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2011 DIGILAW 711 (PNJ)

Smt. Sharda Sharma v. Sohan Lal

2011-03-04

RAKESH KUMAR JAIN

body2011
Judgment Rakesh Kumar Jain, J. 1. The landlady has challenged order dated 28.11.2009 passed by the Rent Controller, Mohali by which her application for seeking eviction of the tenant on the ground of short tender of provisional rent on the next date of hearing has been dismissed. 2. In brief, the case set up by the landlady is that the tenant was inducted in half portion/left portion comprising two rooms of Kothi No.10, Phase-I, SAS Nagar, Mohali at a monthly rent of Rs.3,500/- per month excluding electricity and water charges. She filed petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) against the tenant on the ground of nonpayment of rent w.e.f. 1.10.2005 to 31.3.2008 at the aforesaid rate. In the written statement, the tenant alleged the rate of rent to be Rs. 1,600/- per month excluding electricity and water charges, which was claimed to have been paid upto January 2008. Thus, there was a dispute with regard to rate of rent and period. The landlady then filed an application before the Rent Controller, Mohali for the assessment of provisional rent. The said application was disposed of orr 17.1.2009 with the following order:- "Heard on the question of determination of provisional rent. Petitioner has claimed rent at the rate of Rs.3500/- per month w.e.f. 1.10.2005. On the contrary, respondent has alleged the rate of rent to be Rs.1600/- w.e.f. February 2008. No rent agreement or any other document has been placed on record to deduce the rate of rent. Ld. counsel for the respondent has submitted that he has already deposited rent upto January, 2008 and dispute arose only in February, 2008 when respondent filed a civil suit for permanent injunction against petitioner qua dispossession of respondent. On the contrary ld. Counsel for the petitioner has vehemently contended that the rent is due from 1.10.2005. After hearing the rival contentions of the parties and after giving considerable thought to the same I have found there is no rent receipt on record and I am of the considered opinion that since there is no document on record to determine the actual rate of rent and actual period qua which the rent is due, so I assess rent provisionally at the rate of Rs.2400/- per month due w.e.f. January, 2007. So respondent is directed to make the payment of rent provisionally at the rate of Rs.2400/- per month w.e.f. January 2007 till date along with costs which is assessed as Rs.300/- along with interest at the rate of 6% per annum. To come up for tender of rent for 25.2.2009." 3. It is apparent from the above order that neither the Rent Controller assessed the interest except for mentioning the rate nor pronounced the exact amount, which was to be paid by the tenant on the date of tender. On 25.2.2009, following proceedings were recorded: "I am depositing Rs.61,500/- as per order dated 17.1.2009 under protest being excess rate of rent and time period. Rent is from Jan. 2007 till Feb. 2009 at the rate of Rs.2400/- per month and with interest at the rate of 6% per annum and cost Rs.300/-. I have received under protest the tender Rs.61,500/- being short invalid and insufficient." 4. According to the landlord, the total amount of rent, which was required to be tendered as per her calculation was Rs.66,444/- and since the tenant had tendered Rs.61,500/-, the rent was found to be short and as such she filed an application on 20.3.2009 seeking eviction on this ground alone. The application was replied by the tenant in which he alleged that the amount of Rs.61,500/- was tendered on the date fixed and if it is found short, he is ready to pay the same with immediate effect. He also offered a sum of Rs.10,000/- in terms of the order dated 17.1.2009, which was declined by the landlady. The said proceedings are reproduced as under: "I offer to tender Rs.10,000/- as rent as per order dated 17.1.2009 under protest being excess amount. Earlier I had deposited Rs.6,1500/- in compliance to order dated 17.1.2009 I refused to accept the said tender being late and invalid, since the respondent has made a default in making the tender at the first date of hearing i.e. 25.2.2009." 5. The tenant further offered Rs,20,000/- in terms of order dated 17.1.2009 but it was not accepted by the landlady. The said proceedings are reproduced as under: "I offer to tendet Rs.20,000/- as rent till the period of August, 2009 as per order dated 17.1.2009 wider protest being excess amount. The tenant further offered Rs,20,000/- in terms of order dated 17.1.2009 but it was not accepted by the landlady. The said proceedings are reproduced as under: "I offer to tendet Rs.20,000/- as rent till the period of August, 2009 as per order dated 17.1.2009 wider protest being excess amount. Earlier I had deposited Rs,61,500/- in compliance to order dated 17.1.2009 I refuse to accept the above mentioned rent offered as the petitioners application for eviction of the respondent due to earlier short tender of rent is pending in this Honble Court and is yet to be decided." 6. The application filed by the landlady for eviction was ultimately dismissed by the learned Rent Controller by the impugned order relying upon the decision of this Court in the case of "Rajinder Kumar v. Bachan Singh", (2008-1)149 PLR 579 holding that the tenant is required to be offered another opportunity to pay the arrears of rent at the final stage of eviction and on his failure to do so, he would be held liable to ejectment. 7. Aggrieved against the said impugned order, the present revision petition is filed by the landlady in which notice of motion was issued on 13.1.2010 and in the meantime, further proceedings in the mater were ordered to be stayed. 8. Opening his submissions, learned counsel for the petitioner has argued that in view of a decision of the Supreme Court in the case of "Rakesh Wadhawan and others v. M/s Jagdamba Industrial Corporation and others", (2002-2)131 PLR 370 (SC), a Division Bench judgment of this Court in the case of "Rajan alias Raj Kumar v. Rakesh Kumar", (2010-2)158 P.L.R. 201 and also a Single Bench judgment of this Court in the case of "Sudhir Kumar v. Kuldip Singh Malhotra", 2010(2) R.L.R. 381, tenant is liable to be evicted if he does not tender the provisional rent assessed by the Rent Controller on the date fixed and the Rent Controller has no jurisdiction to extend the time for depositing the same. 9. It is also submitted by the learned counsel for the petitioner that there is a grave error in the exercise of jurisdiction by the Rent Controller in not passing the order of eviction in the event of short tender of provisional rent on the first date of hearing. 10. 9. It is also submitted by the learned counsel for the petitioner that there is a grave error in the exercise of jurisdiction by the Rent Controller in not passing the order of eviction in the event of short tender of provisional rent on the first date of hearing. 10. In reply, learned counsel for the respondent has submitted that it is not a case where no provisional rent has been tendered by the tenant on the date fixed by the Rent Controller rather it is a case where except for a meager amount, substantial amount was tendered by the tenant on the date fixed by the Rent Controller and the short tender was result of the miscalculation. He also submits that it is the obligation on the part of Rent Controller to assess the accurate amount of provisional rent, which is the liability of the tenant to tender on the date fixed by the Rent Controller and if accurate amount is not assessed leading short tender due to miscalculation, it is the fault of the Rent Controller for which the tenant should not be made liable to suffer. In support of his submissions, he has relied upon a decision of me Supreme Court in the case of "Jang Singh v. Brij Lal and others", A.I.R. 1966 Supreme Court 1631, "Umesh Chand Gandhi v. 1st Addl. Distt. & Sessions Judge", 1994(1) R.C.R. (Rent) 137, "Vinod Kumar v. Prem Lata", 2003(2) R.C.R. (Rent) 329 and C.R. No.7374 of 2010 titled as "Lambher Singh and another v. Saurav Thakur and another", and decision of this Court in the case of C.R. No.8076 of 2010 titled as "Gurpreet Singh and another v. Brijinder Bhardwaj and another", decided on 4.3.2011 11. I have heard both the learned counsel for the parties and perused the record. 12. Undisputedly, the tenant is liable to pay the entire amount of provisional rent on the date fixed by the Rent Controller and on his failure to do so he is liable to be evicted in terms of the decision of the Supreme Court in the case of Rakesh Wadhawan and others (supra), which has been clarified by this Court in the case of Rajan alias Raj Kumar (supra). It is also equally true that the Rent Controller has no jurisdiction to extend the time for depositing the provisional assessed amount of rent, if nothing is depose ited by the tenant on the date so fixed by the Rent Controller as held by this Court in the case of Sudhir Kumar (supra). But the question before this Court is as to whether the tenant is liable for ejectment in case he has deposited substantial amount of rent on the first date of hearing as assessed by the Rent Controller, which was ultimately found to be short due to his miscalculation and in that circumstance whether tenant is entitled for depositing the same, on the date to be fixed by the Rent Controller or is hable for eviction. 13. I have already held in the case of Gurpreet Singh and another (supra) that in such circumstance, the tenant is, not liable to be evicted because it is the duty of the Rent Controller to assess accurate amount of provisional rent to be tendered by the tenant The Rent Controller cannot simply say that the tenant is liable to pay 6% interest, which is otherwise provided under the Statute rather he is required to assess the amount of interest himself and thereafter give an accurate amount to the tenant by multiplying the period into the exact amount of the rent. Unless this procedure is followed and the tenant fails to pay the exact amount then the matter is altogether different and he is entitled to an opportunity from the Court on the principal of actus curiae neminem gravabit i.e. no one should be harmed because of the fault of the Court, Sensing this problem, I have already issued a direction to all the Rent Controllers in the State of Punjab, Haryana and Chandigarh to assess accurate provisional rent by first multiplying the rate of rent with the period for which it is due, by assessing the exact amount of interest besides the cost imposed and then give an accurate amount to the tenant for the purpose of tendering the rent on the date fixed by the Rent Controller so that the tenant may not have to face any hardship in case of any miscalculation leading to short tender. All the judgments relied upon by the learned Court for the respondent have already been considered by me in the case of Gurpreet Singh and another (supra) on the basis of which it has been held that there was no fault of the tenant for which he can be made liable to vacate the demised premises on the ground of short tender. 14. In view thereof, I do not find any merit in the present revision petition and the same is hereby dismissed. No costs.