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2003 DIGILAW 652 (PNJ)

Gurmukh Singh v. Budh Ram

2003-05-07

S.S.SARON

body2003
Judgment S.S.Saron, J. 1. The petitioners who are the landlords in the present case, had filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short the Act) for ejectment of the respondent-tenant from the premises of H. No. 882/4, Circular Road, Ambala City. One of the grounds was that the tenant had not tendered the rent due to the landlord. The tenant did not tender the rent on the first date of hearing and accordingly the learned Rent Controller vide her order dated 14.12.1993 proceeded exparte against the respondent-tenant. The respondent-tenant thereafter filed an application for setting aside that exparte order on the ground that a wrong date had been noted by his counsel. The petitioners opposed the said application on the ground that the tenant had failed to plead sufficient grounds for his non appearance on 14.12.1993 on which date he was proceeded against exparte. It was further stated that the respondent-tenant in fact, did not have sufficient means to deposit the rent and, therefore, the petition for setting aside the exparte order was liable to be dismissed. The learned Rent Controller vide her order dated 9.4.1994 set aside the exparte order dated 14.12.1993 and allowed the application subject to Rs. 150/- as costs. It is against the said order that the present revision petition has been filed in this Court. 2. I have heard the learned counsel for the parties and with their assistance have gone through the record of the case. 3. Learned counsel for the petitioners has contended that in fact the respondent-tenant did not have the sufficient means to tender the rent and therefore, he intentionally did not put in appearance on 14.12.1993. Therefore, the learned Rent Controller erred in setting aside the exparte order dated 14.12.1993. On the other hand, the learned counsel for the respondent contends that stage for tendering the rent had not even reached as the same is to be tendered at the time when the learned Rent Controller applies her mind to the facts and circumstances of the case and that stage is normally when issues are framed. 4. I have considered the respective contentions of the learned counsel for the parties. 4. I have considered the respective contentions of the learned counsel for the parties. It is not in dispute that case has been disposed of at the very initial stage as the respondent-tenant had failed to put in appearance on the first date of hearing. The question that requires consideration in this case is, whether the same would entail eviction of the tenant on the sole ground of his not being able to tender the rent on the date when he put in appearance. Section 13 of the Act provides for eviction of the tenants. Section 13(2) of the Act reads as follows:- "13. Eviction of tenants- (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 last date 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." 5. 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." 5. A perusal of the above shows that the landlord who seeks to evict his tenant has to apply to the Controller for a direction in that behalf and when the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within 15 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 date of the month next following that for which the rent is payable, could order eviction. Proviso thereto, however, envisages that if the tenant, within a period of 15 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. Therefore, it is evident that the tenant can tender the rent due within the meaning of proviso to Section 13(2) of the Act within 15 days of the first date of hearing of the application. The "first date" has been interpreted by the Honble Supreme Court in Sham Lal v. Alma Nand Jain Sabha, A.I.R. 1987 S.C. 197. The "first date" is taken to be the date when the Rent Controller applies his mind to the facts and circumstances of the case and that is normally when issues are framed. In this view of the matter, it cannot be said that the tenant was required to deposit the rent on 14.12.1993. Therefore, the contention as urged by the learned counsel for the petitioners is totally devoid of any merit. In these circumstances, the learned Rent Controller has rightly allowed the application and set aside the exparte order. In this view of the matter, it cannot be said that the tenant was required to deposit the rent on 14.12.1993. Therefore, the contention as urged by the learned counsel for the petitioners is totally devoid of any merit. In these circumstances, the learned Rent Controller has rightly allowed the application and set aside the exparte order. Another ground which has been noticed by the learned Rent Controller is that one of the respondents was a minor and he could not have been proceeded against exparte as laid down under Order 32 CPC. This ground by itself was sufficient to set aside the exparte order. 6. Keeping in view the above facts and circumstances of the case, I find no merit in this petition and the same is hereby dismissed with no order as to costs.