Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 1105 (PNJ)

Jai Chand v. Daulat Ram

2002-10-23

JAGDISH SINGH KHEHAR

body2002
Judgment J.S.Khehar, J. 1. Daulat Ram, respondent-landlord filed an application under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as "the Act") seeking the eviction of petitioner Jai Chand alleging interalia non-payment of rent. It was the case of the respondent-landlord that rent was payable at the rate of Rs. 170/- per month and that the petitioner-tenant had not paid rent from 1.4.1977 onwards till the filing of the ejectment application. The Rent Controller accepted the plea of the respondent-landlord, By an order dated 10.12.1981 the Rent Controller required the petitioner-tenant to vacate the premises within one month. 2. Dis-satisfied with the order passed by the Rent Controller dated 10.12.1981, the petitioner-tenant preferred an appeal before the Appellate Authority, Sonepat. The Appellate Authority in its decision dated 26.8.1983 concurred with the finding recorded by the Rent Controller. It is in this situation that the petitioner-tenant has approached this Court through the instant petition wherein he has impugned the orders passed by the Courts below. 3. The petitioner-tenant in his effort to impugn the orders passed by the Courts below, 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 P.L.R. 370 (S.C.), wherein the Supreme Court arrived at the following conclusion in paragraph 30 of the above mentioned judgment: "1. In Section 13(2)(i) proviso, the words assessed by the controller quality 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 on such arrears together with the cost 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. Of necessity the date of first hearing of the application would mean the date falling after the date of such order by controller. 4. 3. Of 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." 4. It is the case of the learned counsel for the petitioner that the Rent Controller did not quantify by way of an interim or provisional order the amount which the petitioner tenant was required to pay on account of arrears of rent interest thereon as well as costs. In so far as the aforesaid assertion is concerned, learned counsel for the respondent-landlord very fairly conceded that the Rent Controller did not make any assessment in satisfaction of the requirement of the proviso to Section 13(2)(i) of the Act. In view of the above, the learned counsel for the petitioner vehemently contends that the petitioner could not have been ordered to be evicted from the premises on the ground of non-payment of rent. 5. In view of the above, the learned counsel for the petitioner vehemently contends that the petitioner could not have been ordered to be evicted from the premises on the ground of non-payment of rent. 5. I find merit in the contention of the learned counsel for the petitioner in as much as the liability to pay arrears of rent, interest and costs would only arise after the Rent Controller (in terms of the decision referred to above) assesses the arrears of rent, interest and costs. Since no such assessment was made by the Rent Controller as is the conceded position in the present case the orders of eviction passed by the Rent Controller as well as by the appellate authority are liable to be set aside and the same are accordingly set aside. 6. It would be unfair on my part not to notice a plea raised by the learned counsel for the respondent-landlord on the issue deliberated herein above. It was pointed out by the learned counsel for the respondent-landlord that the Supreme Court while interpreting Section 13(2)(i) of the Act in Rajinder Kumar Joshi v. Veena Rani, J.T. 1990(4) S.C. 50 had not arrived at a different conclusion from the one drawn in Rakesh Wadhawans case (supra). Learned counsel for the respondent-landlord did not dispute that a petition for review of the order passed in Rakesh Wadhawans case (supra) was filed before the Supreme Court wherein the pointed attention of the Court was invited to the decision rendered in Rajinder Kumar Joshis case (supra) and that the review petition was dismissed. In view of the above, it is evident that the reliance placed by the learned counsel for the respondent on the decision rendered by the Apex Court in Rajinder Kumar Joshis case (supra) is wholly mis-placed. 7. In continuation of the submissions of the learned counsel as has been noted in the foregoing paragraphs, learned counsel for the respondent-landlord also placed reliance on the decision rendered by the Supreme Court in Messrs Rubber House v. Messrs Ex-cellsior Needle Industries Pvt. Ltd. (1989-1)95 P.L.R. 584 (S.C.) wherein the Apex Court expressly arrived at the conclusion that the Act did not place any obligation on the Rent Controller to calculate the arrears of rent and interest payable by the tenant. Despite the conclusion stated to have been drawn by the Supreme Court in the aforesaid judgment, it is not possible for this court to accept the contention of the learned counsel for the respondent-landlord on account of the fact that the decision rendered in Messrs Rubber House case (supra) was of a co-equal Bench, and in such a situation, the declaration of law expressed in the later judgment is liable to prevail. In view of the interpretation of the proviso to Section 13(2)(i) of the Act in Rakesh Wadhawans case (supra) which is a later judgment, it is not possible for me to accept the contention raised by the learned counsel for the respondent on the basis of the decision rendered in Messrs Rubber House case (supra). 8. For the reasons recorded above, the instant petition is allowed and the orders passed by the Rent Controller as well as the Appellate Authority are set aside. 9. Learned counsel for the petitioner-tenant has invited the attention of this Court to the fact that possession of the premises in question is presently with the respondent-landlord. Since the instant petition has been allowed, it is natural that possession of the premises in question shall be restored to the petitioner-tenant within three months from today. 10. The parties through their counsel are directed to appear before the Rent Controller on 9.12.2002. The Rent Controller shall after affording an opportunity of hearing to the parties, pass a provisional order under the proviso to Section 13(2)(i) of the Act and thereafter afford an opportunity to the petitioner-tenant to make a tender of the arrears of rent which may be deposited by the petitioner-tenant, if he be so advised. The Rent Controller shall thereupon proceed to decide the case afresh consistent with the law laid down by the Supreme Court in Rakesh Wadhawans case (supra).