Punjab-Haryana High Court
Pankaj Bansal vs Kulbhushan Jain on 4 March, 2024
Author: Archana Puri
Bench: Archana Puri
2024:PHHC:030850
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-2317-2022 (O&M)
Date of Decision: March 04, 2024
Pankaj Bansal
...Petitioner
Versus
Kulbhushan Jain
...Respondent
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Vansh Chawla, Advocate
for the petitioner.
Ms.Neha Jain, Advocate
for the respondent.
****
ARCHANA PURI, J.
Challenge in the present revision petition is to the order dated
22.04.2022 (Annexure P-6), passed by learned Rent Controller, whereby, an
application for dismissal of the petition being not maintainable or in the
alternative framing the preliminary issue regarding maintainability of the
petition, has been allowed.
The material facts, as culled out from the paperbook, are as
follows:-
That, initially, petitioner-landlord Pankaj Bansal had filed a petition
under Section 13 of the East Punjab Urban Rent Restriction Act, 1949,
thereby, seeking ejectment of the respondent-defendant, from the shop
measuring 53 sq. yards, having dimensions of 15' x 32', as detailed in the
2024:PHHC:030850
headnote of the ejectment petition, copy whereof is Annexure P-1. In
pursuance of the notice issued, respondent-tenant, made appearance and
filed reply.
During the pendency of the ejectment petition, respondent-
tenant filed an application, thereby, seeking dismissal of the petition, being
not maintainable or in the alternative, framing the preliminary issue,
regarding maintainability of the petition. In the said application, it was
averred that Pankaj Bansal had filed the ejectment petition, qua the premises
measuring 15' x 32', situated at Ahmedgarh, on the grounds of arrears of
rent, personal necessity etc. and the rate of rent of the demised premises was
claimed to be Rs.500/- per month. However, it was averred that there is no
alleged premises measuring 15' x 32' and no such alleged tenancy qua 15' x
32' feet was ever created. Rather, real facts averred were that father of the
respondent (tenant) namely Tek Chand, took one shop on rent from
Purshotam Lal, Dharam Pal, Ram Chand and Purnanand, measuring 32' x
32', without any intervening walls, being a single shop, on rent of Rs.4000/-
per annum. After the death of respondent's father Tek Chand, the
respondent came into possession of the abovesaid shop measuring 32' x 32'.
The fact about single tenancy of the shop measuring 32' x 32' @ Rs.4000/-
per annum, has been admitted in earlier round of litigation between the
parties. The detail of the said litigation, as mentioned in the application, is
herein given:-
i) Civil Suit No.1253 of 28.10.1993 decided on 23.08.1996
titled as Purshotam Lal etc vs. Tek Chand.
ii) Rent Petition No.15 of 27.01.1994 decided on
27.03.1998 titled as Tek Chand vs. Purshotam Lal etc.
2024:PHHC:030850
iii) Rent Petition No.115 of 10.11.1994 decided on
20.08.1998 titled as Purshotam Lal etc. vs. Tek Chand.
Even, in the application, it is averred that in the aforesaid litigation,
Dharam Pal Bansal was also a party and as such, the petitioner-landlord is
fully aware of the aforesaid facts. Now, Pankaj Bansal had filed the eviction
petition only qua 15' x 32' out of said above shop, claiming its rent to be
Rs.500/- per month, which is not maintainable, at all. As such, a prayer was
made for dismissal of the ejectment petition on the ground of being not
maintainable or in the alternative, issue regarding maintainability of the
petition be framed.
In reply, it is averred by the petitioner that father of the
respondent Tek Chand took property measuring 32' x 32' i.e. two shops on
rent, from Purshotam Lal and Purnanand @ Rs.4000/- per annum. After that,
Purshotam Lal and Purnanand, jointly transferred their share in one shop,
measuring 53 sq. yards (which is demised premises), vide registered transfer
deed No.996 dated 24.12.2015, to Dharam Pal Bansal (since deceased), who
was father of the present petitioner. In the month of April, 2016, the
respondent had orally settled the rent of demised shop, measuring 15' x 32',
with Dharam Pal Bansal @ Rs.500/- per month and respondent became
tenant, under Dharam Pal Bansal of the demised shop. Later on, respondent
also started paying rent of demised shop to Dharam Pal Bansal, at this rate,
but he is in arrears of rent, since June 2016. As such, it is submitted that the
ejectment petition is maintainable and a prayer was made for dismissal of
the application.
After hearing learned counsel for both the parties, in the
2024:PHHC:030850
impugned order, it was observed by learned Rent Controller that the
question with regard to there being two distinct shops, leased out to father of
the respondent or about the single shop having leased out to the father of the
respondent and that petitioner-landlord is seeking ejectment, only of half
portion, after splitting the tenancy, is a question, which is a matter of
evidence and can only be decided, after the parties lead evidence on this
point. But however, two preliminary issues were framed, which reads as
follows:-
1. Whether the present petition is maintainable? OPA
2. Whether the present petition is bad as the petitioner has
split the tenancy and claimed ejectment of the respondent
out of one of the portions of the tenancy? OPR
For evidence, on the preliminary issues, the case was fixed for further
date.
Feeling aggrieved with the aforesaid order, the petitioner
(landlord before learned Rent Controller) has filed the present revision
petition.
Learned counsel for the parties heard.
The copy of the ejectment petition filed before learned Rent
Controller is placed on record as Annexure P-1. Perusal of the same reveals
that the ejectment petition was filed qua one shop measuring 53 sq. yards,
dimensions whereof, has been mentioned as 15' x 32'. In paragraph No.2 of
the said petition, there is specific mention made about two shops measuring
32' x 32', having rented out to Tek Chand, father of the respondent, at first
instance, @ Rs.4000/- per annum. Further, there are also averments with
regard to one shop measuring 53 sq. yards (15' x 32'), having transferred to
2024:PHHC:030850
father of the petitioner by registered ownership deed dated 24.12.2015 and
thus, the ejectment petition, is with regard to this shop, having transferred in
the name of Dharam Pal Bansal, father of the petitioner.
However, in reply, assertion is with regard to splitting of the
tenancy, as it is alleged that the property measuring 32' x 32' is one single
shop and while splitting the tenancy of half shop, the ejectment petition has
been filed. In the application, as already observed aforesaid, there is stated
to be an earlier round of litigation, where of the fact of tenancy to be single,
relating to shop measuring 32' x 32', is spelt out. Only on this ground, the
present application has been filed to dismiss the ejectment petition, on the
ground of maintainability or to frame preliminary issue.
Perusal of the impugned order reveals that learned Rent
Controller had correctly observed that question, whether single shop was
leased out to father of the respondent (tenant) or two distinct shops, under
two different contracts were leased out to the father of the respondent-tenant,
is matter of evidence and can only be decided, after the parties will lead
evidence on this point. Also, it has been correctly observed that it is a
matter of evidence, whether exception to the rule of splitting of tenancy that
where splitting of tenancy is created by operation of law, is applicable in this
case or not. However, while so correctly observing, learned Rent Controller
had further erroneously framed two preliminary issues, the detail whereof,
has been given in the earlier portion of the judgment.
Sub-rule (2) of the Order 14 Rule 2 CPC lays down that where
issues both of law and of fact arise in the same suit and the Court is of
opinion that the case or any part thereof, may be disposed of on an issue of
2024:PHHC:030850
law only, it may try that issue first, if that issue relates to (a) the jurisdiction
of the Court, or (b) a bar to the suit created by any law for the time being in
force. However, under Order 14 Rule 2, where issues both of law and of
fact arise in the same suit and the Court is of the opinion that the case or any
part thereof, may be disposed of on the issues of law only, it shall try those
issues first, and for that purpose may, if it thinks fit, postpone the settlement
of the issues of fact, until after the issue of law have been determined. The
jurisdiction to try issues of law apart from the issues of fact, may be
exercised, only where in the opinion of the Court, the whole suit may be
disposed of on the issue of law alone, but CPC confers no jurisdiction upon
the Court to try a suit on mixed issues of law and fact, as preliminary issues.
Normally, all the issues in a suit should be tried by the Court, but not to do
so, when the decision on issues, even of law, depends upon the decision of
issues of fact. When there is mixed question of law and fact, it cannot be
treated as preliminary issue.
In this backdrop, when it is a categoric claim of the petitioner,
about the property to be having dimensions of 32' x 32', which consists of
two shops and one shop, having transferred in the name of his father, on the
basis whereof, he had stepped into the shows of landlord, therefore, this
question with regard to splitting of tenancy, as raised by the respondent, can
only be established after the evidence is adduced.
In the given circumstances, though learned Rent Controller had
correctly made observation with regard to such questions, about the extent of
tenancy and also about the question of splitting of tenancy, as raised by the
tenant, to be adjudicated after the evidence is adduced but at the same time,
2024:PHHC:030850
had erroneously framed preliminary issues. These issues are also required to
be taken into consideration, when the evidence is adduced in the main case.
In these circumstances, the question with regard to maintainability, as
asserted by the respondent, cannot be treated as preliminary issue. The
issues framed are mixed question of law and fact and therefore, they cannot
be treated as preliminary issues and adjudicated, at first instance.
In the light of the aforesaid observations, the revision petition is
hereby allowed and the impugned order is set aside, as a result whereof, the
application filed, at the instance of the respondent-tenant, stands dismissed.
March 04, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
