CR No.5638 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5638 of 2011 Date of decision: 28.9.2011 Madan Lal ......Petitioner(s) Versus Nirmal Kumari and Ors. ......Respondent(s) CR No.4605 of 2011(O&M) Madan Lal ......Petitioner(s) Versus Nirmal Kumari Sharma and Ors. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ram Bilas Gupta, Advocate for the petitioner(s). Mr. B.S. Thind, Advocate for the respondent(s). Rakesh Kumar Garg, J. This judgment shall dispose of two revision petitions i.e. CR No.4605 of 2011 and 5638 of 2011 as both these petitions have arisen out of ejectment proceedings of the petitioner from the demised premises. The respondent-Nirmal Kamari initially filed an eviction petition before the Rent Controller under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as the “Rent Act”). Later on, respondent No.2 was also impleaded as party vide order dated 27.10.2009 as she had purchased the suit property from Nirmal Kumari- respondent No.1. The ejectment order was passed against the petitioner- tenant by the Rent Controller on 5.5.2003. Appeal preferred by him was accepted by the Court of Sh. H.S. Bhangoo, the then Appellate Authority, Panchkula vide his order dated 8.8.2003. However, in Civil Revision CR No.5638 of 2011 2 No.454 of 2004 filed on behalf of the respondent-landlord vide order dated 4.3.2008, the case was remanded back to the Appellate Authority. Ultimately the Appellate Authority, Panchkula upheld the order of the Rent Controller of evicting the petitioner and dismissed the appeal vide its judgment dated 16.9.2008. Feeling aggrieved, the petitioner approached this Court vide CR No.5461 of 2008. The said revision petition was disposed of vide judgment dated 2.3.2010 which reads as follows:- “Present: Mr. Sudhir Paruthi, Advocate for the petitioner. Mr. Bhupinder Singh, Advocate for the respondents. S.D. Anand.J. On consensual basis, the revision petition is dismissed on merits thereof. On further consensual basis the petitioner-tenant shall have two years time from today to vacate the tenanted premises subject of course to his clearing the arrears of rent within two months from today and further that he will keep on paying the agreed rent by the 10th of every calendar month. Disposed of accordingly. SD/- S.D. Anand Judge” It may also be noticed that the respondent-landlord also filed a civil suit for recovery of rent w.e.f. April, 1992 upto June, 1996 and from the month of January, 2003 upto August, 2003, the said civil suit was contested by the petitioner and when the case was fixed for pronouncement of the judgment, it was withdrawn by the respondent- landlord on 20.7.2009. It may also be noticed that the petitioner-tenant filed an CR No.5638 of 2011 3 application before the Rent Controller, Panchkula for depositing the arrears of rent in compliance of the order dated 2.3.2010 passed by this Court in CR. No.5461 of 2008 whereas the respondent-landlord also filed an application before the Rent Controller to direct the petitioner to deliver the vacant possession of the demised premises on the ground that he had failed to pay the arrears of rent as calculated by the Rent Controller and further affirmed by this Court. The said application of the respondent- landlord was held not maintainable in its present form vide order dated 29.11.2010. The relevant paragraph of the said order reads thus: “Thus, it is observed that the present proceeding had been initiated by the tenant merely to deposit his monthly rent in this court and the landlord did not have any locus standi to seek eviction of the tenant in the present form, without adopting the due process of law. Thus, as far as the filing of the application by landlord Smt. Nirmal Kumari Sharma and another is concerned is held to be not maintainable in its present form and they are directed to adopt appropriate procedure to seek ejectment of the tenant Sh. Madan Lal appropriate procedure to seek ejectment of the tenant Sh. Madan Lal from the tenanted premises for non payment of arrears of rent, within two months as ordered by Hon'ble Punjab and Haryana High Court. However, it is also pertinent to mention that Hon'ble Court has not directed the trial Court to order eviction of the tenant straightway on filing of an application by the landlord, in its order dated 2.3.2010. Therefore, it is observed that necessary action could have been taken by the Executing Court. Therefore, the application of the landlord for ejectment of the tenant/application is held to be not maintainable in its present form” The said order dated 29.11.2010 was not challenged by the CR No.5638 of 2011 4 respondent-landlord. After dismissal of the application, the landlords-DHs moved execution petition before the Rent Controller exercising the power of the Executing Court The execution was filed by the landlords-decree holders on 16.12.2010 on which the following order was passed: Execution application alongwith affidavit filed by the decree-holder. It be checked and registered. Report of Ahlmad is awaited for 18.2.2011. (Jyoti Birbian) CJ (JD)/PKL 18.12.2010” But, again on 18.12.2010, an application was moved by the decree holders and on that application, the following order was passed by Ms. Jyoti Birbian, the then Rent Controller/Civil Judge, (JD), Panchkula on 18.12.2010. “File put up before me on an application of Decree holder to take up the file due to urgency involved. Arguments heard. It is observed that execution petition was fixed for 18.02.2011 without calling for Ahlmad's Report. Therefore, Ahlmad to report after lunch.” “File put up after lunch. Report of Ahlmad received and perused. As per report, no stay order has been received in this execution petition. Now warrant of possession against the judgment-debtor be issued for 18.2.2011, the date already fixed. SD/- (Jyoti Birbian) CJ (JD)/PKL 18.12.2010” In consequence of that warrant of possession, the possession was delivered to the decree holders on 22.12.2010. CR No.4605 of 2011 has been filed by the petitioner CR No.5638 of 2011 5 challenging the aforesaid order dated 18.12.2010 issuing warrant of possession against him and the consequent delivery of possession to the respondent-decree holder on 22.12.2010. The petitioner also moved an application before the Executing Court/Rent Controller, Panchkula to recall the order dated 18.12.2010 by virtue of which warrant of possession was issued and further directing the decree-holder/respondent to restore the possession of the demised premises to him. The said application was filed by the petitioner on 3.1.2011. In the application, it is specifically pleaded by the tenant-JD that the possession was taken by the landlords-DHs by concealing the true facts from the court. He had paid the arrears of rent at the rate of Rs.350/- per month upto 31.8.2009 and thereafter he deposited the arrears of rent from 1.9.2009 to 31.12.2009 at the rate of Rs.350/- per month with the Hon'ble Court through treasury challans. It was also pleaded that the suit filed by them for recovery was withdrawn by the landlord. However, the said application has been dismissed vide impugned order dated 24.8.2011 which is impugned in CR No.5638 of 2011. At this stage, it is relevant to mention that comments of Rent Controller, Panchkula were called which were received vide memo No.335 dated 16.8.2011 which reads thus: “In compliance with the order dated 1.8.2011 passed by the Hon'ble High Court in CR No.4605 of 2011, my comments are as under:- An application under order 21 rule 11 CPC was filed by Nirmal Kumari Sharma and Bina Sharma against Madan Lal before my learned Predecessor on 16.12.2010. Further, vide order dated 18.12.2010, passed by my learned Predecessor, the warrant of possession were issued. Thereafter, as per the zimni order, an application for recalling order dated 18.12.2010 was filed on behalf of JD on 4.1.2011 before CR No.5638 of 2011 6 my learned Predecessor and the matter was adjourned to 10.1.2011 by my learned Predecessor. Further, as per order dated 10.1.2011 passed by learned Predecessor, the GPA of decree holder appeared and sought time to file reply to the above application and the matter was adjourned to 22.1.2011. However, as per the record available on file, in the meanwhile, the warrant of possession were executed and the possession was delivered to a decree holder as per the report of bailiff dated 15.2.2011. On 22.1.2011, the matter was again adjourned to 19.2.2011 for filing reply to the above application by my learned Predecessor. Further, as per order dated 17.2.2011, passed by my learned Predecessor, the learned Presiding Officer was on leave on 18.2.2011 and the matter was again adjourned to 19.2.2011. Again as per order dated 19.2.2011, passed by my learned Predecessor, the reply to the above application not filed and on request, the matter was again adjourned to 19.3.2011. As per order dated 19.3.2011, passed by my learned Predecessor, the reply to the above application filed and the matter was adjourned to 23.4.2011 for consideration on above application. On 23.4.2011, this case file was put up before me for the first time and on joint request, the matter was adjourned to 21.5.2011 for consideration on above application. Again on 21.5.2011, on joint request of counsel for parties, the matter was again adjourned to 13.6.2011 for consideration. On 13.6.2011 also, the arguments not addressed and on joint request of counsel for parties, the matter was adjourned to 23.7.2011. Again on 23.7.2011, the arguments was not addressed by counsel for both the parties and adjournment was sought by counsel for the parties and the matter was adjourned to 20.8.2011 for consideration on above application, which is also now the date fixed in this case. The above application could not be decided as the arguments on same not addressed by counsel for CR No.5638 of 2011 7 both the parties.” Narration of the aforesaid facts as noticed above would show that Ms. Jyoti Birbian, the then Rent Controller, Panchkula exercising the power of Executing Court issued the notice to the judgment-debtor vide order dated 16.12.2010 for 18.2.2011 but again took up the case on 18.12.2010 and issued warrant of possession without issuing notice to the petitioner. The order dated 2.3.2010 was not a simpliciter order of ejectment or for possession but a conditional order in which the judgment debtor was required to pay the arrears of rent, so the principle of natural justice required that before issuing the warrant of possession, the judgment debtor must had been heard. Learned Rent Controller could not accept the version of the decree holders in the absence of any authenticated proof of non-payment. The Rent Controller while passing the order regarding issuance of warrant of possession vide order dated 18.12.2010 even did not apply her mind as to whether the judgment debtor was in arrears of rent or not. It was the duty of the Rent Controller/Executing Court to satisfy herself before issuing the warrant of possession as to whether infact the judgment debtor was in arrears of rent or not. Atleast it was the duty of the Rent Controller to record her satisfaction about non-payment of rent before issuing the warrant of possession. Since the warrant of possession has been issued in favour of the decree holders against the judgment debtor/tenant without issuing notice to him, so the judgment debtor has been condemned unheard. Moreover, said order dated 2.3.2010 was already on record of the execution petition and controversy with regard to the arrears of rent was very much in the knowledge of Executing Court as while rejecting application of decree holder for delivery of vacant possession vide order dated 29.11.2010, the executing Court had noticed that judgment-debtor tenant was disputing his liability to pay the arrears as CR No.5638 of 2011 8 claimed by the decree-holder. It has been argued that Ms. Jyoti Birbian, the then Rent Controller, Panchkula had observed in the order dated 29.11.2010 that the judgment debtor was in arrears of rent. But the said application was dismissed without affording the opportunity to the judgment debtor to lead his evidence or to prove that the rent was paid by him. Since on the said application, the Rent Controller herself did not issue warrant of possession, so that order could not be made basis of the issuing the warrant of possession without notice to the judgment debtor. Moreover, the Rent Controller did not give reason while issuing the warrant of possession that she relied upon the order dated 29.11.2010 nor she observed that the judgment debtor was in arrears of rent. In the present case, affording of an opportunity was necessary as the decree holders who had filed a recovery suit which was contested by the judgment debtor, at the stage of order, had withdrawn their suit. So, this withdrawal of the suit certainly creates suspicion that the decree holders had a fear that their suit would be dismissed, so they preferred to withdraw it. One another legal question also arose to consider the effect of the suit which has been withdrawn by the decree holders It was also to be decided as to whether after withdrawal of the said suit, the decree holders were entitled to claim the said arrears or they were debarred. So, the controversy between the parties regarding non-payment of arrears of rent could not be decided in the manner in which it was decided by the Rent Controller. So non-issuance of notice to the judgment debtor particularly when the facts and circumstances of the case required that he should be heard, before the issuance of warrant of possession, amounts to miscarriage of justice. The application filed by the judgment debtor-tenant later on for CR No.5638 of 2011 9 restoration of the possession has been dismissed by the court of Shri Man Pal, Civil Judge (JD), Panchkula exercising the power of Rent Controller as Executing Court. The controversy in the said application was as to whether the warrant of possession vide order dated 18.12.2010 was issued rightly and if not, whether judgment debtor was entitled to be put into possession back. However, the Executing Court has proceeded to pass the order dated 24.8.2011 totally on wrong assumptions. In the said application, the Court was required to find out as to whether the order dated 18.12.2010 was passed in violation of the settled principles of law and if yes, whether the judgment debtor was entitled to restoration of possession in respect of demised premises. But while passing the order dated 24.8.2011 Executing Court has given no finding to the effect that order dated 18.12.2010 issuing warrant of possession at the back of the judgment-debtor and taking the case on 18.12.2010 at the application of decree-holder when the case was already fixed for 18.2.2011 for notice to the judgment debtor in the execution proceedings was justified. While rejecting the prayer for restoration of possession, the Executing Court has further failed to notice the order dated 2.3.2010 of this Court whereby judgment-debtor was allowed to continue in possession upto 1.3.2012 In this view of the matter, this Court is of the view that the impugned orders dated 18.12.2010 and 24.8.2011 passed by the Executing Court/Rent Controller, Panchkula are against the well settled principles of law. The Executing Court could have issued warrant of possession only after satisfying itself about the fact that judgment debtor was in arrears of rent and had not complied with the order dated 2.3.2010 of this Court in CR No.5461 of 2008. The Executing Court has failed to even mention any reason for taking up the case on 18.12.2010 and issuing warrant of possession in the face of order dated 16.12.2010 vide which JD- CR No.5638 of 2011 10 petitioner was issued notice for 18.2.2011 to show cause to the execution application for issuance of warrant of possession. In these circumstances and for the reasons mentioned above, the impugned orders cannot be sustained in law and are hereby set aside with liberty to decide the execution petition afresh after giving opportunity to the petitioner-JD and keeping in view the orders of this Court. It is well settled that Article 227 of the Constitution of India confers vast powers on this Court to prevent the abuse of process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. For securing the ends of justice, this Court can interfere with an order which causes miscarriage of justice or is palpably illegal or is unjustified. Since the petitioner has been dispossessed from the demised premises in a wholly unjustified and palpably wrong manner, he is entitled to be placed in the position but for the order dated 18.12.2010. Thus, status of the JD-petitioner is to be restored back as on 18.12.2010. It is well settled law that the jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case strictly falls within the ambit of Section 144 of the Civil Procedure Code. A reference can be made to a judgment of the Hon'ble Supreme Court in the case of Kavita Trehan v. Balsara Hygiene Products Ltd. (1994) 5 SCC 380. Further reference can also be made to a judgment of the Hon'ble Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal and others, 2010 (1) RCR (Civil), 842 wherein it has been held that the Court should also ensure that the petition filed for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions/or the petitions CR No.5638 of 2011 11 filed for extraneous considerations. Since the petitioner has been wronged, he is also entitled to costs which are assessed at Rs.2,00,000/- . The petitioner is also held entitled to the restoration of the demised premises forthwith and is entitled to remain in the demised premises upto 2.3.2012 plus the period he remained out of possession i.e. w.e.f. 18.12.2010 till he is put into possession back in the premises, subject to the conditions as mentioned in the order dated 2.3.2010. The respondents are directed to put the petitioner back in possession and thereafter, the Executing Court will proceed further with the execution of the orders of eviction against the petitioner after giving him an opportunity to prove that he has complied with the orders of this Court in CR No.5461 of 2008. Both the revision petitions are thus, allowed. Let a copy of this order be also placed before the present Administrative Judge of Ms. Jyoti Birbian, the then Rent Controller/Executing Court, Panchkula. September 28, 2011 (RAKESH KUMAR GARG) ps JUDGE CR No.5638 of 2011 12 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4605 of 2011(O&M) Date of decision: 28.9.2011 Madan Lal ......Petitioner(s) Versus Nirmal Kumari Sharma and Ors. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ram Bilas Gupta, Advocate for the petitioner(s). Mr. B.S. Thind, Advocate for the respondent(s). Rakesh Kumar Garg, J. CM No.22356-CII of 2011 CM is allowed subject to all just exceptions. CR No.4605 of 2011(O&M) For orders, see CR No.4605 of 2011. September 28, 2011 (RAKESH KUMAR GARG) ps JUDGE