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2000 DIGILAW 296 (PNJ)

Chaman Lal v. Ram Dev

2000-03-14

V.S.AGGARWAL

body2000
Judgment V.S.Aggarwal, J. 1. The present revision petition has been filed by Chaman Lal (hereinafter described as "the petitioner") directed against the judgment of the learned Appellate Authority, Kurukshetra, dated 4.3,1982. The learned Appellate Authority had accepted the appeal and set aside the order passed by the learned Rent Controller, Kurukshetra dated 21.9.1981 and instead passed an order of eviction against the petitioner. 2. The relevant facts are that the respondent-landlord had filed a petition for eviction against the petitioner-tenant with respect to the premises in dispute. It had been asserted that the shop in dispute had been let to the petitioner at a monthly rent of Rs. 187.50 per month and that the petitioner had not paid the arrears of rent from 30.3.1979 to 29.2.1980. The petitioner appeared through his counsel in the Court on 16.5.1980. The case was adjourned for tendering the rent to 24.5.1980 and thereafter to 2.6.1980. On 2.6.1980 the rent as claimed with interest and costs was tendered. It was accepted by the respondent-landlord under protest on the ground that the tender was not valid because it had not been made within the statutory period. 3. The learned Rent Controller had framed the issues as to if the petitioner was liable to be evicted for not having tendered the rent on the first date of hearing, and whether the same had been deposited late. The learned Rent Controller keeping in view the totality of the facts, held that it cannot be held that the rent was tendered late and dismissed the eviction petition. 4. In appeal, the learned Appellate Authority took a view to the contrary, it was held that it is the duty of the tenant to tender or pay the arrears of rent in terms of the provisions of the Rent Act and once it has not been done, the tenant, must be evicted. Accordingly, an order of eviction was passed. 5. Aggrieved by the said order, present revision petition has been filed. 6. The short ground that comes up for consideration is as to whether in the facts of the presents case when the rent was tendered on the date fixed by the learned Rent Controller with costs and interest, still even if the statutory period had expired, the first date of hearing would be when the tenant was directed by the Court to tender the rent or otherwise. 7. 7. Before proceeding further, some of the facts which are not in controversy can again be relisted. It is not in controversy that the petitioner along with his counsel appeared on 16.5.1980 before the learned Rent Controller. The respondent-landlord has already made a claim of the arrears of rent. The learned Rent Controller, however, adjourned it to 24.5.1980 for tendering of the rent. On 24.5.1980 the tender of the rent was not made and a request was made for adjournment The learned Rent Controller has thereupon passed the following order:- "The learned counsel for the respondents requests adjournment for tendering of rent. Under the provisions of law, the respondent is entitled to appear within 15 days. In the circumstances, 1 order that the respondent, to tender rent on or before 2.6.1980. Since I am proceeding on leave, therefore, no earlier date can be given." 8. On 2.6.1980 the amount was tendered which was accepted by the learned counsel for the respondent under protest. It is not in controversy that within 15 days when the petitioner-tenant appeared on 16.5.1980 the rent had not been paid or tendered. It is in this backdrop that the above said controversy had arisen. Sub-section (2)(i) of Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short "the Act") read as under:- "(2) A landlord who seeks to evict his tenant shall apply to the Controller, for direction in that behalf. It is in this backdrop that the above said controversy had arisen. Sub-section (2)(i) of Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short "the Act") read as under:- "(2) A landlord who seeks to evict his tenant shall apply to the Controller, for direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied:- (1) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any Such agreement by the last day of the month next following that for which the rent is payable: Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the Controller, at eight per centum per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid: Provided further that the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately proceeding the date of application under the provisions of this Act." 9 A perusal of the relevant provisions clearly show that the ground of eviction becomes available if the tenant has failed to pay or tender the rent within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord. However, the proviso assumes great importance because it gives the tenant another chance to make the payment of the arrears. It is stipulated that if the tenant, within 15 days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent with interest, to be calculated by the Controller, at eight per cent per annum on such arrears together with costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have paid or tendered the rent within the time aforesaid. In order words, the tenant is not liable to be evicted. It is asserted, as mentioned above, that within 15 days the arrears of rent had not been paid or tendered. 10. On behalf of the respondent-landlord, strong reliance is being placed on the Full Bench decision of this Court in the case of Vinod Kumar v. Harbans Singh Azad, (1977)79 P.L.R. 144 (F.B.). The Full Bench while considering the controversy in question had held as under:- " ........Indeed, the tenant may have been heard to plead in this behalf if on that date he had done his duty to tender the rent and other charges before the Rent Controller but the needful had not been done by the Controller in spite of request. Mehar Singh, H., was closeted with a somewhat similar situation in Gulashari Rai v. Devi Dayal, 1956 Cur.L.J. 886, and drew a conclusion that where the Rent Controller makes an omission to assess costs on the first date of hearing but the tenant does not invite him to do so, to facilitate compliance with law, the tenant cannot have benefit of his failure to invite the Controller to do his duty. This is a correct view of the matter. The statutory benefit available to the tenant, under the proviso to Section 13(2)(i) has a limited scope in that the same affords a convenient last minute escape from the rigours of litigation." The first date of hearing" cannot be extended merely by a process of reasoning as adopted by the Appellate Authority, whose finding on the point is, therefore, reversed." 11. The said observations have been made in the light of the facts that when the tenant had approached the Rent Controller with application for setting aside the ex parte order, he had not tendered the costs which were not calculated. An ex parte order of eviction had been passed. After setting aside the ex parte order on the application of the tenant, the Rent Controller had adjourned the matter to 30.1.1968 for further proceedings. The landlord refused to accept the tender claiming that the same had not been made on the first date of hearing. It was in this backdrop that the above said observations and findings were recorded by the Full Bench. It is abundantly clear that the controversy before the Full Bench was different. The landlord refused to accept the tender claiming that the same had not been made on the first date of hearing. It was in this backdrop that the above said observations and findings were recorded by the Full Bench. It is abundantly clear that the controversy before the Full Bench was different. The main controversy and the question referred to was as to whether notice terminating the tenancy had to be served or not? Consequently, it is obvious that the findings of the Full Bench had little relevance to the controversy in the present revision petition because, as referred to above, the facts herein were totally different. Though the Full Bench observed that it is the duty of the tenant to tender the cost, but therein the Court Was not concerned where the Rent Controller himself refused to give a shorter date. 12. In that event, reliance was placed on the decision of the Supreme Court in the case of Rubber House v. Excellsior Needle Industries Pvt. Ltd., (1989-1)95 P.L.R. 584 (S.C.). The findings relied upon on behalf of respondent read as under:- "After a careful scrutiny of the Section 13(2)(i) and the first proviso annexed thereto, we see no force in the submissions of the learned counsel that there is any statutory duty cast on the Rent Controller even in the first instance to determine and calculate the arrears of rent and the interest but on the contrary the proviso requires the tenant to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service alongwith the interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller. What the proviso requires is that the Controller has to calculate the interest at 8 per cent per annum on such arrears of rent and determine the costs of the application, if any. If the argument of the learned counsel is to be accepted then in every case the Rent Controller has to hold an enquiry at the first instance and determine the arrears of rent on the first date of hearing which is in the nature of things not possible without any evidence, nor is it contemplated under the Scheme of the Act. When there is a statutory obligation on the tenant either to pay or tender the arrears of rent within a period of 15 days of first hearing of the application for ejectment after due notice it is , for him to calculate the exact arrears of rent due and to pay or tender the same and if the tenant fails to do so he is deemed to have not paid or made the valid tender of the rent Hence, we hold that this argument advanced on behalf of the appellant is misconceived and fallacious." 13. It is abundantly clear from the findings arrived at by the Supreme Court that the controversy was as to whether the Rent Controller had to hold the enquiry in the first instance and determine the arrears of rent on the first date of hearing or not These findings are confined to the controversy that had arisen and wont come to the rescue of the respondent-landlord. 14. The Supreme Court in a large number of cases had concluded that the first date of hearing is when the Court applies its mind. In the case of Sham Lal (Dead) by L.Rs. v. Atma NandJain Sabha (Regd) Dal Bazar, (1987-1)91 P.L.R. 1 (S.C.), it was held as under:- "It was tried to be contended that these decisions being rendered in connection with suit cannot be taken into consideration in the case of a proceeding before the Rent Controller. We do not find any substance in this contention which seeks to draw a distinction without a difference in substance. It is appropriate to point out in this connection that the object of the East Punjab Urban Rent Restriction Act as stated in the Preamble to the Act is to restrict the increase of rent of certain premises situated within the limits of urban areas and eviction of tenants therefrom. From the objects of this Act it is abundantly clear that this Act was enacted with the object of affording protection to the tenants against arbitrary increase of rent of certain premises within the limits of urban areas as well as from eviction of the tenants from the rented premises. In this context, it is imperative that the words "the first hearing of the application" have to be interpreted in a manner which promote the object of this beneficial legislation. In this context, it is imperative that the words "the first hearing of the application" have to be interpreted in a manner which promote the object of this beneficial legislation. Viewed from this aspect we cannot but hold that the words, "first hearing of the application" as used in proviso (1) to Sub-section (2) of Section 13 of the said Act does not mean the day fixed for return of the summons or the returnable day but the day when the Court applies its mind to the case." 15. Same view was expressed later on by the Supreme Court in the case of Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, (1994-2)107 P.L.R. 75 (S.C.). This was a decision under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The question in controversy was as to what was the meaning of expression date of first hearing where the tenant had appeared before the Court suo motu and the Court had fixed the case for filing of written statement and still further date of hearing and the full amount of arrears was deposited prior to the date fixed for filing the written statement, it was held that it was due compliance by the tenant because the date of hearing is when the Court applies its mind to the controversy. 16. This Court in the case of Joginder Pal v. Vidyawanti, (1998-3)120 P.L.R. 341, had only reiterated the same view. In the cited case, Vidyawati had filed an application for ejectment. One of the grounds of eviction under consideration was non-payment of rent. The tenant had contested the petition for eviction. According to him, the agreed rate of rent was not Rs.700/- per month but was Rs.300/- per month and that he had tendered the rent from August 1, 1991 to February 28, 1993 which was not accepted by the landlord. It was held that the date fixed for return of summons could not be the first date of hearing. If the Court had not applied its mind on the said date, it cannot be taken to be that date as the first date of hearing. 17. It was held that the date fixed for return of summons could not be the first date of hearing. If the Court had not applied its mind on the said date, it cannot be taken to be that date as the first date of hearing. 17. Reverting back to the facts of the present case, it has to be noted that when the tenant appeared, he had prayed for some time but thereafter the Rent Controller adjourned the matter beyond 15 days noting that no shorter date was available because he was proceeding on leave. In fact, he went on to record that the petitioner-tenant should tender the rent on or before 2.6.1990 since he was proceeding on leave. In other words, the Rent Controller had refused to apply his mind to the controversy before the said date. While adjudicating this controversy, common sense cannot be left in the cold storage. When the learned Rent Controller refused to apply his mind and adjourned the matter, the first date of hearing would be when he took up the matter for consideration. In these circumstances, it cannot be held that the petitioner has to be blamed or that merely because the rent was not tendered within 15 days of the appearance, first date of hearing had expired. In these circumstances, the judgment of the learned Appellate Authority cannot be sustained. 18. For these reasons, the revision petition is allowed and the impugned judgment is set aside. Instead the eviction petition fails and is dismissed.