CHAMPA DEVI Vs. VITH ADDITIONAL DISTRICT JUDGE GHAZIABAD

JUDGEMENT

(1.) S. U. Khan, J. This writ petition has been filed by the landlord and arises out of execution proceedings. Landlord- petitioner filed suit for ejectment against tenant-respondent No. 3 being suit (S. C. C. Suit No. 123 of 1977) on the file of J. S. C. C. , Ghaziabad. In the suit it was alleged that the shop in dispute was constructed in the year 1971 hence U. P. Act No. 13 of 1972 (hereinafter referred to as the Act) was not applicable, that the defendant was tenant of the shop in dispute on behalf of the plaintiff at the rent of Rs. 135 per month, that rent had not been paid since 8-7-1977 for the recovery of which a notice was given on 26-10-1977, through which tenancy was also terminated. In the plaint it was also stated that the shop could be let out at Rs. 300 per month. In the plaint the relief claimed were for eviction of defendant and for recovery of rent at the rate of Rs. 135 per month till 30-12-1977 and damages at the rate of Rs. 300 per month w. e. f. 6-12-1977. In the suit parties agreed to refer the dispute to the arbitrator. An application with joint signatures of both the parties was filed on 14-12-1978. Through application it was prayed that the matter must be referred to Shri Harbhajan Lal as Arbitrator. By order dated 6-2-1979 J. S. C. C. /civil Judge referred the matter; relevant portion of the order is "let the matter in difference be referred for the determination to the named Arbitrator. "

(2.) THE Arbitrator submitted his award dated 6-6-1979 to the Court i. e. , Civil Judge/j. S. C. C. , Ghaziabad. According to the award the tenant-respondent No. 3 was to pay rent at the rate of Rs. 175 till 30-6-1979 and from 1-7-1979 till 31-3-1980 at the rate of Rs. 200 per month and, thereafter, the rent was to be enhanced by an amount of Rs. 20 per month every year starting from 1-4-1981 and that on 31-3-1984 tenancy would come to an end and the tenant on that date should vacate the shop. Tenant submitted objections before the Court concerned in the suit against the award. THE objections basically pertained to the delay in filing the award. In objection (e) it was mentioned that the award was no award in the eye of law and ground (f) stated that the award had been improperly procured and was otherwise invalid. THE J. S. C. C. decided the objections to the award by order dated 10-11-1980 and rejected the same. Award was confirmed and made Rule of the Court. THE Court in the order placing reliance upon AIR 1967 S. C. page 1030, held that it was not necessary for the Arbitrator to give reasons and rejected the objection of the defendant-tenant to that affect. THE defendant- tenant did not pay the amount as directed by the award hence execution application was filed numbered as execution case No. 9 of 1982 seeking recovery of the amount through arrest and detention of the tenant-defendant. Tenant- defendant filed objections stating therein that the decree was a nullity as the Arbitrator's award was illegal. During hearing of the objections it was conceded on behalf of the tenant that J. S. C. C. had jurisdiction to refer the matter to the Arbitrator. THE J. S. C. C. accepted the objections of tenant- defendant that Arbitrator had no authority to toward rent for more than Rs. 135 per month hence the award and the decree of the Court on the basis of the said award was nullity. THE impugned order was passed by J. S. C. C. on 23-8-1982. THE landlord-petitioner filed revision against the said order being S. C. C. Revision No. 274 of 1982. THE said revision was also dismissed by VIth A. D. J. , Ghaziabad through judgment and order dated 16-3-1984.

(3.) THE Arbitrator granted time to the tenant petitioner to vacate hence in lieu thereof, it was quite permissible to award higher rent/damages for use and occupation. It is correct that the Arbitrator was not aware of fine distinction between rent and damages for use and occupation but it cannot be a ground to render the award as null, void and without jurisdiction. Petitioner filed objections against the award of the Arbitrator and this question was not specifically raised by him. THEre is one more aspect of the matter and that is that petitioner fully enjoyed the benefit, which had been granted to him under the award i. e. , continuing in possession for about five years. In such situation after reaping the benefit of the award petitioner cannot be permitted to say that he will not discharge the liability imposed upon him by the said award.