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2002 DIGILAW 1119 (PNJ)

Dhanna Singh v. Teja Singh

2002-10-23

HEMANT GUPTA

body2002
Judgment Hemant Gupta, J. 1. The present petition by the tenant is against the order of ejectment passed by the Courts below on the ground that the tenant was in arrears of rent. 2. As per the landlord, the tenant was inducted for a period of 11 months about 10 years back at the rate of Rs. 80/-. Subsequently, the rent was enhanced to Rs. 90/- and then to Rs. 250/- in May, 1980 because certain additions were made in the shop-in-dispute. Since the tenant did not paid arrears of rent at the rate of Rs. 250/- from 1980, therefore, the petition was filed to seek ejectment of the tenant on the ground that he is in arrears of rent from 1980 along with house tax since 1980-81. The tenant tendered rent of Rs. 9360/- including interest of Rs. 1950/-, house tax of Rs. 1350/- and costs amounting to Rs. 100/- on 21.12.1988. Initially, the tenant was proceeded ex-parte. Such ex-parte proceedings were set aside on 19.12.1988. The issues in the case were framed after tenant filed written statement on 15.12.1989. It was also stated that the shop was rented out at the rate of Rs. 90/- and not at the rate of Rs. 250/- per month. The learned Rent Controller held that the rate of rent is Rs. 90/- per month on account of the failure of the landlord to bring any documentary evidence on file to show that the rent was enhanced to Rs. 250/- per month. However, it further held that the landlord has not accepted the tender made on 21.12.1980 and as the first date of hearing was 19.12.1988 when the ex-parte proceedings initiated against him were set aside. Consequently, the order of ejectment was passed. Since the arrears of rent were not tendered on the first date of hearing, tenants appeal against the said judgment was also dismissed by the appellate authority. 3. I have heard the counsel for the parties and with their assistance gone through the record of the case. 4. Counsel for the petitioner has relied upon Sham Lal v. Atma Nand Jain Sabha (Regd.), 1987(1) RCR (Rent) 181 (SC) : AIR 1987 Supreme Court 197 in support of the arguments that the first date of hearing is one when the Court applied its mind at the stage of framing of the issues after pleadings are completed. 4. Counsel for the petitioner has relied upon Sham Lal v. Atma Nand Jain Sabha (Regd.), 1987(1) RCR (Rent) 181 (SC) : AIR 1987 Supreme Court 197 in support of the arguments that the first date of hearing is one when the Court applied its mind at the stage of framing of the issues after pleadings are completed. He further relied upon Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others, 2002(1) RCR (Rent) 514 : (2000) 5 Supreme Court Cases 440 to contend that in any case, the tenant was entitled to other opportunity to make the payment of arrears of rent, costs and interest after such arrears are finally determined by the Rent Controller. 5. Sh. A.S. Gill, counsel for the respondent submitted that the first date of hearing was 19.12.1988 when the ex-parte proceedings were ordered to be set aside and not 21.12.1988 and, therefore, the tenant failed to tender rent on such date is not entitled to the protection conferred by statute. 6. I am afraid, the stand of Sh. Gill is not sustainable. The tenant was proceeded ex-parte even before his filing of the written statement and thus the first date of hearing would be the one when the Court applies its mind at the time of framing of the issues. The issues in the case were framed on 15.2.1989 whereas the arrears of rent were tendered on 21.12.1988 much before such first date of hearing. Therefore, in view of the above said Supreme Courts judgment, the petitioner having tendered arrears of rent before such first date of hearing, the order passed by the authorities are not sustainable. 7. Even otherwise, in view of the judgment of the Honble Supreme Court in Rakesh Wadhawans case (supra), the tenant was entitled to another opportunity to tender arrears of rent found by the Rent Controller along with interest and cost thereon. The Rent Controller has ordered the ejectment only on the ground that the arrears of rent were not tendered on the first date of hearing but otherwise finding monthly rent at the rate of Rs. 90/- and tenant having paid such rent along with assessed interest and cost tendered by the tenant was not deficient in any manner. 8. Counsel for the landlord has admitted during the course of hearing that the tender made by the tenant on 21.12.1988 was not deficient in any manner. 90/- and tenant having paid such rent along with assessed interest and cost tendered by the tenant was not deficient in any manner. 8. Counsel for the landlord has admitted during the course of hearing that the tender made by the tenant on 21.12.1988 was not deficient in any manner. However, his only ground to seek ejectment was that the tender was not made on the first date of hearing. 9. Since the Honble Supreme Court in Shamlals case held that the date of hearing is the one when the Court applies its mind i.e. at the time of framing of the issues, therefore, I am unable to uphold the finding recorded by the courts below. Since there is no dispute that the tender made by the tenant on December 21, 1988 was not deficient in any manner, therefore, the matter need not be remanded to the Rent Controller for determining the quantum of arrears of rent, interest and cost. The landlord having refused to accept tender is not entitled to seek ejectment on account of non-payment of arrears of rent. Consequently, the present petition is allowed. The Order passed by the Courts below are set aside. Petition allowed.