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Pradeep K Khatana

C.R. No. 4312 of 2011 (O&M) Smt. Sushma ... Petitioner Versus Sat Paul Jindal ... Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. R.K.Bamal , Advocate, (for the petitioner in C.R.No.2703 of 2011) (for the respondent in C.R.No.4312 of 2011) Mr. Amarjit Markan, Advocate, (for the respondent in C.R.No.2703 of 2011) (for the petitioner in C.R.No.4312 of 2011) Rakesh Kumar Garg, J (oral) This judgment shall dispose of two civil revisions i.e. Civil Revision No. 2703 of 2011 and Civil Revision N.4213 of 2011, as the same have arisen out of the same ejectment order between the parties.

As per the averments, Smt. Sushma W/o Raj Kumar (hereinafter called 'landlady') filed eviction petition against the petitioner Sh. Sat Paul Jindal (hereinafter called 'tenant') submitting that he had taken the first floor of House No. 537, Sector 7, Panchkula (hereinafter referred to as the demised premises) on rent from its previous owner @`6000/- per month along with yearly increase of 5%. The landlady had purchased the demised premises vide a registered sale deed dated 22.11.2010. Since the tenant was in arrears of rent w.e.f 1.8.2008, rent application No.142 of 2011 before the Rent Controller, Panchkula, claiming his eviction was filed. The petitioner- tenant filed written statement and submitted that the house in question was purchased by landlady by way of sale deed dated 22.11.2010 and there was no assignment of arrears of rent in her favour prior to the date of sale deed and moreover the earlier landlord has already received the entire arrears of rent and had also executed an oral agreement of sale with him.

On 28.3.2011 the following statement was made by learned counsel appearing on behalf of tenant before the Rent Controller:-

"Statement of Shri R.K.Bamal, Advocate, for the respondent.

Stated that rent upto the month of November has already been paid to the previous owner Shri Gulwant Singh and Harbhajan Singh and apart from that the respondent has paid Rs.5 lacs as earnest money to the owners. The petitioner has purchased the property vide sale deed dated 22.11.2010 and there is no assignment of arrears of rent as claimed by the petitioner in her favour. As per settled law if there is no assignment of arrears of rent the petitioner cannot claim the arrears of rent before he/she become the owner of the rented. The respondent is ready to pay the rent with effect from 22.11.2010 to the filing of the petition at the rate of Rs.6000/- per month.

Sd/-

ROAC RC/28/3/2011"

The Rent Controller made provisional assessment of rent as under:-

" Provisional assessment of rent Period from 1.2.2008 to 31.3.2011 Rs. 2,28,000/- @ Rs.6000/- per month Interest 8% Rs.0,29,640/- Cost Rs.0,01,100/- Sd/- R.C/PKL"

The case was adjourned for 29.3.2011 by passing the following order and for making payment of arrears of rent as per the provisional assessment as aforesaid :-

"Present:- Shri Amit Singla, Advocate, for the petitioner. Shri Ramesh Kumar Bamal, Advocate for the respondent.

Today the case was fixed for assessment of rent and filing for written statement. Assessment of rent made and statement of the counsel for the respondent recorded. Now to come up for 29.3.2011 for tender of rent. Written statement also filed. Copies given.

ROAC RC/28.3.2011"

On 29.3.2011, the learned counsel on behalf of the tenant appeared before the Rent Controller and made the following statement:-

"Statement of Shri Ramesh Kumar Bamal, Advocate, for the respondent.

Stated that Rs.27350/- w.e.f.22.11.2010 to 31.3.2011 @Rs.6000/- per month for Rs.25800/-, interest Rs.450/-, cost Rs.1100/-, total Rs.27350/- ready to pay. Be given to the petitioner.

ROAC RC/29/3/2011"

The said tender was accepted by the learned counsel appearing for the landlord under protest by making the following statement:-

"Statement Shri Amit Singla Advocate, for the petitioner Stated that tender amount is short and I accept the same under protest. The respondent has not complied the provisional assessment of rent dated 28.3.2011. The respondent be evicted.

ROAC RC/29.3.2011"

Thereafter, on 29.3.2011 itself tenant moved an application before the Rent Controller making the following prayer:-

"It is, therefore, respectfully prayed that in view of the settled law and facts stated above an appropriate assessment order is required to be passed quantifying the arrears of rent and the interest and an appropriate opportunity to pay the amount be granted to the respondent, in the interest of justice and to comply with the judgment in Rakesh Wadhawan case."

The aforesaid application for re-assessment of the amount of arrears of rent and for granting an opportunity to pay that amount was dismissed by the Rent Controller vide impugned order dated 20.4.2011 by passing the following order:-

"11. In view of the above discussion and after careful perusal of the case file, this Court is of the considered opinion after taking into the consideration of the pleadings of the parties as well as after hearing the brief arguments of the learned counsel for the parties, the order of provisional assessment of rent was made on 28.3.2011. In the application itself, the learned applicant has stated that the Court assessed the cost as Rs.1100/- and rate of rent as Rs.6,000/- per month. When these things were admittedly assessed by the Court, then it does not lie in the mouth of the learned counsel for the respondent that the assessment was made as per directions of the learned counsel for the petitioner, that too, by the Reader of the Court.

12. If the assessment would have been made as per directions of the learned counsel for the petitioner, then certainly, the rent would not have been assessed at the rate of Rs.6,000/- per month as is the claim of the respondent in the written statement. So far as the period of assessment is concerned, the period has been taken, which was within limitation only. If the petitioner was to dictate, then he would have dictated the rent w.e.f. February, 2007 which as per the version of the petitioner is the period from which the respondent has not made the payment of the rent. It is not the case of the respondent or learned applicant that the interest has wrongly been calculated. In these circumstances, the rulings as relied upon by the learned applicant have no applicability on the facts and circumstances of the present case.

13. At the time of assessment of the rent provisionally also, it was argued that there is no assignment of the rent in favour of the petitioner by the vendor i.e. The previous landlord, but it was argued on behalf of the petitioner that such an assignment shall be proved during the course of evidence. In these circumstances, the assessment of the rent provisionally was made in presence of the learned counsel for the respondent, but as he was not satisfied, he pressed for recording his statement, which was also recorded on the same page, below the order of provisional assessment of rent. So far as the adjournment of the case is concerned, it was adjourned on the next date of hearing because the respondent had made it very clear that he will make the payment of the rent only' for the period after registration of the sale deed in favour of the petitioner. It was on the next day i.e. 29.3.2011 that the present application was filed in which even wrong facts have been mentioned. The application is for quantifying the provisional assessed rent and the rent which was assessed provisionally was quantified on 28.3.2011 itself.

14. If there was any grievance against this order of provisional assessment of rent, then it was the duty of the respondent to approach the higher forum against the assessment order. In these circumstances, finding no merit in the application of the learned counsel for respondent, the same stands dismissed. However, the respondent is again given an opportunity to make the payment of the provisionally assessed rent, failing which the Court shall be constrained to pass the ejectment order against him in view of the law laid down by the Hon'ble Supreme Court of India in Rakesh Wadhawan case (Supra). However, no order as to costs.

15. Still further, the expressions expressed herein above shall have no bearings on the merits of the case."

Challenging the orders dated 28.3.2011 and 20.4.2011 the tenant has approached this Court by filing the Civil Revision No. 2703 of 2011. The landlord has also filed C.R.No.4312 of 2011 challenging the order dated 20.4.2011 submitting that Rent Controller has no jurisdiction to extend the time or grant further opportunity to the tenant for payment of provisionally assessed rent and if the provisional rent is not paid by the stipulated date the eviction order has to follow. Therefore, in the present case to that extent the order is wrong. Another fact which needs to be mentioned in these revision petitions is that the petitioner has not made the payment of provisional assessment of rent till date.

The only submission made on behalf of the tenant before this Court by the learned counsel is that the landlord was not entitled to claim the rent for the period prior to the execution of sale deed dated 22.11.2010 in her favour as there was no assignment of arrears of rent by the previous owner and therefore, the provisional assessment order of rent dated 28.3.2011 and the order dated 20.4.2011 quantifying the provisional rent and interest and rejecting the application for re-assessment of provisional rent cannot be sustained. Learned counsel for the tenant has relied upon a Division Bench of this Court in case of Hari Krishan Vs. Krishna Mohini 1990(2) Rent Control Reporter 643, Bijender Kumar Vs. Kulbhushan Kapoor, 2008(1) RCR (Rent) 109 and judgment of the Apex Court in the case of Sheikh Noor Vs. Sheikh G.S.Ibrahim, 2003 AIR (SC) 4163 to support his plea that if there is no assignment in favour of subsequent vendee he cannot recover the arrears of rent.

However, Sh.Amarjit Markan, learned Advocate appearing on behalf of the landlord has vehemently argued that the question, "whether the landlord can recover the arrears of rent as claimed by him prior to date of registration of sale deed in her favour" can be decided only by leading evidence and producing documents at a later stage and thus, the order of provisional assessment cannot be found fault with on this ground, at this stage. As in case the plea is found in favour of the tenant, any amount paid in excess at the time of provisional assessment is liable to be adjusted in payment of future rent. Sh. Markan has further argued that the Rent Controller has no jurisdiction to extend the time for tendering of provisionally assessed rent. As per the settled law, the tenant is required to tender the provisionally assessed rent on the date fixed by the Rent Controller. The learned counsel has relied upon a judgment of this Court dated 17.5.2011 passed in C.R. No. 8392 of 2010 titled Joginder Singh Chatha Vs. Ajit Singh, Sudhir Kumar Vs. Kuldip Singh Malhotra 2010(4) PLR 655 and Rajan alias Raj Kumar Vs. Rakesh Kumar 2010(2) PLR 201 and the judgment of the Hon'ble Apex Court in the case of Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corporation 2002(2) PLR 370 (SC) and has contended that in case of failure in tendering the provisionally assessed rent by the tenant on the stipulated dated, the consequential order that has to be passed by the learned Rent Controller is of eviction and not of extension of time. On the basis of the aforesaid submission learned counsel for the landlord has submitted that the order dated 20.4.2011 passed by the Rent Controller to the extent of granting further opportunity to the tenant to pay arrears of rent as per the provisional assessment is not legally tenable and to that extent the aforesaid order is liable to be set aside.

However, Sh.R.K.Bamal, learned Advocate appearing on behalf of the tenant has relied upon Sanjay Sharma & another Vs. Ajmer Singh and another reported in 2007(1) Rent Control Reporter 579 to contend that the Rent controller can review its own order fixing provisional rent and can re-fix the provisional rent when certain other material brought on record subsequently.

I have heard learned counsel for the parties and have perused the impugned orders and other documents as placed on record of this revision petition.

There is no dispute with the proposition of law to the effect that a subsequent vendee cannot recover the arrears of rent if there is no assignment in his favour. But it is also settled law that in a case where the tenant defaults in making the rent as per the provisional assessment upto the stipulated date, he is liable to be evicted and is not entitled to extension of time or an opportunity to pay the arrears of rent so assessed. It is again well settled that in the absence of specific provision of review the statutory Authority cannot review its own orders. It may also be noticed that under the Rent Act Statutory Authority has no power to review its own order.

Keeping in view the aforesaid settled proposition of law, let us examine the facts of the present controversy and the application of law in such circumstances.

As far as the argument raised on behalf of the tenant in these revision petitions to the effect that he was not liable to pay the rent prior to the date of execution of the sale deed in favour of the landlady is concerned, the said question can be decided only after taking the evidence at the time of final determination between the parties. It has come on record that there is a writing in favour of the landlady vide which the earlier land-owner has assigned the right to recover the arrears of rent from the tenant as claimed in the petition. Thus, the said question can be determined only at an appropriate stage and not at the stage of making payment of the provisionally assessed rent upto the stipulated dated.

Admittedly, the provisional rent was assessed by the Rent Controller on 28.3.2011 and the tenant was directed to make the payment by 29.3.2011. The aforesaid order of provisional assessment was never challenged by the tenant within the statutory period as provided and in this view of the matter since the tenant had committed the default by not paying the provisionally assessed rent upto the stipulated date, the Rent Controller had no jurisdiction to extend the time for tendering of provisionally assessed rent. If there is a fault on the part of the tenant, the eviction order has to follow, the order dated 22.4.2011 granting opportunity to the tenant to make the payment of provisionally assessed rent cannot be sustained and is liable to be quashed, to that extent.

At this stage, it is also relevant to refer to the judgment of this Court in Sanjay Verma's case (Supra) wherein this Court has observed that the Rent Controller can re-fix the provisional rent when certain other material brought on record subsequently though the Rent Controller has no power to review its order. The reliance of the learned counsel for the petitioner on the aforesaid judgment is misplaced as in the said judgment this Court has clearly observed that in view of Rakesh Wadhawan's case, the rights of the parties are to be protected at the time of final determination of rent and the same is to be adjusted finally in the final adjudication.

Sh. R.K.Bamal, learned counsel appearing on behalf of the petitioner, has further relied upon a judgment of this Court passed on 12.11.2010, in C.R.No.7374 of 2010 titled as Lamber Singh and another Vs. Saurav Thakur against which S.L.P. No. 3907 of 2011, has already been dismissed by the Hon'ble Supreme Court, to contend that if mistake has been committed or error has crept in the order of the learned Rent Controller by not specifying the exect amount, the tenant cannot be made to suffer and furthermore even if it is assumed that error in calculation is on the part of the tenant, trial of such a party cannot be fore-closed for correcting such an error. The afore-said judgment referred to by learned counsel for the petitioner is not applicable in the facts and circumstances of the present case. In the aforesaid judgment while calculating the, rent the error has crept in, as one years rent was skipped over and on the application filed by the tenant such an error was corrected. In the present case, there is no such error in the quantification of provisional assessment of rent made on 28.3.2011. Specific dispute has been made out by the petitioner-tenant in his application for re-assessment of the provisional rent saying he was not liable to pay for the period prior to the date of registration of the sale deed in favour of the respondent-landlord as there was no assignment of rent for the previous period in his favour. The aforesaid defence taken by the petitioner cannot be decided at the time of making assessment of the provisional rent and the same can be done after leading evidence at the time of final adjudication and at that point of time the Rent Controller is to pass the order in accordance with the principles laid down by the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra). However, at this stage the argument that Rent Controller has the power to re-assess the provisional rent by giving a finding as to whether the respondent-landlord was entitled for the rent to the period privous to the date of sale of registration in this favour cannot be sustained.

Before this Court, in Mrs. Birinder Khullar Vs. Maninder Singh, 2011(1) RCR (Rent) 307, the following questions were raised:-

"(i) Whether the Rent Controller has any jurisdiction to extend time for tendering the provisional rent?

(ii)Whether the Rent Controller has jurisdiction to further extend time to tender rent in case of disagreement with the tenant on his application regarding re-assessment?"

After discussing the law laid down by the Apex Court in Rakesh Wadhawan's case and a Division Bench of this Court in Rajan alias Raj Kumar Vs. Rakesh Kumar's case held as under:-

"19. Thus, after considering the facts of this case and law applicable thereto, the first question is decided in affirmative and it is held that the Rent Controller has no jurisdiction to order extension of time to payment of provisional rent by the tenant. Insofar as the second question is concerned, that too is decided in favour of the petitioner herin because even if it is assumed that the application for re-assessment was a review application the Rent Controller had no jurisdiction to grant further time to the tenant for tendering the provisional rent when he did not agree with him on his application for review. In that circumstance, he was left with no other alternative but to simply dismiss the application as he had actually done in the impugned order but faulted by granting time to the tenant to make the payment of arrears of rent beyond the date, which was given initially when the provisional rent was fixed."

Not only this judgment in the case of Sanjay Sharma Vs. Ajmer Singh (Supra), which has been relied upon by the learned counsel for the petitioner was also noticed.

This Court in the case of Joginder Singh Chatha Vs. Ajit Singh (C.R.No.8392 of 2010, decided on 17.5.2011), held as under:-

"It is now well settled that the Rent Controller has no jurisdiction to extend the time for the tender of provisionally assessed rent. He could extend the time for tender of provisionally assessed rent only if he himself is at fault, but if there is a fault on the part of the tenant, then he has no jurisdiction to extend the time on the asking of the tenant, may be for the purpose of filing the review application. The tenant is required to tender the provisionally assessed rent on the date fixed by the Rent Controller and may file the review application thereafter. The law laid down by this Court in the case of Sudhir Kumar(Supra) fully covers the controversy in hand which is based upon the decision of the Supreme Court in the case of Rakesh Wadhawant Vs. M/s Jagdamba Industrial Corporation, 2002(2) P.L.R 370 (SC)"

Thus, in view of the aforesaid discussion, there is no merit in the revision petition filed by the petitioner challenging the orders dated 28.3.2011 as well as 20.4.2011.

In this view of the matter, I find no merit in the revision petition No.2703 of 2011 filed on behalf of the tenant and the same is liable to be dismissed. The revision petition filed on behalf of the landlord i.e. C.R.No.4312 of 2011 is allowed holding that granting of an opportunity to the tenant to make the payment of provisional assessment was illegal.

Thus, C.R.No.2703 of 2011 is dismissed and C.R.No.4312 of 2011 is allowed to the extent as indicated in the judgment.

The parties shall appear before the Rent Controller on the date fixed and the Rent Controller shall proceed further in accordance with law.Type your paragraph here.