1. Though the controversy raised in this first appeal appears to have assumed some enormity on account of the status and the expertise the two litigating parties have acquired in fighting legal battles they are practicing advocates of this Court of considerable standing vet the facts noticeable to resolve the same are brief and short. As a matter of fact the factual assertions made in the pleadings have brought the two combatants in a very close arena.
2. As per the allegations in the plaint, the plaintiff-respondent along with his wife Mrs. Maninder Kaur purchased House No. 127, Sector 10-A, Chandigarh, from one Shri Balwant Singh son of Atma Singh for a consideration of Rupees 1,27,000 vide sale dad dated May 31, 1979. At that time the defendant appellant was in occupation of a portion of the ground floor as a tenant under Balwant Singh vendor at a monthly rent of Rs. 310. Having thus stepped into the shoes of Balwant Singh, the respondent initiated proceedings under S. 13 of the East Punjab Urban Rent Restriction Act. 1949 (for short, the 'Act') in the Court of the Rent Controller, Chandigarh for the eviction of the appellant but the latter in his written statement dated Oct. 1, 1982 categoroca1y pleaded before the Rent Controller that no relationship of landlord end tenant existed between the parties. Besides taking the further plea that the transaction between Balwant Singh and the respondent was a sham one, he asserted that the title to the property continued to vest in Balwant Singh. In the light of this stand of the appellant and believing that he had forfeited whatever right of tenancy he might be having in the property in question, the respondent withdraw those proceedings by making a statement to that effect on Oct. 18, 1982. Then he filed the present suit on Oct. 19, 1982 with the assertion that the appellant having forfeited his right of tenancy on account of his plea in the rent proceedings was a trespasser in the house in question and was thus liable to be dispossessed. This plea of the respondent has been accepted by the trial Court and the impugned decree for dispossession of the appellant was passed on May 19, 1983.
3. As against this, the appellant in his written statement pleaded that the plea of disclaimer or denial of relationship of landlord and tenant between the parties was taken under stress and confusion as the respondent failed to disclose the details of the transaction between him and Balwant Singh, his former landlord. Even in those proceedings Mrs. Maninder Kaur was not impleaded as a party. He claimed that as a matter of fact the relationship of landlord and tenant did exist between the parties. In support of this plea it was also stated that he had been paying rent to the respondent from June 8, 1979 onwards and as a matter of fact tendered Rupees 8,270 by way of rent, interest an costs before the Rent Controller on August 25, 1982, in order to avoid his eviction by the Rent Controller. This amount according to the appellant was accepted by the counsel for the respondent without any protest or pre-condition. It was also his case that the plea of disclaimer taken by him before the Rent Controller was only an alternative plea end merely on that account he did not lose his tenancy rights. On these premises he asserted that the civil Court had no jurisdiction to pass a decree of dispossession against him. It was a1so pleaded that plaintiff-respondent was equally bound by his admission and assertion in the rent application that he was a tenant under the former as he was under Balwant Singh his predecessor-in-interest.
4. It is manifest from the above referred to contents of the pleadings that the primary question which needs to he settled is as to whether the relationship of landlord and tenant continued to exist between the parties in spite of the above noted plea of disclaimer taken up by the appellant in the rent proceedings. In the light of these pleadings, I hardly find it necessary to refer to the evidence of the parties which essentially is scanty on account of the absence of any serious dispute on facts. Learned counsel for the parties are agreed that the issues framed by the lower Court for trial are either the various facts of this cardinal issue or are only consequential in the sense that the answer to those depends on the answer to this one.
5. So far as the objection of the appellant to the jurisdiction of the civil Court is concerned. I find that the question whether there is a relationship of landlord and tenant between the parties or such other jurisdictional question has to be determined by the Court where it falls for determination be it a Court of Rent Controller or the ordinary civil Court. Answer to it primarily depends on the case set up in the plaint. The defendant's p1ea about the existence of such a relationship does not straightway oust the jurisdiction of the ordinary civil Court. It is only if ultimately the plea of the defendant is accepted that the suit might fail on that account. (See Natraj Studios (P.) Ltd. v. Navrang Studio. AIR 1981 SC 537).
6. Further stand of Shri Ashok Bhan, learned Senior Advocate for the appellant, is that in spite of the plea of disclaimer of tenancy taken by his client before the Rent Controller. he continues to be a tenant in view of the inclusive definition of 'tenant' as provided for in S. 2 (i) of the Act. According to the learned counsel, a tenant under the Act cannot be evicted from the demised premises except in accordance with or on the grounds specified in S. 13 (1) of the Act. In support of this stand of his, he places firm reliance on the following observations of the Supreme Court in Mani Subrat Jain v. Raja Ram Vohra. AIR l980 SC 299:--
Section 2(i) reads:
'tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord or a person to whom the collection of rent or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a municipal, town or notified area committee.
In this context, we may also read S. 13 (1) which is integral to and makes impact upon the meaning of S. 2 (1) even if there be any marginal obscurity.
13. Eviction of tenants.--(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise anti whether before or after the termination of the tenancy except in accordance with the provisions of this section, or in pursuance of an order made under S. 13 of the Punjab Urban Rent Restriction Act, as subsequently amended.
The expression 'tenant' includes a tenant continuing in possession after the termination of the tenancy in his favour. It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the careful drawn inclusive clause.
xxxx xxxx We feel no difficulty in holding that the text, reinforced by the context, especially Section 13 convincingly include ex-tenants against whom decrees for eviction might have been passed, whether on compromise or otherwise. The effect of the compromise decree in counsel's submission is that the tenancy has been terminated. Nobody has a case that the appellant is not continuously in possession. The conclusion is inevitable that he remains a tenant and enjoys immunity under S. 13 (1).'
In the light of these observations, the case of the appellant is patently full of merit. As already indicated, the whole case of the plaintiff-respondent is that the appellant by pleading disclaimer forfeited his tenancy rights and the same stood determined. Thus according to him, the appellant became a trespasser in the house in question. This may to true under the general law but not in the instant case in view of the above noted provisions of the Act.
7. Shri Sehgal learned Senior Advocate for the respondent-decree-holder, however, counters the stand of the appellant's counsel with the two-fold submission: firstly, the appellant cannot be allowed to approbate and reprobate and secondly, forfeiture of tenancy rights of a lessee in terms of clause (g) of S. 111 of the Transfer of Property Act carries a different concept and meaning than determination of tenancy under the rest of the clauses of the section. In support of this contention of his, the learned counsel places primary reliance on certain observations made by a Division Bench of the Bombay High Court in Rattan Lal v. Chanbasappa, (1978) 2 Rert CR 483: (AIR 1978 Born 216). I, however, find no merit in either of these two contentions.
8. The first plea of the learned counsel for the respondent is obviously devoid of any merit. As has been observed by their Lordships of the Supreme Court in Commr. of Income-tax, Madras v. V. MR. P. Firm Muar. AIR 1965 SC 1216, the doctrine of 'approbate and reprobate' is only a species of estoppel, it applies only to the conduct of parties. As in the case of estoppel, it cannot operate against the provisions of a statute in the instant case even it the appellant is tied down or bound by the admission he made in his reply to the rent application to the effect that he was not a tenant under the respondent still he cannot be deprived of the protection of the Act or disentitled to plead that the Provisions of the Act protect his possession. The lower Court committed a patent error of law in this regard in holding that 'the defendant is also estopped from pleading that he can only be ejected under the provisions of S. 13 of the East Punjab Urban Rent Restriction Act'. Thus I repel this contention.
9. So far as the second contention of the learned counsel for the respondent is concerned, it is no doubt true that one of the recognised modes of determining a lease of immovable property in terms of clause (g) of S. 111 of the Transfer of Property Act, which though in terms does not apply to this part of the country. Yet the principle contained therein has always been recognised and applied by the Courts in this area is when a lessee renounces his character as such by setting up a title it a third person or by claiming title in himself. but this provision or principle does not in any way affect the provisions of the Act so far as these relate to 'landlords' and their tenants. Such a termination of tenancy does not affect the status of a tenant under the Act as the definition of 'tenant' in the Act as already indicated includes an ex-tenant or a former tenant. Though in Rattan Lal's case (AIR 1978 Bom 216) (supra) the learned Judges have observed in the light of the 'intendment', 'purpose' and scheme of the Bombay Rents Hotel and Lodging House Rates Control Act (57 of 1947) that cases of surrender of tenancy by the tenants or disclaimers are qualitatively different from those referred to in clause (g) of S. 111 of the Transfer of Property Act anti tax tenant is bound to lose the protection of the Bombay Rent Act if he renounces his tenancy title or surrenders possession of the demised premises in favour of the landlord, yet firstly, in the light of the above noted observations of the Supreme Court in Mani Subrat Jain's case (AIR 1980 SC 299) (Supra) qua the provisions of the Act I hardly feel the necessity of examining in detail the weight of the observations made by the learned Judges of the High Court and secondly. I find that the ratio of this judgment just runs counter to the observations of the Supreme Court in Punjalal Bhagwanddin v. Dave Bhagwataprasad Prabhuprasad. AIR 1963 SC 126 which judgment does not a1ppear to have been brought to the notice of the learned Judges of the High Court. One of the primary contentions raised before the learned Judges of the High Court was that in suite of the plea of disclaimer taken by defendants 3 and 4 in that case, all that could be said in favour of the plaintiff in that behalf was that contractual tenancy of defendants 3 and 4 had come to an end and the defendants became statutory tenants and they were protected by the provisions of the Bombay Rent Act and decree or eviction against them could be passed only in accordance with and under the provisions of the said Act but it was rebelled by the learned Judges, as I already indicated in the light of the subtle distinction pointed out by then between surrender and disclaimer of tenancy as against the various other modes of termination of tenancy provided for in Section 111 of the Transfer of Property Act. This is how the very same argument has been accepted by the Supreme Court in Bhaiya Punjalal Bhagvanddin's case (supra) with the following observations:--
'Sub-section (1) of Section 12 of the Act provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to nay. the amount of the standard rent and Permitted increases, if any, and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Act. It creates a restriction on the landlord's right to the recovery of possession. When the landlord will have such a right is not provided by it. Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy had determined. The Provision of this section therefore will operate against the landlord after the determination of the tenancy by any of the modes referred to in Section 111 of the Transfer of Property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled to recover possession, though a right to recover possession gets vested in him so long as the tenant complies with what he is required to do by this section. It is this extra protection given by this section which will be useful to the tenant after his tenancy has determined.'
In the light of this authoritative pronouncement I find it difficult to concur with the ratio and conclusion recorded by the learned Judges of the Bombay High Court in Rattan Lal's case (supra). Otherwise also I find that the various clauses of Section 111 of the Transfer of Property Act only indicate the various ways in which a tenancy or lease can be determined. It makes the least difference in what manner or under which of these clauses the lease has been determined as the net result in all or leather of the cases is the determination lot the lease. It is so very clear from the opening words of the section. Further the happening of any of the specified events does not ipso facto put an end to the lease but only exposes the lessee to the risk of forfeiting his lease and gives a right to the lessor, if he so elects, to determine the lease. There is no provision in the Act which enables the lessee to determine a lease for breach by the lessor.
10. Besides all this I have already expressed a similar view in Manmohan Nath v. Smt. Kesra Devi, 1980 Cur LJ (Civ) 100 that in the light of the definition of 'tenant' in the Act, an ex-tenant continuing in possession of the demised premises is protected by the provisions of the Act in spite of the termination of the tenancy. In his favour.
11. In the light of the discussion above, it is patent that the possession of the appellant tenant continues to be protected by the provisions of the Act and the civil Court has no jurisdiction to pass a decree of dispossession against him. (See Sawan Ram v. Govinda Ram, AIR 1980 Punj & Har 106 (FB)). I, therefore, accept this appeal and while setting aside the judgment and decree of the lower Court dismiss the suit of the respondent. Since the appellant himself is no less responsible for this litigation by taking a frivolous plea in the proceedings before the Rent Controller that he was not a tenant under the respondent. I disentitle him from realising the costs of this litigation.
12. Appeal allowed.