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VEENA KHURANA versus HARI CHAND

High Court of Punjab and Haryana, Chandigarh

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Veena Khurana v. Hari Chand - CR-4256-2003 [2006] RD-P&H 4736 (25 July 2006)

In the High Court of Punjab and Haryana at Chandigarh

......

Civil Revision No. 4256 of 2003

.....

Date of decision:31.5.2006

Veena Khurana

.....Petitioner

v.

Hari Chand

.....Respondent

....

Present:- Mr. H.S.Sirohi, Advocate for the petitioner.

Mr. Gulshan Sharma, Advocate for the respondent.

.....

S.S. Saron, J.

This petition has been filed under Section 15 (5) of the East Punjab Rent Restriction Act, 1949 ( 'the Act' - for short ) against the order dated 15.5.2003 passed by the learned Appellate Authority, Ropar, whereby the appeal of the tenant-petitioner against the order dated 4.1.2001 passed by the learned Rent Controller, Ropar has been dismissed.

The landlord-respondent filed an application under Section 13 of the Act seeking the ejectment of the tenant-petitioner from the first floor of House No.419, Ward No.4, Sugar Mill Road, Morinda on the ground of non- payment of rent. It was alleged that the demised premises had been given on rent to the tenant-petitioner in the month of June 1994 @ Rs.1000/- per month excluding the water and electricity charges as well as the taxes. The tenant-petitioner had been regularly paying rent up to 31.12.1994 and receipts in this respect were also issued to her. However, she did not pay the C.R. No.4256/2003

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rent for the period from 1.1.1995 onwards. The tenant-petitioner had taken the plea that she had taken the demised premises on rent from the landlord- respondent and his son, namely, Uttam Chand, @ Rs.200/- per month including water charges. It is submitted that as there was no cupboard in the room she advanced a sum of Rs.10,000/- for the installation of a cupboard.

After the installation of the cupboard at the request of the respondent and his son, the rent was enhanced to Rs.250/- per month. The tenant-petitioner submitted that on 29.4.1996 there was a dispute between her and the landlord-respondent. It is alleged that on account of severe beatings given to her by the landlord, she was admitted in Civil Hospital, Morinda. The matter was ultimately compromised with the intervention of the Police, however, her signatures were obtained on blank papers by the Police for the purpose of recording the compromise. The said papers, it is alleged, were used by the landlord-respondent to prepare a receipt in his favour. The other averments made by the landlord-respondent were denied and it was reiterated by the tenant-petitioner that the rate of rent was Rs.200/- which was later enhanced to Rs.250/- per month. It was prayed that the petition be dismissed. The landlord-respondent by way of rejoinder controverted the stand taken by the tenant-petitioner and also denied the other material averments as submitted in the reply by the tenant-petitioner. The application seeking ejectment of the tenant-petitioner was reiterated in the rejoinder and a prayer was made for eviction of the tenant-petitioner from the demised premises. The learned Rent Controller from the pleadings of the parties framed the following issues:-

"1. What is the rate of rent? Onus on parties.

C.R. No.4256/2003

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2. Whether respondent has paid an amount of Rs.10,000/- towards the rents as alleged? If so, to what effect? OPR.

2-A. Whether the respondent had taken a sum of Rs.10,000/- from the son of the applicant for the purpose of a scooter and applicant had issued a receipt? OPA.

3. Relief." After considering the evidence and material on record it was held by the learned Rent Controller that the landlord-respondent had proved the rate of rent in respect of demised premises to be Rs. 1,000/- per month.

Consequently issue No. 1 was decided in favour of the landlord-respondent holding that the rate of rent in respect of the demised premises is Rs. 1,000/- per month. Issues No. 2 and 2-A were decided against the tenant-petitioner and in favour of the landlord-respondent. Accordingly, the petition for eviction of the tenant-petitioner was allowed and her ejectment from the demised premises was ordered. In appeal filed by the tenant-petitioner, the findings recorded by the learned Rent Controller were affirmed and her appeal was dismissed vide impugned order dated 15.5.2003 which is assailed by way of the present petition.

Mr. H.S.Sirohi, Advocate, learned counsel appearing for the petitioner submits that both the Authorities below have erred in holding that the petitioner could not prove that the rate of rent in respect of the demised premises was Rs. 250/- per month. In fact it is contended that the Authorities below have erred in holding that the rate of rent is Rs.1,000/- per month in respect of the demised premises. In any case, it is contended that in the light of the observations of the Hon'ble Supreme Court in the case of Rakesh C.R. No.4256/2003

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Wadhawan and others v. M/s Jagadamba Industrial Corporation and others, 2002 (1) RCR (Rent) 514, in case there was a deficient tender of the rent a further opportunity to make good the deficiency was liable to be granted to the tenant-petitioner. Strong reliance has also been placed on a judgment of this Court in Raman Kumar v. Surjit Singh, 2004 (1) RCR (Rent) 483 to contend that where rate of rent is disputed and the tenant does not pay the rent despite the assessment made by the Rent Controller he is not liable to be evicted for failure to make the payment within the time fixed by the Rent Controller. Besides, it is contended that the petitioner is not in any case liable to pay the rent to the extent of the tax that has been claimed as the property had been sold by the landlord-respondent in January 2005.

In response, Mr. Gulshan Sharma, Advocate, learned counsel appearing for the respondent submits that in fact the petitioner's counsel has been time and again seeking adjournments so as to seek instructions from his client for the payment of rent which despite taking instructions has not been paid. He has in particular referred to the orders dated 21.9.2004, 9.3.2006 and 18.5.2006 passed by this Court during the pendency of the petition. A perusal of the above said orders, it is contended, would show that the counsel for the petitioner had repeatedly taken time to seek instructions from his client regarding payment of rent in accordance with the assessment made by the Authorities below. In the circumstances, it is contended that sufficient time, in any case, has already been granted to the petitioner to make good the deficiency in respect of the short tender of rent and yet despite taking adjournments, the necessary rent has not been tendered or even offered to be paid.

C.R. No.4256/2003

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I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. Learned counsel appearing for the petitioner has placed strong reliance on the conclusions recorded by the Supreme Court in sub paras (2) and (5) of Rakesh Wadhawan's case (supra). The said conclusions are as under:- "2. The proviso to Section 13(2)(i) of East Punjab Urban Restriction Act, 1949 casts an obligation on the Controller to make an assessment of (i) arrears of rent, (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the `first date of hearing' after the passing of such order of `assessment' by the Controller so as to satisfy the requirement of the proviso.

5. If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct a refund. If, on the other hand, the amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order directing tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction." A perusal of the above shows that the provisions of the Act casts an C.R. No.4256/2003

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obligation on the Rent Controller to make assessment of arrears of rent, interest on such arrears and cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender. Besides, if the final adjudication is at variance with the interim or provisional assessment made, the Controller may order a refund in case an excess amount has been tendered. In case the tender is found to be short or deficient a conditional order directing the tenant to place the landlord in possession of the premises may be passed, however, by giving a reasonable time to the tenant for paying or tendering the deficient amount, failing which alone the tenant shall be liable to be evicted and compliance of the conditional order would save him from eviction.

The facts and circumstances of the case in hand are such that the tenant-petitioner has been, in any case, granted sufficient and adequate opportunity to tender the rent. The Rent Controller had passed the order of eviction against the tenant-petitioner on 4.1.2001. The said order was affirmed by the Appellate Authority on 15.5.2003. The present revision petition came up for hearing on 12.9.2003 and while issuing notice of motion for 13.1.2004, dispossession of the petitioner was ordered to remain stayed meanwhile. On 21.9.2004, learned counsel for the tenant-petitioner took time to seek instructions as to whether the tenant has paid rent after 1.1.1995 and what was rate of rent paid by her to the landlord-respondent. The case was adjourned to 5.10.2004. On the said date time was taken by the counsel for the petitioner as he was not feeling well. Thereafter, time was again taken on 23.9.2005. On 9.3.2006, learned counsel appearing for the petitioner took time to seek instructions regarding the payment of rent as per C.R. No.4256/2003

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assessment made by both the Authorities below and the case was adjourned to 18.5.2006. On the last date, it was stated by the learned counsel for the petitioner that he had wrongly noted the date of hearing as 31.5.2006. While adjourning the case to 31.5.2006 it was observed that in the meantime learned counsel for the petitioner shall have instructions from his client regarding payment of rent as per assessment made by the Courts below.

Today, when the case was taken up no specific instructions have been obtained by the learned counsel appearing for the petitioner as regards the tender of rent. In fact, in terms of the order dated 21.9.2004, learned counsel for the petitioner was to seek instructions as to whether the tenant had paid rent after 1.1.1995 and at what rate. During the hearing of the petition Mr.

Gulshan Sharma, Advocate, learned counsel appearing for the landlord- respondent submitted that in case the tenant-petitioner is even now willing to pay the rent she may do so. Learned counsel appearing for the petitioner though has stated that the tenant is willing to tender rent, however, he is evasive with regard to actual tender of the rent. It is rather stated that the tenant-petitioner has in fact tendered the arrears of rent upto 31.12.2002 @ Rs.250/- per month. Therefore, in my view, it is evident that even during the hearing of the case the tenant-petitioner is not specific as to whether she is ready to tender the amount due as rent as has been assessed by the Authorities below. This is despite the fact that learned counsel for the respondent was willing to accept the rent even if it was tendered at this stage.

In the circumstances, it cannot be said that the tenant-petitioner has not been granted adequate opportunity to tender the rent.

The case of Raman Kumar v. Surjit Singh (supra) referred to by C.R. No.4256/2003

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the learned counsel for the petitioner would not apply to the facts and circumstances of the present case. In the said case it was held that the Rent Controller after recording a finding as regards the monthly rent is to pass a conditional order directing the tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficient amount failing which he alone shall be liable to be evicted.

There is no dispute to the said proposition. However, in the facts and circumstances of the case in hand the tenant-petitioner despite taking several adjournments to seek instructions as regards the payment of rent and even during the course of hearing has half-heartedly been ready to tender the rent as has been assessed by the Authorities below. The same is only to gain more time.

The contention of the petitioner that the property had been sold, is without any merit. It is appropriate to note that insofar as the relationship of landlord and tenant is concerned, the same is admitted between the parties.

Besides, the tenant-petitioner, in any case, has not offered to pay the rent in respect of the demised premises as has been determined by the Authorities below. The said contention was raised for the purpose that the tenant is not liable to pay the tax in respect of the demised premises. Since the tenant is not paying the determined rent even the question of paying tax in respect of the demised premises is inconsequential.

In the circumstances, no ground for interference in exercise of C.R. No.4256/2003

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the revisional jurisdiction of this Court under Section 15(5) of the Act is made out. Consequently, the revision petition is dismissed.

May 31, 2006. (S.S. Saron)

Judge

pj/hsp


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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