Civil Revision No.5456 of 2002 1
In the High Court of Punjab and Haryana at Chandigarh
Civil Revision No.5456 of 2002
Date of decision: 31.7. 2009
Rafeal O Kanno ......petitioner
Versus
Mahfuz-ur-Rehman .......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Amrit Lal Jain, Advocate.
for the petitioner.
None for the respondent.
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SABINA, J.
Plaintiff-Mahfuz-ur-Rehman filed a suit for possession by
way of ejectment and for recovery of arrears of rent/mesne profits.
Notice of the suit was issued to the defendant.
During the pendency of the suit, an application under
Order 15 Rule 5 read with Section 151 of the Code of Civil Procedure
was filed by the plaintiff. It was averred that the defendant had failed
to deposit the entire amount of compensation for use and occupation
along with interest and hence, his defence was liable to be struck off.
Vide the impugned order dated 19.7.2002, the said application was
allowed by the Civil Judge (Jr.Divn.) Gurgaon. Hence, the present
Civil Revision No.5456 of 2002 2
revision petition by the defendant.
Learned counsel for the petitioner has submitted that now
there was no relationship of landlord and tenant between the parties.
The plaintiff had executed an agreement to sell in favour of the
defendant and had received the entire sale consideration and hence,
the defendant was not in possession of the property in question as a
tenant. In these circumstances, the defendant was not required to
pay any compensation or rent to the plaintiff.
In support of his argument, learned counsel for the
petitioner has placed reliance on R.Kanthimathi and other v. Mrs.
Beatrice Xavier Vol. CXXIX (2001-3) PLR, 587, wherein it has been
held as under:-
“Thus within this legal premises, the
submission by learned counsel for the respondent of
revival of their old relationship of landlord and tenant
when she repudiates this agreement by sending back to
the tenant Rs.20,000/- through a cheque (which
according to the appellant was not encashed) cannot be
accepted. So we have no hesitation to reject the same.
Every conduct of the landlady right from the date of
entering into agreement of sale, accepting money towards
the sale consideration, delivering possession in lieu of
such agreement all clearly indicates and has to be
construed in law that she repudiated her old relationship
Civil Revision No.5456 of 2002 3
of landlord and tenant. Thus, after the parties enter into
new cloak of seller and purchaser and their relationship to
be governed under the said terms of the agreement.
Every right and obligation thereafter would flow from it.
Even if parties under the agreement of sale do not
perform their obligations remedy may be availed in law as
permissible under the law. Hence, we have no hesitation
to hold that Courts below including High Court committed
error in holding that tenant committed wailful default.
When appellant is no more tenant how can non-payment
be construed as wailful default.”
After hearing learned counsel for the petitioner, I am of
the opinion that this revision petition deserves to be allowed.
The petitioner, in the present case, has denied the
relationship of landlord and tenant between the parties. The question
that requires consideration is as to whether in the facts and
circumstances of the present case, the petitioner is required to
deposit entire amount of compensation for use and occupation of
the premises in dispute during the continuation of the suit?
The plaintiff had filed a suit for possession by way of
ejectment and recovery of arrears of rent/mesne profits. The
defendant, on the other hand, has taken the stand that he was no
longer in possession of the property in dispute as a tenant. Rather
he was in possession of the premises in dispute on the basis of part
Civil Revision No.5456 of 2002 4
performance of agreement to sell entered between the parties.
Admittedly, the defendant was inducted as a tenant by the
plaintiff. However, the case of the defendant is that the plaintiff has
agreed to sell the premises in dispute to the defendant and
agreement to sell in this regard was executed between the parties.
The defendant was now in possession of the premises in dispute on
the basis of the agreement to sell and hence, the relationship of
landlord and tenant between the parties had come to an end.
It has been held by the Apex Court in R.Kanthimathi’s
case (Supra) that once there is an agreement to sell between the
parties, then the old relationship of landlord and tenant comes to an
end. The defendant has based his possession on the basis of part
performance of agreement to sell. Parties are yet to lead their
evidence in support of their case. In these circumstances, the
learned trial Court had erred in striking off the defence of the
defendant on the ground that he failed to deposit the rent after
appearing in the Court. In the facts and circumstances of the case,
the defence of the defendant could not be struck of.
Accordingly, this revision petition is allowed. The
impugned order dated 19.7.2002 passed by the Civil Judge
(Jr.Divn.) Gurgaon is set aside.
(SABINA)
JUDGE
July 31 , 2009
anita