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2008 DIGILAW 1753 (PNJ)

S. S. Mann v. A. K. Sharma

2008-10-17

MAHESH GROVER

body2008
Judgment Mahesh Grover, J. 1. This is revision petition preferred by the tenant against the order dated 6.2.2007 vide which the defence of the petition was ordered to be struck off. 2. The facts of the case are that respondent-landlord preferred a petition for eviction of the petitioner on the ground of non-payment of rent. Upon the petition being instituted on 13.6.2006, notice was issued to the petitioner, which was duly served upon him on 29.8.2006 and he put in appearance before the Court. The learned Rent Controller on that very date itself assessed the provisional rent along with costs and interest and the petitioner was directed to tender the same before the Court on 13.9.2006. 3. On this date the petitioner tendered arrears of rent assessed by the Rent Controller provisionally by way of a cheque and the statement of the petitioner was duly recorded on the said date. The cheque, however, got dishonoured. The petitioner thereafter is said to have got prepared a bank draft on 25.9.2006 and according to him, attempts were made to deposit it with the respondent, who refused to accept it. The respondent promptly moved an application before the Court after receiving the communication of the bank on 30.9.2006 with the remark that the cheque has been dishonoured on account of the fact that it exceeded the arrangement, and prayed that the petitioner be evicted from the premises as he had failed to comply with the order of the Rent Controller dated 29.8.2006. On this application counsel for the petitioner contended that the bona fides of the petitioner to be struck off and fixed the case for recording of the respondents evidence. Learned counsel for the petitioner contended that the bona fides of the petitioner were apparent from the fact that he had prepared a draft on 25.9.2006 while the application on the basis of which the impugned order has been passed was moved by the landlord on 30.9.2006. He contended that the bona fides of the petitioner could not doubted further in view of the fact that the had also attempted to rectify his mistake by submitting a draft to the respondent which was not accepted by him. He contended that the bona fides of the petitioner could not doubted further in view of the fact that the had also attempted to rectify his mistake by submitting a draft to the respondent which was not accepted by him. It was next contended that in any eventuality the tender of rent could not be defeated as the first date of hearing had yet to come in view of the fact that the apex court has interpreted the first date of hearing to mean the date on which the Court applies its mind to the case i.e. when either the issues are determined or evidence taken and therefore in this view of the matter, when neither the issues have been framed not evidence commended before the Rent Controller, so even if he had failed to pay the rent, as directed in the order dated 29.8.2006, still he would be very well within his rights to submit the arrears of rent on the first date of hearing i.e. the date when the issues are framed or the evidence taken. Reliance was placed on Mangat Singh Trilochan Singh through Mangat Singh (Dead) through LRs and others v. Satpal, 2004(2) RCR(Civil) 1 : 2003(2) RCR(Rent) 567 : (2003)8 Supreme Court Cases 357 and Sham Lal (Dead) by LRs v. Atma Nand Jain Sabha (Regd.), Dal Bazar, 1987(1) RCR(Rent) 181 ; AIR 1987 SC 197. 4. On the other hand, learned counsel for the respondent placed reliance on the judgment of the apex court in Rakesh Wadhawan v. Jagdamba Industrial Corporation, 2002(1) RCR(Rent) 514 : (2000-2)131 PLR 370 and a judgment of this Court in M/s. S. Nihal Singh Motors and others v. Shama Malhotra etc., 2004(2) RCR(Rent) 461 : (2004-3)138 PLR 389. It was contended that this Court in the aforesaid judgment in M/s. S. Nihal Singh Motors and others v. Shama Malhotra etc (supra) had while following the judgment of Rakesh Wadhawans case (supra) has answered this controversy on almost identical facts. I have heard the learned counsel for the parties. 5. Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity `the Act) makes it obligatory upon the Rent Controller to determine the provisional rent and to further direct the tenant to make a deposit of the arrears of rent by a particular date. I have heard the learned counsel for the parties. 5. Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity `the Act) makes it obligatory upon the Rent Controller to determine the provisional rent and to further direct the tenant to make a deposit of the arrears of rent by a particular date. Failure to deposit the rent by the tenant in accordance with such a procedure adopted by the Rent Controller can invite the eviction. In Rakesh Wadhawans case (supra) the apex court while dealing with the aforesaid provisions of the Act had interpreted it to mean that the Rent Controller is under an obligation to make an assessment of arrears of rent, interest on such arrears and the cost of the application and then quantify by way of an interim order directing the tenant to tender the amount. The Rent Controller is further under an obligation to fix a date for payment of such arrears as has been determined by it in its provisional order and if the tenant fails to comply with the order, then nothing more is required to be done and the ejectment of the tenant necessarily has to follow. The conclusions as briefly summed up in Rakesh Wadhawans case (supra) are as follows :- "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 proceedings part of the sentence i.c. 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 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. (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 deficient amount/failing which along 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 deficient, 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. The view of the law so taken by us advances the object sought to be achieved by the legislation, serves best the interests of landlord an tenant both, removes uncertainty in litigation and obscurity in drafting of the provision and also accords with the principles of justice and equity. Even if, it is an innovation, it is in the field of procedural law, without affecting the substantive rights and obligations of the landlord and the tenant and such innovation is permissible on the basis of authority and supported by principles of justice, good sense and reason. We have not touched the substantive rights of landlord and tenant and are feeling satisfied with a do little in the field of procedure so as to effectuate the purpose of enactment." 6. We have not touched the substantive rights of landlord and tenant and are feeling satisfied with a do little in the field of procedure so as to effectuate the purpose of enactment." 6. Applying the aforesaid tests and observations made by the apex court to the facts of the present case, it becomes abundantly clear that the Rent Controller had correctly adopted the procedure as is required under the Act. The rent was assessed and a date fixed for deposit. The petitioner made an attempt to satisfy the order by way of compliance but the cheque which was submitted, was dishonoured. The net result of this exercise is that there was no tender at all and the order dated 29.8.2006 remained uncomplied with. 7. The Supreme Court observations in Rakesh Wadhawans case (supra) that date of first hearing of the application would mean the date following after issuance of notice on which the provisional assessment has been made and directions issued for compliance on a particular date. Accordingly, the petitioner was required to deposit this amount of rent as was stipulated in the order dated 29.8.2006, which compliance was defeated by the conduct of the petitioner himself. 8. In this view of the matter, the contention of the learned counsel for the petitioner that first date of hearing has to mean the date on which the issues are determined or evidence is commenced cannot be accepted. 9. The power to strike off the defence is not automatic and the Court is vested with a discretion in such matters, which discretion is to be exercised on the facts and circumstances of each case. 9. The power to strike off the defence is not automatic and the Court is vested with a discretion in such matters, which discretion is to be exercised on the facts and circumstances of each case. Besides, the facts of the case in the judgment rendered in Mangat Singh Trilochan Singh through Mangat Singh (Dead) through LRs and others v. Satpal (supra) were that the contents of the summons issued to effect service upon the tenant merely apprised him of the date of appearance and it is in that context that the observation of the Supreme court came to say that it could not be construed to be the date for hearing of the suit in pursuance to the provisions of Order 15, Rule 5 C.P.C The period specified for deposit of rent could not be reckoned for the date of appearance as there was no application of mind of the court but in contradestruction the facts of the present case show that court fixed a date for payment of rent. 10. The facts of the present case are thus entirely different. In this case the petitioner appeared before the Court on 29.8.2006, which was the date fixed before it after the issuance of summons and on this very date the order was passed directing the petitioner to deposit the rent by 13.9.2006, which was substantially not done by the petitioner. In fact, he made a mockery of the Court proceedings by submitting a cheque, thereby purportedly making an attempt to satisfy the order, whereas he had no intention to do so because the cheque which he had deposited was dishonoured. 11. In this view of the matter, the petitioner cannot derive any benefit of the observations of the apex court in the judgments relied upon by him. 12. On the Contrary, the observations made in Rakesh Wadhawans case as also the observations made by this Court in M/s. S. Nihal Singh Motors and others v. Shama Malhotra etc. (supra) are fully applicable to the facts of the case. Therefore, this Court is of the opinion that there is no infirmity in the impugned order. 13. Consequently, the petition being devoid of any merit is dismissed.