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2002 DIGILAW 1068 (PNJ)

Mohan Lal v. Jagan Nath

2002-10-16

JAGDISH SINGH KHEHAR

body2002
Judgment J.S.Khehar, J. 1. Respondent-landlord Jagan Nath filed an ejectment application against the petitioner-tenant Mohan Lal claiming the eviction of the petitioner-tenant on account of non-payment of rent. In this behalf, the claim of the respondent-landlord was that the petitioner-tenant had not paid rent for the. period from 1.4.1978 to 31.5.1981. It was the case of the respondent-landlord that rent was payable at the rate of Rs. 125/- per month. The Rent Controller arrived at the conclusion that the rate of rent was Rs. 60/- per month inclusive of house-tax etc. but accepted the claim of the respondent-landlord and ordered the eviction of the petitioner-tenant on 29.8.1983 after arriving at the conclusion that the petitioner-tenant had not paid rent for the period referred to in the ejectment application. 2. Dissatisfied with the order passed by the Rent Controller, the petitioner-tenant preferred an appeal before the Appellate Authority, Karnal. The Appellate Authority by its order dated 27.9.1984 dismissed the appeal preferred by the petitioner-tenant. 3. Aggrieved with the orders passed by the Rent Controller as well as the Appellate Authority, the petitioner-tenant has approached this Court by filing the instant petition. 4. Learned counsel for the petitioner-tenant has placed reliance on a decision rendered by the Apex Court in Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and ors. (2002-2) 131 PLR 370 (SC), wherein the Apex Court arrived at the following conclusions:- "1. In Section 13(2) (i) proviso, the words assessed by the controller qualify not merely the words the cost of application but the entire preceding part of the sentence i.e., the arrears of rent and interest at six per cent per annum of such arrears together with the costs of application. 2. The proviso to Section 13(2) (i) of East Punjab Urban Rent Restriction Act, 1949 casts an obligation on the controller to make an assessment of (i) arrears of rent (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the "first date of hearing" after the passing of such order of assessment by the controller so as to satisfy the requirement of the proviso. 3. On necessity, the date of first hearing of the application would mean the date falling after the date of such order by controller. 4. 3. On necessity, the date of first hearing of the application would mean the date falling after the date of such order by controller. 4. On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the Controller. 5. If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct a refund. If, on the other hand, the amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order-directing tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted Compliance shall save him from eviction. 6. While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings." On the basis of the aforesaid conclusions drawn by the Apex Court, learned counsel for the petitioner has vehemently contended that the Rent Controller did not discharge his obligation in passing a provisional order envisaged under the provisions of Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act); determining the arrears of rent, the interest payable thereon, as well as the costs, which the petitioner-tenant was liable to pay. The aforesaid factual position has not been disputed by the learned counsel for the respondent. In view of the above, the orders passed by the Rent Controller as well as by the Appellate Authority are liable to be set aside. The same are accordingly set aside. The aforesaid factual position has not been disputed by the learned counsel for the respondent. In view of the above, the orders passed by the Rent Controller as well as by the Appellate Authority are liable to be set aside. The same are accordingly set aside. 5 It would, however, be unfair to the learned counsel for the respondent if 1 do not notice two arguments advanced on behalf of the respondent, namely, firstly, that the Apex Court while deciding the controversy in respect of the issue of non-payment of rent in Rakesh Wadhawans case (supra) did not take into consideration the earlier decision rendered by the Supreme Court in Rajinder Kumar Joshi v. Veena Rani, JT 1990 (4) S.C. 50. The Second contention of the learned counsel for the respondent is that the decision rendered by the Supreme Court in Rakesh Wadhawans cose(supra) would not be applicable in the facts and circumstances of this case because the order of eviction in this case is regulated by the Haryana Urban (Control of Rent & Eviction ) Act, 1973, whereas the Supreme Court while deciding Rakesh Wadhawan s case (supra) had interpreted the provisions of the East Punjab Urban Rent Restriction Act, 1949 . 6. In so far as the first contention of the learned counsel for the respondent is concerned, it is no doubt true that the decision rendered by it in Rakesh Wadhawans case (supra), does not notice the decision rendered by the Apex Court in Rajinder Kumar Joshis case (supra), however, learned counsel for the respondent has very fairly conceded that after the decision of the Supreme Court in Rakesh Wadhawans case: a review petition was filed, wherein the Court was informed of the earlier decision rendered by the Supreme Court in Rakesh Wadhawans case (supra) and that the aforesaid review petition has since been dismissed. In view of the above, the contention raised by the learned counsel for the respondent on the basis of the decision in Rajinder Kumar Joshis case (supra) is obviously devoid of any merit. 7. In so far as the second contention of the learned counsel for the respondent is concerned, it is evident from the conclusions drawn by the Apex Court in Rakesh Wadhawans case (supra) that the Supreme Court while arriving at its conclusion primarily interpreted words "assessed by the Controller" in the proviso to Section 13(2)(i) of the Act. 7. In so far as the second contention of the learned counsel for the respondent is concerned, it is evident from the conclusions drawn by the Apex Court in Rakesh Wadhawans case (supra) that the Supreme Court while arriving at its conclusion primarily interpreted words "assessed by the Controller" in the proviso to Section 13(2)(i) of the Act. In fact the proviso to Section 13(2)(i) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 uses a similar phrase, namely, "to be calculated by the controller." Thus, viewed, 1 have no doubt in my mind that the decision rendered by the Apex Court in Rakesh Wadhawans case (supra) squarely applies to cases regulated under the proviso to Section 13(2)(i) of the Haryana Urban (Control of Rent & Eviction) Act, 1973. 8. For the reasons recorded above, the instant petition is allowed. The orders passed by the Rent Controller as well as the Appellate Authority are set aside. Parties through counsel are directed to appear before the Rent Controller on 2.12.2002. The Rent Controller shall after affording an opportunity of hearing to the petitioner, pass a provisional order under the proviso to Section 13(2)(i) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 and thereafter afford an opportunity to the petitioner-tenant to make a tender of arrears of rent, if so advised, and thereupon proceed to decide the case afresh consistent with the law laid down by the Supreme Court in Rakesh Wadhawans case (supra).