid. It has been rightly held by the learned Rent controller that since Ajit Singh, the original landlord has purchased the demised shop on 21.02.1990 he could claim rent only with effect from the date. Therefore, the respondent was required to tender the rent in the following terms:- From 21.02.1990 to 30.08.1990 @ Rs. 175/- PM From 01.09.1990 to 30.08.1991 @ Rs. 200/- PM From 01.09.1991 to 30.08.1992 @ Rs. 225/- PM From 01.09.1992 to 30.08.1993 @ Rs. 250/- PM From 01.09.1993 to 30.08.1994 @ Rs. 275/- PM From 01.09.1994 to 31.12.1994 @ Rs. 300/- PM along with usual interest at the rate of 6% per annum plus costs assessed by the Rent Controller amounting to Rs. 14,054/-. Though,it has been argued on behalf of the applicant that since the respondent has denied the relationship of landlord and tenant, no opportunity can now be afforded to the Civil Revision No.1217 of 2010(O & M) 10 respondent to make good the shortage in the tender. In this regard, the learned counsel for the applicant has relied upon case law reported in Hukma Devi vs.Bhagwan Dass(supra) whereby it has been held that if the tenant denies title of landlord and ultimately it is proved that there is relationship of landlord and tenant the tenant cannot be allowed to deposit arrears of rent to escape eviction. However, in the considered opinion of this Court, the above case law cannot be applied to the facts and circumstances of the present case considering the fact that though in the written statement the relationship of landlord and tenant was denied, yet the respondent did make the tender thereby he in a way admitted the relationship of landlord and tenant between the parties. Moreover, the rent was tendered in the year 1994 whereas the law regarding assessment of provisional rent in case Rakesh Wadhawan vs.Jagdamaba Industrial Corporation, 2002(1) RCR(Rent) 514(SC) by the Hon'ble Supreme Court much later has been laid probably in the year 2002. It would therefore be appropriate if the respondent is given an opportunity of making good the shortage in the tender. As a result of above discussion, the findings on issue No.2 are reversed and this issue is decided in favour of the applicant but an opportunity is hereby afforded to the respondent to make good the shortage in the tender by tendering rent as under: From 21.02.1990 to 30.08.1990 @ Rs.175/- p.m. Civil Revision No.1217 of 2010(O & M) 11 From 01.09.1990 to 30.08.1991 @ Rs.200/- p.m. From 01.09.1991 to 30.08.1992 @ Rs.225/- p.m. From 01.09.1992 to 30.08.1993 @ Rs.250/- p.m. From 01.09.1993 to 30.08.1994 @ Rs.275/- p.m. From 01.09.1994 to 31.12.1994 @ Rs.300/- p.m. which comes to ` 14,050/-. After deducting the amount of tender ` 2,480/- already made, the respondent shall deposit the balance amount of ` 11,574/-within a period of two months from today failing which he shall be liable to be evicted on the ground of non payment of rent. A perusal of the aforesaid discussion would show that the rent note Ex.AW3/1 were duly proved on record of the case. Respondent- Kundan Lal has not entered into witness box to deny the execution of the said rent deed. Kundan Lal remained alive till 24.09.2006 and he did not appear before the Rent Controller as a witness to deny the execution of the said document but he chose not to appear and thus an adverse inference has been drawn against him, rightly. It may also be noticed that the correctness of the aforesaid rent note has not been challenged in any of the proceedings. In view of the aforesaid discussion, no fault can be found with the findings of the Appellate Authority, in this regard. It may also be noticed that in view of the judgment of the Hon'ble Supreme Court in the case of Rakesh Wadhawan(Supra), in a case where a tenant has denied the relationship of landlord and tenant, such a tenant cannot be allowed to deposit the arrears of rent to escape eviction by giving an opportunity to make up the deficiency in the tender. My view is supported by a judgement of this Court in Hukma Devi versus Bhagwan Dass 2003(2) PLR 371. In this view of the matter, the Appellate Authority while Civil Revision No.1217 of 2010(O & M) 12 disposing of the appeal could not have allowed an opportunity to the tenant to make up the deficiency in the tender and the impugned order of the Appellate Authority is liable to be modified to the extent that the petitioner-tenant is not entitled to any opportunity to make up the deficiency in the tender and is liable to be evicted. In this view of the matter, the petition filed by the tenant- petitioner i.e.Civil Revision No.1217 of 2010 is dismissed and the petition filed by the respondent-landlord i.e.Civil Revision No.4660 of 2010 is allowed and the eviction petition is allowed on the ground of non-payment of rent and the petitioner-tenant is ordered to be evicted from the demised premises. (RAKESH KUMAR GARG) JUDGE 29.08.2011 neenu