Rajinder Lal Vs. Gopal Krishan - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1. the challenge in the present revision petition is to the order dated 5.6.2003, passed by the learned appellate authority and the order dated 26.4.2003 passed by the learned rent controller, whereby an order of ejectment was passed against the petitioner on account of failure to tender assessed provisional rent, interest and costs. 5. aggrieved against the order of eviction on account of non-payment of provisional arrears of rent within 15 days, the petitioner filed an appeal but the same was dismissed as it was held that the ejectment order has necessarily to follow on the failure of the tenant to comply with the order of provisional assessment of arrears of rent, interest and costs. in my view, the order of ejectment passed simply on account of failure to deposit arrears of rent, interest and costs within time prescribed, is complete negation of justice. a tenant forcefully raising a plea in his defence stands to lose and suffer for his failure to substantiate his defence. if the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable: - 4. on the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. (6) while exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings. 6 contemplates an opportunity to the tenant to make good the deficiency. 4, 5 and 6, i am of the opinion that the failure to deposit provisional rent assessed will not entail passing of the eviction order. if, however, the final order of the rent controller is in terms of the provisional rent assessed, the tenant is not entitled to any other opportunity to tender rent as he has failed to comply with the order of provisional assessment of rent. it is preposterous to say' that on failure of payment of provisional rent i.hemant gupta, j.1. the challenge in the present revision petition is to the order dated 5.6.2003, passed by the learned appellate authority and the order dated 26.4.2003 passed by the learned rent controller, whereby an order of ejectment was passed against the petitioner on account of failure to tender assessed provisional rent, interest and costs.2. the respondent sought the ejectment of the petitioner, inter alia on the ground of non-payment of rent for the period 1.1.2002 to 31.7.2002 and also that the premises in question are required for bona fide personal use. on 13.11.2002, the learned rent controller has assessed provisional rent at rs. 35ooo/- (rs. 5000/- p.m.), costs rs. 875/- and interest rs. 935/-. it was also ordered that the fact of payment of rent as stated in para no. 3 will be seen at the final disposal of the case.3. the learned rent controller adjourned the case for arguments on the application for leave to defend and also for payment of arrears of rent. the tenant tendered a sum of rs. 15,725/- on 28.11.2002 as arrears of rent for the period 1.6.2002 to 30.11.2002 @ rs. 2400/- per month and an amount of rs. 450/- interest and rs. 875/- as costs. the learned rent controller noticed the stand of the tenant that he has paid rent for the months in question except june, vide cheques @ rs. 2400/- p.m. the tenant made tender and further give a statement that rent for the month of june, 2002, was paid in cash and he is depositing the said rent under protest with right of counter claim in this petition.4. on 22.4.2003, tenant filed an application for recall of the order dated 13.11.2002, inter alia, on the ground that the learned trial court has assessed the rent without making any enquiry in question nor evidence was recorded and even without filing of the written statement. the learned rent controller vide order dated 26.4.2003 found that since the amount assessed has not been paid within the time prescribed, therefore, the petitioner is liable to be ejected from the demised premises. it may be noticed that vide separate order on 26.4.2003, the learned rent controller dismissed another application filed by the petitioner, wherein an objection was raised that the petition under section 13 of the haryana urban (control of rent and eviction) act, 1973 (for short 'the act') for eviction on the ground of non-payment of arrears of rent and the petition under section 13-a of the act to seek eviction for the bona fide personal requirement, cannot be clubbed. the landlord suffered a statement on 22.4.2003 withdrawing the petition under section 13-a of the act seeking ejectment was the arrears of rent, the order of eviction was passed on 26.4.2003 as the petitioner has not paid assessed provisional rent.5. aggrieved against the order of eviction on account of non-payment of provisional arrears of rent within 15 days, the petitioner filed an appeal but the same was dismissed as it was held that the ejectment order has necessarily to follow on the failure of the tenant to comply with the order of provisional assessment of arrears of rent, interest and costs. still, aggrieved, the petitioner is in revision petition.6. after going through the record of the case, i am of the opinion that the order passed by the learned rent controller and the order in appeal suffer from patent illegality and irregularity causing manifest injustice to the petitioner. the findings recorded are not based upon correct appreciation of the ruling of the hon'ble supreme court in rakesh wadhawan v. jagdamba industrial corporation : [2002]3scr468 .7. an order of ejectment has been passed against the petitioner even before a written statement was permitted to be taken on record and without recording any evidence. in my view, the order of ejectment passed simply on account of failure to deposit arrears of rent, interest and costs within time prescribed, is complete negation of justice. in the present case, the landlord has filed petition under sections 13 and 13-a of the act. the tenant has moved an application for grant of leave to contest the petition but even before such application could be taken up for hearing, the order of ejectment has been passed, even as the petition for bona fide requirement was withdrawn.8. the issue involved in the present revision petition is whether on account of nonpayment of provisional rent assessed, in terms of an order assessing such rent, interest and costs, within the time prescribed, the ejectment has to follow, even without giving any opportunity to the tenant to lead evidence in support of his plea in respect of the rent due.9. learned counsel for the respondent has relied upon conclusion no. (4) of the aforesaid judgment to contend that if the tenant fails to comply with the order of assessment of rent, nothing remains to be done and an order of eviction shall follow. after going through the judgment in detail, i am of the opinion that the inference sought to be raised by the learned counsel for the respondent is not the one which can be arrived at from the reading of the entire judgment and reading the other conclusions along with conclusion no. 4.10. in the aforesaid judgment, the question examined by the hon'bie supreme court was as 'what is the amount which the tenant should tender and what is the course to be followed if there be any genuine dispute between the amount claimed and alleged to be due by the landlord and the amount which the tenant admits and alleged to be due.' the court found that some state legislations provide for an interim or provisional order being passed by the court or the rent controller resolving the dispute 'momentarily' by a judicial order with which order the tenant should comply and failing which the tenant may suffer adverse consequences. the court was conscious of the fact that a landlord may claim arrears at a highly inflated rate of rent or may claim rent alleging it to be arrears though the same had already stood paid and for which the landlord chose not to issue receipts for payment, or there may be a bona fide dispute as to the rate at which the rent was paid or is payable. the court found that the manner in which section 13(2)(1) of the east punjab urban rent restriction act, 1949 (the provisions of which are parimateria with the provisions of the haryana urban (control of rent and eviction) act, 1973), have been interpreted in some of the decisions of the court, if allowed to prevail, the consequence would be that the tenant shall have to succumb to the pressure of the landlord by conceding and making the payment or tender as dictated by the landlord along with interest and costs, else he inescapably suffers the risk of eviction. the court observed to the following effect:-yet the manner in which section 13(2)(i) with the proviso has been interpreted by the punjab high court, if allowed to prevail, the consequence would be that the tenants shall have to succumb to the pressure of the landlord by conceding and making the payment or tender as dictated by the landlord along with interest and costs; else he inescapably suffers the risk of eviction. if he raises a dispute in defence even if bona fide, and howsoever believed to be true, he must suffer eviction if on trial for any reason including any fortuitous circumstances, he fails in substantiating his plea though he very much believed, and genuinely, that he would be able to do so. a tenant forcefully raising a plea in his defence stands to lose and suffer for his failure to substantiate his defence. on the contrary, if the landlord has made a false or exaggerated claim, submitted to by the tenant by making a deposit with interest and costs, and the landlord fails in substantiating his claim of arrears, he does not stand to lose anything. thus, there are no holds barred for the landlord while the tenant is subject to strict discipline. this could not have been the intendment of an enactment which as its preamble speaks, is meant to restrict the eviction of tenants from urban premises.11. the said question was sought to be resolved by two means. firstly, by placing meaningful interpretation as would enable the legislative intention being effected and secondly by devising such procedure without altering the structure as would enable the substantial law being meaningfully implemented. after considering various judgments and the provisions of section 114 of the transfer of property act, the court came to the following conclusion:-the question which stares us is: whether in enacting section 13(2)(i) and proviso thereto can we assume that the legislature intended to place the tenants in a situation worse than that is would have been under the principles deducible from section 114 of t.p. act and even if this provision would not have been there? we cannot attribute such misplaced wisdom to the legislature without being uncharitable to it. we are definitely of the opinion that by engrafting section 13(2)(i) and proviso in the body of the act the legislature intended to confer on the tenants a protection, larger and more beneficial than what it would have been if the provision was not enacted.12. the court held that proviso to clause 1 of sub-section 2 of the section 13 must be read as obliging the controller to assess by means of passing an order, the arrears of rent, interest and cost of litigation, which the tenant shall pay and tender on the first date of hearing of the main petition following the date of such assessment by the controller, such order is based on an opinion formed prima facie by perusal of the pleadings and such order 'shall have to give way' to a final order to be made on further enquiry to be held later in the event of there being dispute between the parties calling for such determination. the court opined to the following effect:-what follows from the above said discussion is that the proviso to clause (i) of sub-section (2) of section 113 must be read as obliging the controller to assess, by means of passing an order, the arrears of rent, the interest and the cost of the litigation - all the three which the tenant shall pay or tender on the first date hearing of the main petition following the date of such assessment by controller. such order based on an opinion formed prima facie by perusal of the pleadings and such other material as may be available before the controller on that day would be in interim or provisional order which shall have to give way to a final order to be made on further enquiry to be held later in the event of there being a dispute between the parties calling for such determination.13. the hon'ble supreme court while summarising held that it will be for the tenant to pay or tender the amount provisionally assessed by the controller on the first date of hearing of application of ejectment. on compliance, the controller has to proceed to adjudicate upon the controversy raised for decision by a reference to the pleadings of the parties and by holding a summary enquiry for the purpose and 'such adjudication shall be provisional and subject to later final adjudication'. the court has foreseen three situations which may arise i.e. (i) the rent ultimately found to be due and payable was the same as under the provisional order; (ii) is less than what was determined by the provisional order; or (iii) more than what is held to be due and payable by the provisional order. it was held that in first situation, the proceedings would be terminated. in the second, the rent controller may direct the amount deposited in excess by the tenant to be refunded to him and in the third situation, the tenant should be provided one opportunity and a reasonable time for depositing the amount of deficit failing which, he shall be liable to be evicted. the consequences of the tenant not depositing the rent assessed provisionally, was not the issue arising in the said case.14. the rent controller can pass an order of eviction only after giving the tenant a reasonable opportunity of showing cause against the application. the relevant provisions of section 13(1) and (2) of the haryana urban (control of rent and eviction) act, 1973 read as under:-eviction of tenants:- (1) a tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section.(2) a landlord who seeks to evict his tenant shall apply to the controller, for direction in that behalf. if the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-(i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable:provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the controller, at eight per centum per annum on such arrears together with such costs of the application, if any, as may be allowed by the controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid;provided further that the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately preceding the date of application under the provisions of this act.15. if the interpretation sought to be raised by the respondent on the basis of the reading of the judgment of the hon'ble supreme court is to be accepted, that will negate the grant of reasonable opportunity contemplated to the tenant in terms of section 13(2) of the act. without any written statement, document or evidence, an order of ejectment would be passed against the tenant merely because an ad-interim order has not been complied with. the said interpretation would in fact mean the interim order to be the final order itself. the background in which the hon'ble supreme court has passed the order, leave no manner of doubt that it wanted to provide protection to the tenant from eviction on account of non-payment of arrears of rent, if there is a bona fide' dispute as the tenant is not entitled to any other opportunity after the determination of the said lis. the judgment contemplates providing protection to the tenant against the unscrupulous landlords.16. the conclusion no. 4 as drawn by the hon'ble supreme court cannot be read in isolation. the same has to be read in view of the discussion in the preceding paragraphs and in conjunction with the conclusion nos. 5 and 6. conclusion nos. 4, 5 and 6 read as under:-4. on the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. if the tenant makes compliance, the inquiry1 shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the controller.(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 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.(6) while exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings.17. the supreme court has provided another opportunity to the tenant to tender arrears of rent after determination of question relating to rent with a view to avoid hardship to the tenant. the conclusion no. 4 to the effect that nothing remains to be done and order of eviction shall follow has to be interpreted keeping in view the provisions of section 13(2) of the act, which contemplates that an order of eviction can be passed after giving reasonable opportunity of show cause against the application. still further, conclusion no. 5, contemplated that if the amount deposited by the tenant is short or deficient, the rent controller may pass a conditional order directing the tenant to place landlord in possession of the premises qua the rent provisionally assessed by the rent controller. still further conclusion no. 6 contemplates an opportunity to the tenant to make good the deficiency.18. after harmoniously construing conclusion nos. 4, 5 and 6, i am of the opinion that the failure to deposit provisional rent assessed will not entail passing of the eviction order. the eviction order can be passed only after conclusion of the trial after giving opportunities or hearing to the parties as required under section 13(2) of the act. if, however, the final order of the rent controller is in terms of the provisional rent assessed, the tenant is not entitled to any other opportunity to tender rent as he has failed to comply with the order of provisional assessment of rent. but in case, in the final order passed by the rent controller, rent determined is less than the order of provisional assessment of rent, the tenant would be entitled to another opportunity to make up the deficiency in respect of such arrears of rent. however, if the amount tendered is in excess, the tenant is entitled to refund. the above conclusion alone would be in tune with the principles of law laid down by the hon'ble supreme court. it is preposterous to say' that on failure of payment of provisional rent i.e. ad-interim order, the eviction order shall follow without giving a reasonable opportunity to the tenant to controvert the stand of the landlord on the basis of evidence led that such provisional rent was not correctly assessed.19. therefore, the order of eviction passed by the learned rent controller and affirmed by the learned appellate authority without giving any opportunity to contest the petition by filing written statement and to lead evidence cannot be sustained.20. consequently, impugned orders are set aside. the matter is remanded to the learned rent controller to decide the petition for eviction on merits after providing opportunities to the tenant to file reply and after granting opportunities to lead evidence on the issues arising out of the pleadings of the parties.21. civil revision stands allowed in the above terms.