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PUNJAB NATIONAL BANK. versus SWAYAM PARKAS & ANR.

High Court of Punjab and Haryana, Chandigarh

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PUNJAB NATIONAL BANK. v. SWAYAM PARKAS & Anr. - CR-5658-2000 [2005] RD-P&H 234 (23 November 2005)

C.R. No. 5658 of 2000. -Page numbers-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.R. No. 5658 of 2000.

Date of Decision 4.1.2006

Punjab National Bank. Appellant.

Versus

Swayam Parkas and another. Respondents.

Coram: HON'BLE MR. JUSTICE HEMANT GUPTA.

Present: Shri Jagdish Marwaha, Advocate, for the petitioner.

Shri S.K. Jain, Advocate,

for the respondent.

JUDGMENT

The petitioner is aggrieved against the order passed by the authorities under Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter to be referred as `the Act'), whereby the counter claim raised by the petitioner for adjustment of rent paid earlier was dismissed.

The brief facts of the case out of which the present Revision Petition has arisen, are that the landlord sought ejectment of the petitioner C.R. No. 5658 of 2000. -Page numbers-

by filing a petition under Section 13 of the Act on 17.2.1987, inter-alia, on the ground that the tenant has failed to make the payment w.e.f. 1.5.1986. In the written statement filed, it was pointed out that the amount of Rs.22,000/- as rent for the period 1.5.1986 to 28.5.1987, was deposited by the Bank in the current account of the landlord. In order to avoid ejectment on the ground of arrears of rent, the Bank tendered Rs. 22860/- towards the arrears of rent, interest and costs. Subsequently, the Bank in the written statement raised a counter claim for adjustment of the said amount. It may be noticed that the landlord is a guarantor of payment of dues to the Bank of one Shri Suraj Mal Biyani and since under the arrangement entered upon by the said Suraj Mal Biyani the landlord with the Bank , it was agreed that if there is any default in the payment of the dues of the Bank, the amount can be withdrawn from the account of the landlord for appropriation of the dues in the account of said Suraj Mal Biyani.

During the pendency of the petition before the learned Rent Controller itself, the Bank vacated the premises. The learned Rent Controller, dismissed the counter claim, inter-alia, on the ground that the Punjab National Bank has not established its relationship of tenant with the petitioner as it was Hindustan Commercial Bank, which was inducted C.R. No. 5658 of 2000. -Page numbers-

as a tenant as well as the act of withdrawal from the current account of the respondent is not justified. The appeal against the said order was dismissed.

It was held that since Bank has vacated the building, no order of adjustment of rent can be passed.

Learned counsel for the petitioner has vehemently argued that in terms of Section 7 of the Act, the petitioner is entitled to adjustment of rent, which has been paid twice over for the same period. The rights of the parties have to be determined on the date of filing of the petition i.e. the date of counter claim and, therefore, mere vacation of the premises later cannot be a ground to non suit the petitioner. The finding recorded that since no adjustment can be made from the rent payable, therefore, the counter claim cannot be allowed, is not sustainable in law. Learned counsel for the petitioner has relied upon Harbhajan Singh Vs. Balwant Singh 1996 Haryana Rent Reporter 404 and Amar Singh & Ors. Vs. Pritam Kaur 1997(1) Civil Court Cases 456 (P&H).

On the other hand, learned counsel for the respondent-landlord has argued that Section 7 of the Act, contemplates adjustment of the rent and since the rent is not payable any longer by the Bank, the excess payment made, cannot be ordered to be refunded in a counter claim. The C.R. No. 5658 of 2000. -Page numbers-

Bank has to resort to alternative remedy to seek the redressal claiming the said amount from the landlord. He has placed reliance on the judgment of this Court in Ram Avtar Vs. Anand Sarup Mangla 1983(1) Rent Law Reporter 348.

After hearing learned counsel for the parties, I am of the opinion that the orders passed by the authorities under the Act are not sustainable in law. The petitioner has raised counter claim in the written statement filed on 5.4.1987. Earlier the petitioner has paid Rs.22,000/- towards rent. Subsequently the petitioner in the face of the threat of eviction on a petition under Section 13 of the Act, tendered an amount of Rs.22,860/- inclusive of interest and costs. The said factual position could not be disputed by the learned counsel for the respondent. The rights of the parties are to be governed on the date when the lis is initiated. The lis in the present case was initiated on the date of the filing of the ejectment petition on 17.2.1987 or in any case when the counter claim was raised in April, 1987. The premises were vacated sometime later. The rights of the parties have to be determined as on the said date.

On the said date the tenant was in occupation and, therefore, entitled to adjustment of rent. Subsequent vacation of the premises will not defeat the C.R. No. 5658 of 2000. -Page numbers-

right of the tenant to claim adjustment of rent and if situation so warrants to get an effective order passed by the Rent Controller, to recover the excess payment so made. In the absence of such a direction, it will lead multiplicity of the litigation and that cannot be the intention of the Legislature or of the Courts to give effect to the provisions of law.

Therefore, against that alternative remedies have to be resorted to by the petitioner, is not sustainable.

Consequently, the present petition is allowed, the orders passed by the authorities under the Act, are set aside and the counter claim filed by the petitioner is allowed. The respondent-landlord is directed to refund the amount of Rs.22,860/- along with interest @ 8% p.a. to the petitioner.

It is needless to say that the landlord shall have a right to claim arrears of rent, if any, from the petitioner, in accordance with law.

January 4, 2006. (Hemant Gupta)

ds Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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