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Punjab-Haryana High Court
Atelier Automobiles Pvt Ltd And … vs Gurjit Singh Kohli on 16 March, 2021CR No. 2549 of 2020(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 2549 of 2020(O&M)
Date of Decision: 16.03.2021.
Atelier Automobiles and another …… PETITIONERS
Versus
Gurjit Singh Kohli
…… RESPONDENT (s)
CORAM:- HON’BLE MRS.JUSTICE LISA GILL
Present: Mr.Abhivadya Sood, Advocate
for the petitioner.
Mr. Mayank Mathur, Advocate
for the respondent.
*****
LISA GILL, J.
This matter is being taken up for hearing through video conferencing
due to outbreak of the pandemic, COVID-19.
This petition has been filed for setting aside order dated 10.11.2020,
Annexure P-1, passed by the learned Rent Controller, Patiala, whereby
application under Order 7 Rule 11 CPC, filed by the petitioners, for rejection of
the rent petition filed by the respondent has been dismissed.
Brief facts necessary for adjudication of the case are that respondent
filed a petition under Section 20 (2) of the Punjab Rent Act, 1995 (for short ‘ Rent
Act’), seeking ejectment of the present petitioner from the premises in question
on the ground of non-payment of rent.
An application under Order 7 Rule 11 CPC, Annexure P-3, was filed
by the petitioner, seeking rejection of the said petition on the ground that petition
under the Rent Act is not maintainable and the remedy, if any, available to the
landlord, is under the Transfer of Property Act,1882 (for short ‘T.P. Act’).
Petitioners application under Order 7 Rule 11 CPC, was dismissed by the learned
Rent Controller, vide impugned order dated 10.11.2020.
Aggrieved therefrom, present revision petition has been filed.
Learned counsel for the petitioner vehemently argues that learned
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Rent Controller, Patiala, has grossly erred in law and on facts in dismissing
petitioners application under Order 7 Rule 11 CPC by holding that lease deed
dated 01.11.2017 is actually a rent deed as clear cut intention of the petitioners
was to execute a rent deed on the premises being let out on rent to the petitioners
for running the Maruti Dealership. It is argued that in-fact a lease deed was
executed between the petitioner and respondent no.1 on 01.11.2017. The said
lease deed is a registered one and in this view of the matter, Section 114 of the
T.P. Act, can be invoked and petition under Rent Act is not maintainable. Learned
counsel submits that the learned Rent Controller has erred in referring to Clause 5
of the Lease Deed taking it to be a forfeiture clause, therefore bringing the
proceedings within the ambit of the Rent Act. It is submitted that lease is for a
period of 20 years with a lock-in period of five years with a clause for renewals.
Clause 5 of the Lease Deed, it is submitted is in-fact not a forfeiture clause but is
a general condition of the lease. Moreover, even if, there is any default in the
payment of rent, the landlord is at liberty to issue a notice in this regard in terms
of Section 111-G of the T.P. Act. He relies upon the decision of the Hon’ble
Supreme Court in Laxmidas Bapudas Darbar Vs. Smt. Rudravva, 2001 (7)
SCC 409 and this High Court in The State of Himachal Pradesh (through the
Secretary for Forests Ministry of Forests) Simla Vs. Ram Piari and others,
2009(1) R.C.R (Civil) 648 and of the Allahabad High Court in Chandra
Shekhar Prasad Vs. Special Judge / Additional District judge, Ballia, 2000(2)
R.C.R (Rent) 395. It is thus prayed that the present petition be allowed.
Learned counsel for the respondent on the other hand submits that
application under Order 7 Rule 11 CPC has been rightly dismissed, as petition
under the Rent Act, is maintainable. Cause of action is clearly revealed therein.
He refers to Section 4 of the Rent Act, which provides for an agreement in
writing as referred to in Schedule I. It is submitted that the term lessee is
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interchangeable with tenant. Therefore, mere nomenclature of ‘lease deed’ even
when the document is clearly a rent deed cannot by itself be sufficient to oust the
jurisdiction of the Rent Controller. He also relies upon decision of the Hon’ble
Supreme Court in Laxmi Das Bapudas Darbar (Supra). It is thus prayed that
present revision petition be dismissed.
I have heard learned counsel for the parties and have gone through
the file with their assistance.
It is a settled position that for determining the nature of a document,
nomenclature thereof may not be conclusive in itself, intention of the parties
executing it has to be seen as well. It cannot be denied that the term ‘rent deed’
and ‘lease deed’ are often used interchangeably. Intention of the parties
necessarily has to be gathered from the document in question. The entire
document has to be read as a whole to determine its nature. At this stage, it is
relevant to refer to Section 4 of the Punjab Rent Act, which reads as under:-
“4. Registration of tenancy agreement. –
(1) Notwithstanding anything contained in section 107 of the
Transfer of Property Act, 1882, no person shall, after the
commencement of this Act, let or take on rent any premises except
by an agreement in writing.
[[(2) Notwithstanding anything contained in the Registration Act,
1908 (16 of 1908), every agreement referred to in sub-section (1)
shall be in the Form specified in Schedule I appended to this Act and
shall be registered under and in accordance with the provisions of the
Registration Act 1908 by the authority specified thereunder, on
payment of registration fee of rupees one thousand.]]”
It is a matter of record that Instrument/Document dated 31.10.2017
was executed between the parties when respondent no.1 let out his premises as
described in the said instrument to the petitioner. Petitioners claims the premises
to have been given on lease by way of lease deed 01.11.2017, while the
respondent asserts that the premises, admittedly situated within municipal limits,
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were let out on rent to the petitioners for running the Maruti dealership vide
instrument dated 31.10.2017, which though titled ‘lease deed’ is actually a rent
deed.
It is mentioned in the said document that ‘Witnesseth that in
consideration of the rent hereinafter reserved and the covenants and
agreements hereinafter contained and on the part of the Atelier Automobiles Pvt.
Ltd., to be, observed and performed, the lessor (s) do hereby agree and lease
Atelier Automobiles Pvt. Ltd., all that tenement and premises known, as
Showroom complex situated at Main Sanour Road, Vill. Ghalori, The. & Distt.
Patiala, as per Jamabandi for the year 2014-15, Comprising Khewat No. 205/282,
Khasra No. 11//2/2/1 Min/1-4, 9/1 Min/1-9, Kitte 2 measuring 2 Kanal 13 Marla
and Khewat/Khatoni No. 216, Khatoni No. 309, Khasra No. 10//15/1/1/0-1,
Khatoni No. 310, Khasra No.11//11/1Min/3-1, Khatoni No. 311, Khasra
No.11//9/2/1/3-16, 11//10/1/1/1-5 Kitte 2 measuring 5 Kanal 1 Marla, total
measuring 10 Kanal 16 Marlas i.e., 6817.77 sq. Yards, bounded on the North,
South, East and West as shown in the plan attached hereto with all rights,
easements, liberties appendages and appurtenances thereunto belonging to
‘HAVE AND TO HOLD’ the said premises (hereinafter referred to as the
demised premises) unto the Atelier Automobiles Pvt. Ltd. On AS IS WHERE IS
BASIS except removable equipment (list enclosed) for an initial period of 5
years with 3 renewal option(s) of 5 years each [to be exercised by the Atelier
Automobiles Pvt. Ltd., as its own option (s)] of the same terms and conditions
subject however to the covenants set out hereafter, to be computed from the date
01/04/2018 and rent payable on 1/06/2018 YIELDING AND PAYING
THEREFORE unto the lessor the Monthly rent of Rupees 3,00,000/- per
month lumpsum (total property on plot area of 6817.77 Sq. Yards with on 1st
day of every month for the preceding/succeeding month and the Atelier
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Automobiles Pvt. Ltd., hereby covenants with lessor in manner following
that is to say;
1. That the Atelier Automobiles Pvt. Ltd., Will pay or cause to
be paid to lessor the monthly rent hereby reserved at the time
herein before appointed for payment thereof.
(Emphasis added)
It is further mentioned in Clause 5 of the deed that:-
“Provided always and it is hereby agreed and declared that if the
said monthly rent or any part thereof shall be in arrears and, unpaid for a
period of 30 days after any of the days whereon, the same ought to have been
paid as aforesaid, any substantial breach of any convenants herein it shall be
lawful for the lessor to cancel this lease and take back possession of the
premises.”
(Emphasis added)
Doubtlessly, instrument dated 31.10.2017, is titled ‘lease deed’.
However, the terms and conditions thereof clearly reveal that it is in-fact a rent
agreement which was registered in terms of the specific provisions of the Punjab
Rent Act, 1995. Schedule I of the Act, which provides for a proforma of an
agreement between a tenant and landlord, has clearly used the term lessee and
tenant interchangeably. Relevant part thereof reads as under:-
“[Schedule I]
(See section 4)
Form of Agreement
(to be typed on Bond Paper in three copies, one each for the Landlord, the Tenant
and the [Registering Authority]).
Agreement
This agreement is made between__________________Owner/ Authorised
Attorney/Landlord of__________and_______________lessee (tenant)
on___________day of_____________(month and year) for letting out of
premises on the following terms and conditions, namely:-
XXXXXXX”
Property in question has been clearly identified and described in the
document. It is specifically observed by the learned Rent Controller, Patiala that
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no document has been set forth by the present petitioner to indicate that the
property in question does not fall within the municipal limits of the Municipal
area. Even at the time of arguments before this Court, no such argument was
forthcoming neither has any document been furnished in this regard.
Clause 5 of the Deed dated 31.10.2017, stipulates that if monthly rent
or any part thereof remains unpaid for a period of 30 days, if the same ought to
have been paid, any substantial breach of any covenants herein, it would be
lawful for the lessor to cancel this lease and take back possession of the premises.
Learned Rent Controller, Patiala, in the given factual matrix has correctly held
that there is a specific clause of re-entry notwithstanding the lock-in period,
therefore the document has to be accepted to be a rent deed.
Learned counsel for the petitioner has relied upon decision dated
16.01.2008 in CR No. 1159 of 1987, d/d 16.10.2008, titled as ‘The State of
Himachal Pradesh (through the Secretary for Forests Ministry of Forests) Simla
vs. Ram Piari and others’. Perusal of the said decision, reflects a reference to
decision of the Hon’ble Supreme Court in Modern Motel, Gudur Vs. K.
Radhakrishanaiah and others, 1989 (2) RCR 306. Honble Supreme Court in
the said case set aside action for eviction initiated against the tenant on the plea
that the tenant had failed to pay the rent for a certain period while observing that
‘the lease deed did not stipulate a forfeiture clause in the lease leading to
terminating forfeiture, the contractual tenancy was subsisting under the provisions
of the Transfer of Property Act and there could not be any eviction from such a
tenancy.’
In the present case, there is a specific clause leading to termination
by forfeiture. Similarly, decision dated 11.01.2016 in RSA No. 6496 of 2014,
titled as Hira Lal (deceased) through his LRs Bhagan Bai and others Vs. Wakf
Dera Mahant Purshottam Dass and others, deals with lease deed of agricultural
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land for 99 years. The same is not applicable in the facts and circumstances of the
case. Judgement of the Hon’ble Supreme Court in Laxmidas Bapudas Darbar’s
case supra relied upon by both learned counsel, in fact works in favour of the
respondent. It is specifically observed in the said decision that eviction of a tenant
under a fixed term contractual lease can be initiated during subsistence or
currency of the lease only on a ground as may be enumerated in Rent Act which
is also provided as one of the grounds for forfeiture of the lease rights in the lease
deed.
It is a matter of record that there is a specific clause to this effect in
the deed dated 31.10.2017 and the same is a ground for eviction under the Act.
Therefore, impugned order dated 10.11.2020, Annexure P-1, has been correctly
passed by the learned Rent Controller, Patiala.
I do not find any illegality, infirmity or perversity in the
impugned order dated 10.11.2020, Annexure P-1, passed by the learned Rent
Controller, Patiala, which calls for any interference in exercise of revisional
jurisdiction.
Revision petition is accordingly dismissed.
( LISA GILL )
March 16,2021. JUDGE
‘s.khan’
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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