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2002 DIGILAW 1186 (PNJ)

Sunder Krishan v. Murari Lal

2002-11-13

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. This petition Filed under Section 15(6) of the Haryana Urban (Control) of Rent and Eviction Act, 1973 (for brevity the Act) challenges order dated 18.4.1984 passed by the Appellate Authority, Namaul accepting the appeal of the tenant respondent in which the order dated 8.2.1984 passed by the Rent Controller, Namaul was challenged. The Rent Controller has allowed the application of the landlord-petitioner on the ground that tender of rent by him was not valid and, therefore, in accordance with the provisions of Section 13(2) of the Act, the tenant respondent was liable to be ejected. 2. Brief facts of the case necessary for deciding the controversy raised in the present petition are that the tenant-respondent was inducted in the demised premises as tenant @ Rs. 50/- per month vide rent deed dated 5.3.1996. The shop in dispute fell to the share of the landlord-petitioner and his brother one Kunj Lal, who is respondent No. 2 in the present proceedings. Both of them became the landlord of the demised premises in view of the family settlement arrived at between the members of the family. The landlord-petitioner filed ejectment petition of the tenant-respondent on 21.1.1982 alleging that the tenant-respondent has not paid rent from 1.5.1979 to 31.12.1981. Further allegations with regard to non payment of house tax etc. were also levelled. The tenant-respondent tendered the arrears of rent representing the period from 1.5.1979 to 31.12.1981 for a period of 31 months which includes-the payment of house tax, costs and interest. The total amount paid was Rs. 1,991/-. The Rent Controller allowed the ejectment petition by concluding that the tendered amount by the tenant-respondent was not valid because the rent was required to be paid for 32 months and not for 31 months. Consequently, he found that the tender of rent was short by one month and ordered the ejectment of the tenant-respondent on that basis. 3. On appeal to the appellant authority, the view taken was that the tenant-respondent was liable to tender rent only from 1.5,1979 to 30.11.1981 for a period of 31 months and not for 32 months. In support of his conclusion, the Appellate Authority has given various reasons in para 9 of the judgment by observing that no exact amount of arrears of rent or of the house tax was given by the landlord-petitioner in his ejectment petition. In support of his conclusion, the Appellate Authority has given various reasons in para 9 of the judgment by observing that no exact amount of arrears of rent or of the house tax was given by the landlord-petitioner in his ejectment petition. Further reasons given are that the landlord-petitioner failed to disclose that the tenant was bound under the agreement to pay any advance monthly rent and that the rent note is not even admissible in evidence as it required registration. Even otherwise it was also held that there was no provision for tendering the rent in advance and the rent note was between the previous landlord and the tenant-respondent. No fresh rent note was executed between the parties. The Appellate Authority then held that the rent claimed in the rent petition is @ Rs. 50/- p.m. for the period from 1.5.1979 to 31.12.1981 and whereas the landlord-petitioner could have released the rent upto November, 1981 because the rent for the month of December, 1981 was to become due/payable by the end of January, 1982. It was on this basis that the Appellate Authority accepted the amount tendered by the tenant-respondent as the valid tender representing the total sum of rent for 31 months. 4. I have heard Sh. Anil Rathee, learned counsel for the landlord-petitioner and Sh. O.P. Goyal, learned Senior counsel assisted by Sh. Sunil Rana, Advocate for the tenant-respondents. 5. Sh. Anil Rathee has asserted that the tender amount was deficient by one month and the order of the Rent Controller has been illegally reversed by the Appellate Authority. According to the learned counsel the rent of preceding month usually becomes payable by the 1st or 2nd week of the succeeding month and since the application for ejectment of the tenant-respondent was filed on 21.1.1982, the rent had become payable for the month of December, 1981 as well. On that basis, the learned counsel has submitted that the order passed by the Appellate Authority is liable to be set aside and that of the Rent Controller is liable to be restored. 6. Sh. O.P. Goyal has submitted that under Section 13(2) (i) of the Act it is provided that the rent in the absence of any agreement to the contrary becomes payable in the succeeding month by the last date of that month in respect of the preceding month. 6. Sh. O.P. Goyal has submitted that under Section 13(2) (i) of the Act it is provided that the rent in the absence of any agreement to the contrary becomes payable in the succeeding month by the last date of that month in respect of the preceding month. Therefore, by the time the application for ejectment under Section 13 of the Act for non payment of rent was filed rent only upto November, 1981 was payable and the rent of December, 1981 had not become payable. In support of his contention, the learned counsel has placed reliance on the bare language of Section 13(2) (i) of the Act, He has further submitted that in any case, the Supreme Court has no held in the case of Rakesh Wadhawan v. Jagdamba Industrial Corporation, (2002-2)131 P.L.R. 370 (S.C.) that it is the duty cast on the Rent Controller to first calculate the rent and then grant an opportunity to the tenant to tender the same and the Rent Controller having not. followed this procedure, no fault can be found with the tenant-respondent. He has drawn my attention to paragraphs 29 and 30 of the judgment. According to the learned counsel the express language of Section 13(2)(i) of the Act assessed by the Controller qualifies 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. 7. After hearing the learned counsel for the parties, I am of the considered view that this revision petition is liable to be dismissed. A reference may be made to the provisions of Section 13(2)(i) of the Act which reads as under:- "13. Eviction of tenants.- (1) A tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provision of this section. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied. - (i) 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 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 preceding the date of application under the provisions of this Act. (ii) that the tenant has after the commencement of the 1949 Act without the written consent of the landlord (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof, or (b) use the building or rented land for a purpose other than that for which it was leased. (iii) that the tenant has committed or caused to be committed such acts as are likely to impair materially the value or utility of the building or rented land. (iv) that the tenant has been guilty of such acts and conduct as are a nuisance to the occupants of the same building or buildings in the neighbourhood; (v) that where the building is situated, in a place other than a hill station the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause; the Controller may make an order directing the tenant to put the landlord in possession of the building or rented lad and if the Controller is not so satisfied he shall make an order rejecting the application. Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate. (3) xx xx xx (4) xx xx xx (5) xx xx xx (6) xx xx x (7) xx xx xx 8. A bare perusal of Section 13(2)(i) of the Act as extracted above, shows that in the event of any provision contrary to Section 13(2)(i) in the rent note, rent for a particular month would not become due until the last date of the next month. Therefore, if the application for ejectment is filed during the month the tenant is not bound to deposit the rent for that month. This interpretation of Section 13(2)(i) is not res Integra and the consistent view has been taken by this Court in the cases of Sukhwinder Singh v. Finlay and Company, (1967)69 P.L.R. 548, Sukhwinder Singh v. Ashok Kumar, (1997-3)117 P.L.R. 114 and also Sarup Lal v. Sukhwinder Kaur (2000-1)126 P.L.R. 16. In the present case, the appellate authority has held that the rent from 1.5.1979 to 30.11.1981 for a period of 31 months had become due when the application for ejectment was filed by the landlord-petitioner on 21.1.1982 as the rent of December had become payable only by 31,1.1982. On that basis the tendered rent by the tenant was considered to be valid. Obviously, no legal flaw, can be found with the view taken by the appellate Authority. 9. Even otherwise, the judgment of the Supreme Court in the case of Rakesh Wadhawan (supra) has interpreted Section 13(2)(i) mean that it was the duty of the Rent Controller to assess the arrears of rent and interest of 6 per cent per annum on such arrears together with the cost of the application. The procedure laid down in Section 13(2)(i) of the Act as interpreted by the Supreme Court in the case of Rakesh Wadhawan, has obviously not been followed. The view of the Supreme Court in Rakesh Wadhawans case reads as under:- To sum up, our conclusions are: 1. The procedure laid down in Section 13(2)(i) of the Act as interpreted by the Supreme Court in the case of Rakesh Wadhawan, has obviously not been followed. The view of the Supreme Court in Rakesh Wadhawans case reads as under:- To sum up, our conclusions are: 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 percent per annum on such arrears together with the cost of application. 2. The proviso to Section 13(2)(i) of East Punjab Urban 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 filing the date of such order by Controller. 4. On the failure of the tenant to comply, nothing remains to be done and an order of eviction shall follow. If the tenant makes compliance, the enquiry shall continue for finally adjudication 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 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 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. 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." 10. It is evident that no assessment has been made by the Rent Controller nor an opportunity accordingly was furnished to the tenant-respondent to make a legal tender. Therefore, in no case it could be held that the tenant-respondent has committed any fault in tendering the arrears of rent to the Rent Controller. Therefore, there is no merit in this revision petition and the same is liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed.