Judgment:
G.S. Sandhawalia, J.
C.M. No. 5900-CII of 2011
Application filed under Section 151 CPC seeking exemption from filing certified copies of Annexures P-1 to P-21 is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.M. No. 5901-CII of 2011
Application filed under Section 151 CPC for placing on record Annexures P-1 to P-21 is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.R. No. 1387 of 2012
1. The present revision petition is directed against the orders dated 18.10.2011 and 06.12.2011 passed by the Rent Controller, Chandigarh and the appellate authority whereby, the application filed by the petitioner under Order 1 rule 10 read with Section 151 CPC to be impleaded as respondent in the rent petition titled as Rajiv Chanana vs. Krishan Kumar Garg has been dismissed and the said order having been upheld in appeal.
2. The facts of the present case pertain to a dispute regarding plot no. 99, Industrial Area, Phase-I, Chandigarh. The said plot belonged to Charan Dass Nagpal, who died on 17.09.1988 leaving behind a Will dated 18.09.1985 whereby, the plot in question devolved upon his three sons namely Surinder Kumar, Vishva Kant and Sanjiv Kumar. It was alleged that after the death of Charan Dass Nagpal, a family arrangement was entered into on 20.11.1992 where the portions were divided between the three brothers and the portion red vested with Sanjeev Kumar and he entered into an agreement of sale dated 11.06.2003 with the respondent for a sum of Rs. 20 lacs and the area mentioned in the agreement measuring 37'9” x 178' adjoining to plot no. 98, Industrial Area. Respondent no. 1-Rajiv Chanana is the son-in-law of Surinder Kumar Nagpal-petitioner, one of the co-owners of the plot. That before the sale could be executed, a registered Lease Deed dated 08.09.2003 was entered into between Surinder Kumar Nagpal and Krishan Kumar Garg (hereinafter referred to as a tenant), wherein, as co-owner he leased out the first portion of the half main shed towards plot no. 98 including office, toilets and construction of the shed portion measuring approximately 1100 square feet. The lease was for Rs. 14,000 and for a period of 5 years from 01.09.2003 to 31.08.2005 and there was an escalation clause @ 5%.
3. In pursuance of the said agreement, the sale deed was executed on 09.06.2005 by Sanjiv Kumar, the co-owner in favour of respondent. However, the petitioner, who is also one of the co-sharer and respondent who is his son-in-law namely Rajiv Chanana had disputes as the matrimonial alliance went into troubled waters and an FIR was loged on 05.12.2006 by the petitioner Surinder Nagpal and in the said FIR, there was a dispute regarding the plot no. 99 also and there were allegations that Rajiv Chanana had misappropriated the share of the daughter and cheated her paternal uncle.
4. That on 13.10.2005, the present petitioner-Surinder Kumar Nagpal filed a petition under Section 13 of East Punjab Urban Rent Restriction Act, 1949 (for short 'The Act') for ejectment against the tenant on the ground that the rent had not been paid from 01.09.2005. The said eviction petition was resisted by the tenant by saying that there were two other co-owners having 1/3rd share who were necessary parties and Rajiv Chanana had purchased the share of Sanjeev Kumar Nagpal and was claiming 1/3rd share in the entire rent w.e.f. 11.06.2003 i.e. the date of agreement. It was also pleaded by the tenant that the petitioner had already received the rent upto 31.08.2005 and, therefore, the Court may pass appropriate orders so that he could pay the rent of the premises in question. Thereafter, on 09.02.2007, respondent no. 1-Rajiv Chanana filed petition for ejectment of the tenant on the ground that the arrears of rent were there from 08.09.2003 and he was entitled for 1/3rd share of rent from 11.06.2003, the date of agreement. It was also mentioned that in the earlier petition filed by Surinder Kumar Nagpal, Rajiv Chanana had filed an application under Order 1 Rule 10 CPC which had been dismissed and thus the present petition was being filed. The said petition was contested by filing written statement by the tenant on the ground that the premises had been taken on rent vide lease deed dated 08.09.2003 from Surinder Kumar Nagpal and, therefore, Surinder Kumar Nagpal was the owner and landlord qua the respondent-tenant and the respondent was paying rent to Surinder Kumar Nagpal regularly through cheque. That on 22.01.2008, the Rent Controller while noticing that respondent no. 1-Rajiv Chanana was 4 only 1/3rd owner, therefore, he was not entitled to recover the whole of the rent from the respondent assessed rent at `4,600 per month as provisional rent (which was 1/3rd of 14,500) as provisional rent alongwith interest @ 6% + 200 as costs w.e.f. 08.09.2003, which was challenged in this Court in C.R. No. 2323 of 2008. This Court, in order to protect the right of both the parties, modified the order that the tenant would tender rent at `4,600 per month as directed by the Rent Controller but the Rent Controller should frame a preliminary issue as to whether there is a relationship of landlord and tenant between the parties and the release of the arrears of rent to be deposited by the petitioner would depend upon the outcome of the said issue. It was also directed that the tenant may deduct the amount out of the total rent which he has claimed to have paid or is paying to Surinder Kumar Nagpal as allowed or permitted by the Rent Controller. That on 03.11.2006, the following issues were framed:-
"1.Whether there exists relationship of landlord and tenant between petitioner and Respondent no. 1? OPA.
2. Whether the petitioner is entitled to claim arrears of rent w.e.f. 11.6.03? OPA.
3. Whether the petition is without cause of action? OPA
4. Whether the petitioner is not maintainable? OPR
5. Relief."
5. On 03.11.2006, in one another petition filed by Rajiv Chanana against Bawa Stepney (another tenant in the premises) issues were framed and it was held that the said tenant was under no obligation to pay the rent to Rajiv Chanana as there was no relationship of landlord-tenant between Rajiv Chanana and respondent no. 1-Bawa Stepney. Evidence was led by the parties and in the affidavit submitted by way of evidence before the Rent Controller, the present petitioner Surinder Kumar Nagpal alleged that the 1/3rd share which had been purchased was under challenge and status quo had been granted by the civil Court and Rajiv Chanana had no locus standi to file the present petition since there was no relationship of landlord-tenant. Similar affidavit was filed by the tenant and has also been placed on record. That thereafter an application dated 03.08.2011 was filed by petitioner under Order 1 Rule 10 CPC for allowing him to be impleaded as one of the respondents as he was the actual owner and landlord of the tenant. The Sale Deed in favour of the respondent was challenged and it was alleged that there were various tenants in the building and Rajiv Chanana was not the landlord and there was no privity of contract between the parties and in one petition filed by Rajiv Chanana against M/s. Steel Centres, the Rent Controller had dismissed the petition on 11.05.2007. It was also pleaded that in earlier petition for ejectment of the same tenant on the ground of non-payment of rent had been filed against the same tenant and the petition had been dismissed as with drawn on 04.01.2007 after receiving rent and Rajiv Chanana had filed an application to be impleaded as party but the same had been dismissed and the respondent was a tenant by virtue of a lease deed dated 08.09.2003 which was before the execution of the sale Deed and he was in a portion which was not a part and parcel of the sale deed. Accordingly, it was contended that the area with the present tenant did not fall in the portion in the sale deed which existed which was in favour of Rajiv Chanana. It was alleged that the tenant was colluding with Rajiv Chanana wherein earlier he had accepted the relationship with him and accordingly, the application was pressed that he was a necessary party being a co-owner and his rights were affected and would be necessary to be impleaded as a respondent and no prejudice would be caused to Rajiv Chanana if he was impleaded as respondent.
6. The said application was contested by filing reply and by pleading that Rajiv Chanana was the owner of 1/3rd share as per registered Sale Deed dated 09.06.2005 and vide C.R. No. 2323 of 2008 decided on 23.04.2008, this Court had directed the tenant to deposit `4,600 per month towards 1/3rd share which was being claimed by Rajiv Chanana out of the total rent of 14,000. It was also contended that the applicant was being represented through his counsel Sh. Pardeep Bedi and even the other litigations were being pursued by Sh. Pardeep Bedi, Advocate and he had even appeared as a witness for the tenant and cross examined at length on various dates and, therefore, wanted to delay the decision of the Rent petition and wanted to get the proceedings reopened. Accordingly, it was contended that once the applicant is impleaded, he will ask to file written statement and to lead evidence which would amount to reopening the entire case and the present application having been filed at the belated stage in spite of pendency of the rent petition since 09.02.2007 did not entitle the applicant to be impleaded as a party. It was contended that Shri Pardeep Bedi, Advocate was also representing the counsel for the tenant also. The family settlement was held out to be a forged and fabricated document dated 20.11.1992 and that an FIR No. 52 had been lodged under Section 467, 468, 471, 120-B IPC and there was no mention about the wife of Charan Dass though the settlement was between the sons of Charan Dass though she was alive on that day. It was replied that the tenant was in the portion which fell to the share of Sanjiv Kumar Nagpal who had sold the property and he was entitled for the full rent from the respondent-tenant. The Sale Deed having been executed in favour of Rajiv Chanana,the intentions of the applicant had become mala fide as there was a matrimonial dispute between Rajiv Chanana and the daughter of the applicant and, therefore, the application had been filed only to harass Rajiv Chanana. It was admitted that the applicant had filed a petition for ejectment against the tenant in which the application of Rajiv Chanana for becoming a party had been dismissed. Accordingly, it was submitted that the application could not be allowed at this stage and would amount to reopening the case from initial stage and once he had appeared in the petition and made statement and was cross examined and was pursuing the matter himself, he was not entitled for being impleaded. The tenant also filed a short reply wherein he stated that he had no objection for impleadment of Surinder Kumar Nagpal, the present petitioner as he was a tenant under him by virtue of a registered Sale Deed executed between him and the answering respondent. The tenant submitted that he had no interest as to who was declared as landlord and the tenant and as on the day of filing the application, the relationship of landlord and tenant existed between him and the applicant and not between the petitioner Rajiv Chanana. Keeping the said pleadings in mind, the Rent Controller vide order dated 18.10.2011, dismissed the application for being impleaded on the ground that the applicant had already appeared as RW-1 and deposed in favour of the tenant. The applicant was having knowledge about the petition since long back and could have moved an application earlier if he was proper and necessary party to the suit and since Rajiv Chanana has purchased 1/3rd share of Sanjiv Kumar Nagpal and not of the applicant and if the relationship of Rajiv Chanana and the applicant was not proved the applicant would suffer no loss for his act and the proceedings were being delayed as the trial was going to be concluded and the applicant was not proper and necessary party to the ejectment proceedings and accordingly, the application was dismissed.
7. The applicant preferred an appeal before the appellate authority which has been dismissed vide order dated 06.12.2011 on the ground that the Rent Controller had framed an issue with regard to the relationship of landlord and tenant between the parties on 16.07.2008 since the relationship was denied. The issue was framed as a preliminary issue and the question of relationship is to be decided by the Rent Controller. Accordingly, it was held that the applicant may have an independent remedy against the respondent-tenant if there was any relationship of landlord-tenant between them, but the applicant is not a necesssary party to the ejectment proceedings. The appeal was accordingly dismissed. The present revision petition has thus been filed against the said orders whereby the application of the applicant to be impleaded as party/respondent no. 2 has been dismissed.
8. The counsel for the petitioner has argued with vehemence that as per the order dated 23.04.2008 Annexure P-12 passed by this Court in C.R. No. 2323 of 2008, it had been directed that 1/3rd rent should be deposited by the tenant with the Rent Controller who would frame a preliminary issue as to whether or not there exists a relationship of landlord and tenant between the parties. The rent will be then released upon the outcome of the said issue. Vide the said order, it was also directed that if allowed or permitted by the Rent Controller, the tenant will pay the said amount out of the total rent which he has claimed to have paid or is paying to Surinder Kumar Nagpal, the applicant. It is accordingly contended that the applicant is entitled to the rent and the rent agreement was between the tenant and him and his brothers. It is contended that as per the lease deed dated 08.09.2003, the same was between the applicant and the tenant as co-owner and was prior in time to the sale deed in favour of Rajiv Chanana which was 09.06.2005 and therefore, the relationship which exists is between the applicant and the tenant and Rajiv Chanana has no right to seek ejectment or claim arrears of rent and thus he is not necessary and proper party.
9. On the contrary, counsel for the respondent-caveator Rajiv Chanana contended that the applicant had appeared in the witness box and was cross examined on 21.09.2010 and had only leased out the property as co-owner and in an earlier petition filed by him, he had taken the rent from the tenant. It was contended that more than a period of 3-1/2 years has expired since the High Court had ordered on 03.04.2008 to deposit the amount in Court regarding the 1/3rd share of Rajiv Chanana and there was delay on the part of the applicant in filing the application, which would only benefit the tenant and, therefore, there was collusion on behalf of the tenant and the applicant. Reliance was placed upon the judgments of this Court in Vijay Singh vs. Dharam Pal and others, 1989 CCC 398 and Subhash Chander and others vs. Lala Baij Nath Aggarwal and others, 1993 (2) PLR 460 to contend that a third party cannot be impleaded and they could file a regular suit to claim their title. The submission was made that Rajiv Chanana was the master of his ejectment petition and no person could be impleaded against his wishes. Reliance was also placed upon Kamla Devi and others vs. Surinder Kumar and others, 2006 (3) PLR 371.
10. In the present case due to the inter se relationship between the applicants and the contesting respondent-caveator, the relationship having already been noticed that it is dispute between the father-in-law and the son-in-law who have strained relationship as the matrimonial bond between the daughter of the applicant has fallen foul. Admittedly, the property in question which is plot no. 99, Industrial Area, Phase-I, Chandigarh belonged to Charan Dass Nagpal, father of the applicant and devolved upon him and his brothers Sanjiv Kumar and Vishva Kant who all had a share in the property which was agreed to be purchased by the son-in-law of the applicant because at that time, the matrimonial bond was intact. The agreement to sell is dated 11.06.2003 and thereafter the lease deed is dated 08.09.2003 wherein the applicant-Surinder Kumar Nagpal had leased out the property in question to Krishan Kumar Garg, the tenant being the co-owner @ 14,000 per month. The sale deed in favour of Rajiv Chanana is dated 09.06.2005 whereby Rajiv Chanana purchased a share in the property to the extent of 1/3rd share. The relationship of the landlord tenant had already been created prior in period of time vide the rent agreement dated 08.09.2003 wherein the applicant as a co-owner had leased out the property to the tenant-Krishan Kumar Garg (respondent no. 2 herein). It has already been noticed from the sequence of events above that earlier petition had been filed by the applicant wherein he had claimed rent from the tenant and in which Rajiv Chanana had filed an application for being impleaded as a party but the said application had been dismissed. The tenant had also been agitated against the assessment of provisional rent on 22.01.2008 in the present petition filed by Rajiv Chanana whereby `4,600 per month had been assessed as provisional rent. This Court vide order dated 23.04.2008, had directed that the said amount should be deposited in Court and the issue would be decided as a preliminary issue. In pursuance of the orders passed by this Court, the Rent Controller has framed a preliminary issue on 16.07.2008 as to whether there was relationship of landlord and tenant between the parties and put the onus on the tenant. The evidence regarding this aspect is going on. At that point of time, the present applicant was not before this Court not being a party in the petition. His affidavit, which has been filed by way of evidence has been appended which is dated 09.02.2010 and he has admittedly been cross examined on 21.09.2010, as argued by the counsel for the respondent-caveator. The tenant has also filed an affidavit contesting the claim of the relationship of landlord and tenant between him and Rajiv Chanana. Admittedly, even a civil suit is also going on between the parties regarding the ownership issue. That under Section 2(c) of the Act, the landlord need not be the owner of the property in question and can be any person who is entitled to receive the rent. Section 2(c) of the Act is reproduced as under:-
“Section 2(c). 'landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who subjects any building or rented land in the manner hereinafter authorised, and, every person from time to time deriving title under a landlord;"
11. The Hon'ble Supreme Court of India in K.D. Dewan vs. Harbhajan Singh Parihar, 2002 (2) PLR 682 has held that it is not necessary for the landlord to be the owner of the property. Relevant paras of the said judgment read as under:-
"7. A perusal of the provision, quoted above, shows that the following categories of persons fall within the meaning of landlord : (1) any person for the time being entitled to receive rent in respect of any building or rented land; (2) a trustee, guardian, receiver, executor or administrator for any other person; (3) a tenant who sublets any building or rented land in the manner authorised under the Act and (4) every person from time to time deriving title under a landlord. Among these four categories of persons, brought within the meaning of 'landlord', Mr. Sharma sought to derive support from the last category. Even so that category refers to a person who derives his title under a landlord and not under an owner of a premises. For purposes of the said category the transferor of the title referred to therein must fall under any of the categories (1) to (3). To be a landlord within the meaning of clause (c) of section 2 a person need not necessarily be the owner; in a vast majority of case an owner will be a landlord but in many cases a person other than an owner may be as well be a landlord. It may be that in a given case the landlord is also an owner but a landlord under the Act need not be the owner. It may be noted that for purposes of the Act the legislature has made a distinction between an owner of a premises and a landlord. The Act deals with the rights and obligations of a landlord only as defined therein. Ownership of a premises is immaterial for purposes of the Act.
xxx xxx xxx xxx xxx xxx
14. From the above discussion it follows that such a truncated meaning of the term 'landlord' cannot be imported in clause (c) of section 2 of the Act having regard to the width of the language employed therein and there is no other provision in the Act to restrict its meaning for purposes of Section 13(3)(a) thereof to an owner of the premises alone. The appellant has been paying monthly rent of the premises to the respondent from 1976. The respondent is thus the landlord of the premises under the Act and is entitled to seek relief under Section 13(3)(a) of the Act. In this view of the matter, we find no illegality in the order of his High Court under challenge. The appeal is without merit and it is liable to be dismissed."
12. In the present case, admittedly it has been noticed that relationship of landlord tenant has arisen out of the lease agreement which is dated 08.09.2003. The purchase of the property has been subsequently by Rajiv Chanana on 09.06.2005 though there was an agreement to sell in his favour prior in time on 11.06.2003. Accordingly, the relationship of the landlord and tenant has been created between the applicant and the tenant and Rajiv Chanana has purchased the property only subsequently. The tenants are being hounded by the co-owners who are both the father-in-law and the son-in-law and both are claiming to be the landlords/owners of the property and entitled to the rent in question. Admittedly, there are other tenants also in the property in question, reference of which has been made earlier and accordingly, the said issue is being raked up time and again as to who is the landlord and the owner. In such circumstances, the applicant-petitiioner cannot be said to be unnecessary and proper party. The dispute has to be resolved as to the relationship of the landlord tenant for all times to come and, therefore, the dismissing of the application solely on the ground that there is delay is not sustainable. As has been noticed earlier, the tenant had come to this Court against the order of fixing of provisional rent and this Court, in order to ensure that rent should be paid by the tenant, directed that the deposit should be made in Court. The amount of money has to be disbursed to either of the parties and in such circumstances, it would be appropriate if the relationship factor between the tenant and the contesting alleged landlord/owners is firstly sorted out.
13. The ejectment application is on the ground of non-payment and already a direction has been made on 22.01.2008, which has been clarified by this Court on 23.04.2008 that the amount is to be deposited with the Rent Controller. Therefore, no prejudice will be caused to any of the parties even if the proceedings are delayed. Once the relationship of landlord-tenant is established, accordingly appropriate directions can be given as to whom the amount is to go to.
14. The issue of delay is also not very relevant. Admittedly, the order dated 23.04.2008 was between Rajiv Chanana and the tenant and the applicant was not party before this Court. Therefore, the submission that the proceedings are collusive at the hands of the applicant and the tenant and it is for the benefit of the tenant cannot also be accepted, since if the tenant keeps on paying the amount, ejectment cannot be ordered from the premises in question as it is only for the non-payment of the amount. The Hon'ble Supreme Court of India in Savitri Devi vs. District Judge, Gorakhpur, 1999 (2) SCC 577 observed that a person whose presence before the Court is necessary in order to enable the Court effectively and completely adjudicate upon to the settle the issues involved in the suit, then the person should be impleaded and added as a party at any stage since it would lead to avoidance of multiplicity of proceedings. The judgments of Vijay Singh (supra) relied upon are not applicable on the ground that the applicant was setting up title in the demised premises and, therefore, this Court held that the remedy was to file a separate suit. Similarly, in Subhash Chander's case (supra), the L.Rs. of one Mohan Lal were sought to be impleaded as party to the petition for ejectment and this Court held that no person can be impleded as party against his wishes unless the Court comes to the conclusion that the presence of the applicant is necessary for proper disposal of the suit and resolve the controversy therein. In fact, these observations do not support the respondent and favour the view which is being taken by this Court.
15. Similarly, Kamla Devi's case (supra), the impleadment was set aside on the ground that the tenant had atoned in favour of Surinder Kumar, the respondent and supported making payment of rent to them. Thus, keeping in view the above facts and circumstances, this Court has come to the conclusion that the applicant is a necessary party as the lease deed which created relationship of landlord-tenant was executed by him with the tenant being co-owner of the property in question and he is entitled to be impleaded and join the proceedings so that the Rent Controller can come to an effective adjudication as to what is the relationship between parties and the tenant is liable to pay the rent to which one of the said landlords.
16. Resultantly, the impugned orders dated 08.10.2011 and 06.12.2011 passed by the Rent Controller and the appellate authority are set aside. The application filed under Order 1 Rule 10 CPC by the petitioner-applicant is allowed and Rent Controller is directed to implead him as respondent no. 2 in the rent petition, which has been filed by Rajiv Chanana against Sh. Krishan Kumar Garg. The said petition is subject to payment of `10,000 as costs, to be paid to the State Legal Services Authority, Chandigarh.