Punjab-Haryana High Court
Sunil Kumar Gupta vs Saravjeet Singh on 3 September, 2024
173
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No. 1599 of 2016 (O&M)
Date of Decision: 03.09.2024
Sunil Kumar Gupta
.......... Appellant
Versus
Saravjeet Singh (now deceased) through LRs
........ Respondents
Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:: Mr. Rahul Sharma, Advocate
for the appellant-defendant
defendant.
Mr. Gurbachan Singh Bhatia, Advocate
for the respondent(s)-plaintiff.
plaintiff.
Mr. Divanshu Jain, Advocate
for the applicant (in CM-12695
12695-C-2018)
****
HARKESH MANUJA, J. (ORAL)
By way of present appeal, challenge has been laid to the
judgments and decrees dated 04.05.2015 and 19.02.2016 passed by
the Courts below, whereby suit for possession by way of ejectment,
ejectment
filed at the instance of respondent-plaintiff,
respo plaintiff, stands decreed.
[2] Briefly stating, while claiming himself to be the owner-
owner
landlord of the premises in question comprising of two sheds
measuring 20' x 42' and 10' x 42'; situated in Block No. 65, Gate No.
1, Village Dariya, U.T., Chandigarh,
Chandigarh respondent
respondent-plaintiff
plaintiff filed a suit for
possession by way of ejectment against the appellant
appellant-defendant
defendant,
besides claiming arrears of monthly rent w.e.f. 01.06.2012 to
31.12.2012 @ Rs. 18,500/- per month, as also praying for mesne
profit w.e.f. 01.01.2013 to 31.01.2013 @ Rs. 1,300/- per day along
with interest. It was pleaded in the plaint that the tenancy in favour of
appellant-defendant was terminated at the hands of respondent-
plaintiff vide notice dated 03.12.2012 issued in terms of Section 106
of Transfer of Property Act, 1882 (for short "the 1882 Act") followed
by the filing of suit in hand.
[3] Upon appearance, the appellant-defendant filed written
statement; though, the factum of tenancy under the respondent-
plaintiff was admitted, however, the rate of rent as claimed by the
respondent-plaintiff was disputed. Based on the pleadings, the
following issues were framed by learned Civil Judge (Junior Division),
Chandigarh (hereinafter to be called as "trial Court"):-
" 1. Whether plaintiff is entitled to seek ejectment of
the defendant from the demised premises on the
grounds mentioned in the plaint ? OPP
2. Whether the plaintiff is entitled to recovery of Rs.
1,29,500/- being in arrears of rent w.e.f. 1.6.2012
to 31.12.2012 with future interest @ 18% per
annum from the filing of the suit till its realization
? OPP
3. Whether the plaintiff is entitled to mesne profits
@ Rs. 1,300/- per day being unauthorized
occupant after 31.12.2012 ? OPP
4. Whether the suit is not maintainable in the
present form ? OPD
5. Whether the plaintiff has not approached the
Court with clean hands ? OPD
6. Relief. "
[4] The trial Court vide judgment and decree dated
04.05.2015 decreed the suit in favour of respondent-plaintiff, while
holding that the tenancy qua two sheds measuring 10'x 42' and 20' x
42' which commenced in 2003 & 2007 respectively was validly
terminated vide notice dated 12.12.2012 issued in terms of Section
106 of the 1882 Act, besides grant of decree for recovery of arrears
for a sum of Rs. 18,000/- per month as mesne profit w.e.f. 01.01.2013
till 30.04.2015, as also recovery of mesne profit @ Rs. 31,500/- per
month alongwith interest @ 9% per annum w.e.f. 01.05.2015 till the
date of handing over the possession of the suit property in favour of
respondent-plaintiff.
[5] Aggrieved thereof, the appellant-defendant filed first
appeal, which came to be dismissed vide judgment and decree dated
19.02.2016 passed by learned Additional District Judge, Chandigarh
(hereinafter to be referred as "First Appellate Court"), while
upholding the judgment and decree passed by the trial Court in toto.
Hence, the present appeal.
[6] Impugning the aforesaid judgments and decrees passed
by the Courts below, learned counsel for the appellant-defendant
submits that though suit for possession by way of ejectment qua the
premises in question was filed at the instance of respondent-plaintiff
on 01.12.2013, however, during pendency of the proceedings arising
therefrom, in terms of notification dated 18.01.2019 issued under the
signatures of Secretary, Estates Chandigarh Administration, the area
in question was notified to be controlled under the provisions of
Punjab New Capital (Periphery) Control Act, 1952 (for short "the
1952 Act"). In view thereof, learned counsel submits that the rights
of parties as regards their relationship of lessee and lessor were now
to be governed under the provisions of East Punjab Urban Rent
Restriction Act, 1949 (for short "the 1949 Act") and, therefore, the
suit filed at the instance of respondent-plaintiff was liable to be
dismissed, besides even the decree passed in his favour having
become non-executable in terms of Section 13 of the 1949 Act. In this
regard, learned counsel has also placed reliance upon the relevant
paragraphs from following judgments rendered by this Court:-
(i) Ram Narain and others Versus Ram Lal
and Others, 2003 (2) RCR (Rent) 660;
(ii) Sat Narain Saini Versus Smt. Sita Wati and
another, 1980 (1) RCR (Rent) 589; and
(iii) Mani Subrat Jain Vs. Raja Ram Vohra, 1980
(1) RCR (Rent) 325.
PARA 10 OF RAM NARAIN'S CASE
"10. In view of the above, it is apparent that the
subsequent applicability of the Rent Act on
account of declaration of urban area would render
the decree of the civil Court inexecutable."
PARA 8 OF SAT NARAIN SAINI'S CASE
"8. The landlord went up in appeal before the
Supreme Court which affirmed the order of the
High Court. P.N. Bhagwati, J., speaking for the
Court held that it is true that an Executing Court
cannot go behind the decree nor can it question
its legality or correctness. But there is one
exception to this general rule and that is that
where the decree sought to be executed is a
nullity for lack of inherent jurisdiction in the court
passing it, its invalidity could be set up in an
execution proceeding. Where there was lack of
inherent jurisdiction, it went to the root of the
competence of the Court to try the case and a
decree which was nullity was void and could be
declared to be void by any Court in which it was
presented. Its nullity could be set up whenever
and wherever it was sought to be enforced or
relied upon and even at the stage of execution or
even in collateral proceedings. The learned Judge
further held that by reason of the introduction of
the proviso in Section 3 with retrospective effect
the decree for eviction became a nullity and the
Executing Court was justified in declining to
execute it against the respondent. The above
observations are fully applicable to the present
case. Taking into consideration the said
circumstances, I am of the opinion that the decree
in the present case in view of the amendment in
the Act became a nullity and is, therefore
inexecutable.
PARA 6 OF MANI SUBRAT JAIN'S CASE
"6. The expression 'tenant' includes 'a tenant
continuing in possession after the termination of
the tenancy in his favour'. It thus includes, by
express provision, a quondam tenant whose
nexus with the property is continuance in
possession. The fact that a decree or any other
process extinguishes the tenancy under the
general law of real property does not terminate the
status of a tenant under the Act having regard to
the carefully drawn inclusive clause. Even here,
we may mention by way of contrast that Subudh's
case (supra) related to a statute where the
definition in s. 2 (5) of that Act expressly included
"any per son against whom a suit for ejectment is
pending in a court of competent jurisdiction" and
more pertinent to the point specially excluded "a
person against whom a decree or order for
eviction has been made by such a court." We feel
no difficulty in holding that the text, rein forced by
the context, especially s. 13, convincingly includes
ex-tenants against whom decrees or eviction
might have been passed, whether on compromise
or otherwise. The effect of the compromise
decree, in counsel's submission, is that the
tenancy has been terminated. Nobody has a case
that the appellant is not continuously in
possession. The conclusion is inevitable that he
remains a tenant and enjoys immunity under s.
13(1). The execution proceedings must, therefore,
fail because the statutory road-block cannot be
removed. Indeed, an application under the Act
was filed by the landlord-defendant which was
dismissed because the ground required by the Act
was not made out."
No other argument has been addressed on behalf of the
appellant-defendant.
[7] On the other hand, prayer made on behalf of the
appellant-defendant has been vehemently opposed at the instance of
learned counsel representing the respondent, while submitting that
though the factum of demised premises being regulated under the
notification dated 18.01.2019 was factually disputed, yet the rights of
the parties once having crystallized by the Civil Court, must before
coming into force of the aforesaid notification, the same were not to
be defeated and nullified with any subsequent inclusion of the
premises in question in the urban area with the applicability
thereupon under the provisions of the 1952 Act. In this regard,
learned counsel places reliance upon the decisions rendered by the
Hon'ble Apex Court in case of Shri Kishan @ Krishan Kumar
Versus Manoj Kumar, 1998 AIR (Supreme Court) 999.
[8] After hearing learned counsel for the parties and having
gone through the paper-book / records, I am unable to find
substance in the submissions made on behalf of the appellant-
defendant.
[9] In the facts and circumstances of the present case,
concurrent finding of fact has been recorded by the Courts below in
favour of respondent-plaintiff that the relationship of lessee and lessor
in favour of appellant-defendant was terminated at the hands of
respondent-plaintiff vide notice dated 12.12.2012 (Ex. PW-4/C)
issued in terms of Section 108 of the 1882 Act, followed by filing of
suit for possession by way of ejectment, besides claiming mesne
profit. The suit was decreed in favour of respondent-plaintiff on
04.05.2015 and the said judgment and decree was upheld by the
First Appellate Court, vide judgment and decree dated 19.02.2016.
[10] In this view of the matter any subsequent inclusion of the
demised premises making it a part of notification to bring it under the
applicability of the provisions of the 1952 Act, would not, by any
stretch of imagination, render the judgments and decrees passed by
the Courts below as un-executable in view of the law laid down by the
Hon'ble Apex Court in case of Sh. Kishan @ Krishan Kumar
(supra) as well as Kesho Ram & Co.& Ors. Etc. Vs. UOI and
others, reported as (1989 (2) RCR (Rent) 425. Relevant portions of
paragraphs 13 & 18 of Kesho Ram's case (supra) are reproduced
hereunder:-
"13. ........A suit if instituted during the period of
exemption could not be decreed, nor such decree
could be executed after the expiry of five years
period but the last portion of the Notification which
states that Section 13 of the Act shall not apply to
decree of civil courts whether such decree was
passed during the period of exemption or "at any
time thereafter" enlarged the period of exemption
for an indefinite period of time, and it seeks to
amend Section 13 of the Act. We do not find merit
in the submission. As noticed earlier Section 13(1)
imposes a complete ban against the eviction of a
tenant in execution of a decree passed by a civil
court before or after the commencement of the Act
and it further lays down that a tenant in
possession of a building or rented land shall not
be evicted except in accordance with the
provisions of Section 13 or an order made in
pursuance of the provisions of the Act.
SubSection (2) of Section 13 sets out statutory
grounds on which the Controller, an authority
constituted under the Act has power to pass order
of eviction against a tenant. Section 13 takes
away the jurisdiction of civil court to pass a decree
of eviction or execution thereof against a tenant in
respect of a building which is subject to the
provisions of the Act. The impugned Notification
grants immunity to newly con- structed buildings
from the shackles of Section 13 of the Act for a
period of five years. While doing so, the Notifi-
cation has taken care to make the exemption
effective by providing that the exemption shall be
available to the building even if the decree is
passed after the expiry of the period of five years
provided the suit is instituted during the period of
exemption. The emphasis is on the institution of
the suit within the period of exemption of five
years. Once the landlord institutes a suit before
the expiry of the period of exemption, the decree
even if passed after the period of five years will
not be subject to the provisions of Section 13 of
the Act. This is the true meaning of the
Notification. The Notification does not enlarge the
period of exemption instead it safeguards the
rights of the parties which crystalise on the date of
institution of the suit.....
18. In view of the above discussion we hold that
Section 3 as well as the impugned Notification are
valid and the same do not suffer from any
constitutional or legal infirmity. We further hold
that civil court has jurisdiction to pass decree even
after the expiry of period of exemption, in suits
instituted during the period of exemption, and to
execute the same notwithstanding the provisions
of Section 13 of the Act. In the result the civil
appeals, special leave petitions, and the writ
petitions fails and are accordingly dismissed with
costs and all interim orders stand discharged."
The aforesaid decision was even followed by this Court in
the case of Het Ram Vs. Virbhan, reported as 2010 (1) RCR (Civil)
83. Para 11 thereof being relevant is extracted hereunder:-
"11. Possibly, no one can dispute about the aforesaid
propositions of law but the same would not come
to the rescue of the tenant, because in the present
case, admittedly, the provisions of Rent Act were
fully applicable when the landlord filed the
ejectment petition, the Rent Controller passed the
ejectment order against the tenant and the
appellate authority decided the appeal of the
tenant on the basis of compromise. The tenant
accepted the ejectment order and compromised
the matter in appeal. If the provisions of Rent Act
were fully applicable at the relevant point of time
then subsequent change will not, in any way,
affect the rights already accrued to the landlord
particularly when the tenant has accepted the
order of ejectment by entering into compromise
with the landlord. If the argument of learned
counsel for the tenant is accepted then perhaps,
no landlord would ever be able to get possession
of his property."
[11] In such circumstances, when the suit for possession by
way of ejectment qua the demised premises was filed at the instance
of respondent/ landlord for the property/ area in question forming part
of the notification dated 18.01.2019 while bringing it under the
applicability of provisions of 1952 Act and the decree for possession
even been passed on 04.05.2015 and affirmed on 19.02.2016 by the
Courts below i.e. much prior to the date of notification dated
18.01.2019, the same cannot be nullified or made enforceable in law
in the absence thereof being any specific exclusion qua the
jurisdiction vested in the Civil Court.
[12] Moreover, the rights of the parties stood crystallized on
the date of institution of the suit and therefore, the law applicable on
the date of filing of the suit will continue to apply until its final
culmination. Furthermore, there is no specific provision under the
1949 Act which oust the jurisdiction of Civil Court in respect of the
cases validly instituted before the date when the provisions of Rent
Act became applicable qua said area/ premises/ tenancy.
[13] With respect to the law cited on behalf of the appellant/
tenant, in the humble opinion of this Court, the decision passed in
Mani Subrat Jain's case (supra) though rendered under the
provisions of 1949 Act would not govern the rights of the parties as
the same was passed by a Division Bench of the Hon'ble Apex Court;
whereas the decision in case of M/s Kesho Ram & Co. (supra) under
the same Act was rendered by a larger Bench (Three Judges).
Similarly, the decision rendered in Ram Narain's case
(supra) and Sat Narain Saini's case (supra) would not even come to
the rescue of the appellant/ tenant as the decision in M/s Kesho Ram
& Co. was never discussed in Ram Narain's case (supra); whereas
the view taken in Sat Narain's case (supra) has now been reversed
by the Hon'ble Apex Court in M/s Kesho Ram & Co., as such the
same cannot be made applicable.
[14] It may also be noticed here that the possession of the
demised premises has already been handed over to the respondent-
plaintiff on 07.10.2023 in execution of the judgments and decrees
passed by the Courts below.
[15] In view of the aforementioned facts and circumstances,
finding no illegality or perversity with the concurrent findings of the
fact recorded by both the Courts below, the present appeal being
devoid of merits, the same is hereby dismissed.
[16] Pending miscellaneous application(s), if any, shall also
stand disposed off.
September 03, 2024 ( HARKESH MANUJA )
'dk kamra'/sanjay JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
