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Judgment
Arun Bhansali, J.—This writ petition has been filed by the petitioners aggrieved against order dated 18.12.2010 passed by Appellate Rent Tribunal, Sri Ganganagar, whereby, the appeal filed by the appellants has been dismissed and the order passed by the Rent Tribunal, Sri Ganganagar dated 14.02.2008 directing issuance of recovery certificate has been upheld.
The facts in brief may be noticed thus : the landlord -Navneet Kumar filed petition for eviction of the petitioners-tenants from the shop situated at Purani Dhan Mandi, Sri Ganganagar and for revision of rent; the eviction was sought on the ground of subletting.
The petitioners filed reply to the petition for eviction and denied the averments made in the petition; the allegations regarding subletting were denied; in the additional pleas the petitioners raised following plea:-
A replication was filed by the landlord reiterating the allegation of subletting; in the replication it was indicated that as the tenant was paying rent of the premises to the landlord-applicant, therefore, there is relationship of landlord and tenant between the parties, which was accepted by the tenant in the previous suit; the tenant has denied the title of the landlord and, therefore, the landlord has become entitled to eviction on the ground of denial of title as well.
The Tribunal framed issues pertaining to subletting and revision of rent; whereafter, the issues were amended and issues pertaining to denial of title and certain other objections raised by the tenant were framed.
After affidavits in evidence were filed and the deponents were cross-examined, the Rent Tribunal by its judgment dated 14.02.2008 decided the issue pertaining to the subletting against the landlord; the issue pertaining to revision of rent was decided in favour of the landlord.
While dealing with the issue pertaining to the denial of title, the Rent Tribunal came to the conclusion that the denial of title by the tenant was mala fide; the rent receipts produced by him have been issued by the landlord and in the earlier litigation he had accepted the landlord tenant relationship and has denied the relationship in the present petition and such denial amounts to denial of title and on that count the landlord was entitled to decree for eviction and ultimately, ordered issuance of recovery certificate.
Feeling aggrieved, the petitioner filed appeal before the Appellate Rent Tribunal and the landlord filed cross-objections.
During the pendency of the appeal, the petitioners filed application under Order XLI, Rule 27 CPC for producing the notice dated 21.04.1998 said to have been issued by brother of the landlord and prayed that the same may be taken on record.
The Appellate Rent Tribunal fixed the application for arguments on few dates and whereafter heard the appeal itself and by its judgment dated 18.12.2010 dismissed the appeal preferred by the tenant and accepted the cross-objections filed by the landlord, while finding on denial of title by the Rent Tribunal was upheld, the finding on subletting recorded by the Rent Tribunal was reversed and it was held that the tenant has sublet the premises and cross-objections pertaining to revision of rent was also accepted.
During the pendency of the present writ petition, the landlord expired and his legal representatives were taken on record.
It is submitted by learned counsel for the petitioners that the Appellate Rent Tribunal was not justified in dismissing the appeal filed by the petitioners and accepting the cross-objections filed by the respondent; it was submitted that application filed by the petitioners under Order XLI, Rule 27 CPC was neither decided during the pendency of the appeal nor it was decided while deciding the appeal itself and, therefore, on the said count alone the judgment passed by the Appellate Rent Tribunal deserves to be set aside.
It was further submitted that both the Tribunals fell in error in coming to the conclusion that the petitioners have denied the title of the landlord; it was submitted that the petitioners had received a notice from brother of Navneet Kumar, inter alia, seeking him (tenant) not to pay the rent to Navneet Kumar and, therefore, when the present petition seeking eviction was filed, the petitioners to safeguard their interest took the plea that on the said count the petition was liable to be dismissed; it was submitted that in fact the petitioners have not denied the title, inasmuch as, they have continued to pay the rent to Navneet Kumar and the said rent has been accepted by him and mere averment in the written statement cannot be termed as denial of title; no plea was raised in the original petition and, therefore, both the Tribunals were not justified in coming to the conclusion that the petitioners have denied the title and were liable for eviction on that count; it was further submitted that the Appellate Rent Tribunal was not justified in reversing the finding on the issue of subletting recorded by the Rent Tribunal, inasmuch as, after thoroughly analyzing the evidence available on record, the Rent Tribunal recorded the finding that no case for subletting was made out, however, the Appellate Rent Tribunal in a very cursory manner has reversed the said finding merely based on its perception that the possession of the shop has been handed over by Karam Chand to Jagdeep and on that count the order passed by the Appellate Rent Tribunal deserves to be set aside.
Reliance was placed on Sanjiv Goel v. Avtar S. Sandhu : (2006) 9 SCC 748, Jatinder Singh and Anr. v. Mehar Singh and Ors. : 2008 DNJ (SC) 915 and Jagan Nath (Deceased) through Lrs. Vs. Chander Bhan and Others, AIR 1988 SC 1362 : (1988) 2 JT 441 : (1988) 1 SCALE 1079 : (1988) 3 SCC 57 : (1988) 1 SCR 325 Supp : (1988) 2 UJ 267 .
Learned counsel for the respondent-landlord vehemently opposed the submissions made by learned counsel for the petitioners; it was submitted that both the Tribunals have concurrently found that the petitioners have denied the title of the respondent-landlord and the said concurrent findings of fact does not call for any interference under Article 227 of the Constitution of India; it was submitted that no prejudice has been caused to the petitioners by non decision of the application under Order XLI, Rule 27 CPC and unless a prejudice in this regard is shown merely because application was not specifically decided cannot be a ground to interfere with the orders passed by the Appellate Rent Tribunal; it was further submitted that the denial of title by the petitioners is writ large on the record of the case and the Tribunal was therefore justified in deciding the said issue based on the material available on record and no exception can be taken to the said finding; merely because the petitioners have been paying rent to the landlord cannot be a ground to came to the conclusion that the title has not been denied in view of specific averment made in the reply before the Rent Tribunal, which aspect is sufficient for the Court coming to the conclusion that title has been denied; the subletting of the premises was also clear, inasmuch as, the shop in question was let out to the firm having two partners Pritam Singh and Karam Chand; while Pritam Singh left the country and whereafter Karam Chand continued the firm as his proprietor, however, when rent for the period 01.04.2002 to 30.06.2002 was paid by Jagdeep by cheque indicating himself as proprietor of the firm, which clearly indicated that Karam Chand, who was tenant in the shop has handed over the possession of the shop and business to Jagdeep who is the proprietor without permission from the landlord, which clearly amounts to subletting and, therefore, the Appellate Rent Tribunal was justified in reversing the finding recorded by the Rent Tribunal.
Reliance was placed on Sohan Singh Vs. Gurmej Singh and Others , Smt. Myadi through L.Rs. Vs. Smt. Ratni through L.Rs., (2010) 1 RLW 500 : (2010) 1 WLN 291 and Keshar Bai Vs. Chhunulal, (2014) 1 AD 409 : AIR 2014 SC 1394 : (2014) AIRSCW 960 : (2014) 1 JT 379 : (2014) 1 SCALE 170 .
I have considered the rival submissions and have perused the material placed on record.
As noticed hereinbefore, the petition for eviction before the Rent Tribunal was filed on the ground of subletting only; specific averments were made that after death of Guljari Lal father of Navneet Kumar on 30.09.1997, the rent of the premises was being paid to Navneet Kumar till 31.03.2002 by Karam Chand and whereafter the rent was deposited till July, 2003 with the Court, whereafter, no rent was paid and after issuance of notice, the tenant deposited rent of five months on 08.01.2004 in the bank account of Navneet Kumar.
In the reply the averments made regarding the payment of rent to Navneet Kumar were not denied; however, in para 17 of the reply (quoted hereinbefore) a specific additional plea was raised that after death of Guljari Lal, the petitioner Navneet Kumar by misrepresentation and wrongly claiming himself as landlord started accepting the rent, however, brother of Navneet on 08.06.2003 informed Karam Chand that he (brother of Navneet Kumar) was the owner of the shop and not Navneet Kumar; whereafter on 10.08.2003 the brother of Navneet Kumar came to the shop and claimed the rent and, therefore, Navneet Kumar was not owner of the shop; there was no landlord tenant relationship between the parties and Navneet Kumar has no right to file the application against the tenant and on that count the proceedings were liable to be dismissed.
The provision of Section 9(f) of the Rent Control Act, 2001 (''the Act'') provides as under:-
"(f) the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or"
The provision provides that if the tenant renounces his character as tenant or deny the title of the landlord and the landlord does not waive his right or condone the conduct of the tenant, the tenant is liable to be evicted; the renouncing of character can be either by denying the character as tenant or refusing to accept the character as landlord.
In the present case, as quoted and noticed hereinbefore, the denial by the petitioners herein regarding the character of Navneet Kumar as landlord is as categorical as the same could be and a specific averment has been made denying the title of Navneet Kumar qua the suit property.
Division Bench of this Court in Lallu Narayan v. Ratan Chand Lunia : 1989 (1) RLR 475 on reference laid down that a landlord can seek eviction of the tenant on the ground mentioned in section 13(i) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which provision is pari materia to Section 9(f) of the Act even in absence of specific pleading and issue based on the plea taken by the defendant in the written statement.
Similarly in Sheo Narain alis Saon Vs. Janki Prasad (dead) through L.Rs. Radhey Shyam and Others, AIR 1995 Raj 87 : (1994) 2 WLC 723 : (1994) 2 WLN 363 the law laid down in the case of Lallu Narayan (supra) was reiterated and it was held that even if there was no plea in the plaint and no specific issue was framed on the point of denial of title, still the Court was justified in passing a decree of eviction on the ground of denial of title.
The law laid down by this Court on the issue of denial of title based on pleadings in the written statement has been that even in absence of any pleading or issue, a decree for eviction can be granted on the ground of denial of title, however, in the present case landlord by way of replication specially raised the issue of denial of title, whereafter, issues in this regard was also framed by the Rent Tribunal and both the Rent Tribunal and the Appellate Rent Tribunal concurrently found that the denial made by the tenant after having paid rent to the landlord for the period 1997 to 2003 and having admitted the relationship in the previous litigation, was not bona fide, the finding does not call for any interference by this Court under its extra ordinary jurisdiction.
So far as the ground raised by counsel for the petitioners under Order XLI, Rule 27 CPC is concerned, it would be noticed that in the additional plea raised by the petitioners, the petitioners made reference of having received a telephone from brother of Navneet Kumar on 08.06.2003 and visit by him on 10.08.2003 to the shop claiming himself to be the landlord of the premises; however, by way of application under Order XLI, Rule 27 CPC the petitioners wanted to place on record a notice dated 21.04.1998 said to have been given by brother of Navneet Kumar claiming himself to be the landlord; the said notice, which was claimed to have been received by the petitioners from Ashwani Kumar brother of Navneet Kumar, had no reference in the reply and has not even been taken as a basis for denial of title and specific reference has been made to the events dated 08.06.2003 and 10.08.2003 only for the said purpose and, therefore, the so called notice which was sought to be relied on by the petitioners is of no consequence; no explanation has been given in the application as to why if such a notice was received way back in the year 1998, the petitioner continued to pay the rent till the year 2003 and no reference to such a notice was made in the reply before the Rent Tribunal. The standard plea of finding the document which cleaning cannot be accepted.
In that view of the matter, even if, the application under Order XLI, Rule 27 CPC had remained undecided, the same has not caused any prejudice whatsoever to the petitioners.
The Punjab and Haryana High Court in the case of Sohan Singh (supra) held that in case, on examining the merit of the application under Order XLI, Rule 27 CPC the Court came to the conclusion that no prejudice was caused to the petitioners by not deciding the application, the matter did not merit any remand on that count.
Hon''ble Supreme Court in the case of Sanjiv Goel (supra) came to the conclusion that non-disposal of application led to miscarriage of justice and on that count ordered for remand and in case of Jatinder Singh (supra) while deciding the appeal on noticing that the application under Order XLI, Rule 27 CPC was not decided by the second appellate court, the matter was remanded back.
The judgments cited by learned counsel for the petitioners as noticed above, did not lay down as a rule that irrespective of nature of application under Order XLI, Rule 27 CPC in case such an application is not decided the matter has to be remanded back to the first appellate court.
In view of the finding that non-disposal of application under Order XLI, Rule 27 CPC in the facts and circumstances of the present case has not caused any prejudice to the petitioners, no interference is called for on the said count also.
So far as the ground pertaining to subletting is concerned, the Rent Tribunal while thoroughly examining the evidence available on record came to the following conclusion:-
However, the Appellate Rent Tribunal in a wholly cursory manner without even discussing the evidence available on record and meeting with the findings recorded by the Rent Tribunal merely based on its conclusion that a tenant is not entitled to hand over the tenanted premises from generation to generation and without coming to the conclusion that Karam Chand has parted with the possession of the suit shop to Jagdeep and as factually Karam Chand continues to be in possession of the shop and bills Exhibits-A/6 to A/12 in this regard were produced, the reversal of finding by the Appellate Rent Tribunal on the ground of subletting cannot be sustained and the same is, therefore, set aside.
Hon''ble Supreme Court in the case of Jagan Nath (supra) had come to the conclusion that even though the tenant had retired from the business and his sons have been looking after the business it cannot be said that the tenant has divested himself of the legal right to be in possession and it cannot be said the tenant has parted with possession.
So far as the order of the Appellate Rent Tribunal on revision of rent is concerned, no arguments were advanced by counsel for the petitioners.
In view of the above discussion, though the finding of subletting recorded by the first appellate court stands reversed, the concurrent finding recorded by both the Tribunals below regarding the denial of title of the landlord by the petitioners does not call for any interference and, in view thereof, the order for recovery of possession passed by the Rent Tribunal as upheld by the Appellate Rent Tribunal, does not call for any interference and the writ petition filed by the petitioners having no substance is, therefore, dismissed.