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2012 DIGILAW 143 (PNJ)

Chand Kumar Ahuja v. Gurdarshan Singh Gill

2012-01-24

RAKESH KUMAR JAIN

body2012
Rakesh Kumar Jain, J.;— This revision petition is filed by the landlord under Article 227 of the Constitution of India for the issuance of a direction to the Rent Controller, Bathinda to pass order of eviction against the tenant in terms of the decision of the Supreme Court in the case of Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation, 2002(1) R.C.R. (Rent) 514. In brief, the landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] in respect of the demised premises comprising of approximately 9826 Sq. ft. space, situated in Street No.6, Nai Basti, Bathinda which was initially let out @ `39,000/- per month upto 31.08.2001 and thereafter, with the periodical increase of 10%, the present rate of rent is `57,099/- per month. The eviction has been sought on the ground of non-payment of arrears of rent w.e.f. 01.12.2002 to 28.12.2005. The learned Rent Controller assessed the provisional rent on 07.04.2006 amounting to `15,73,931.85/- which was ordered to be paid on the next date of hearing, i.e. 21.04.2006. The tenant challenged the said order by way of CR-2169-2006 titled as `Gurdarshan Singh Gill Vs. Chand Kumar Ahuja' which was dismissed on 21.04.2006. The operative part of the order reads as under: “The order of ejectment can be passed after granting reasonable opportunity of hearing to the tenant as contemplated under Section 13(2) of the Punjab Urban Rent Restriction Act, 1949. It is so held in Civil Revision No.3020 of 2003 titled as `Rajinder Lal Vs. Gopal Krishan' decided on 31.03.2006.” Since the Rent Controller had adjourned the case for 21.04.2006 for tender of rent but the CR-2169-2006 filed by the tenant was also decided by this Court on 21.04.2006 , therefore, learned counsel for the tenant made a request before the Rent Controller for extension of time. Accordingly, the matter was adjourned by the Rent Controller for 29.04.2006 for the same purpose. The order passed by the Rent Controller on 21.04.2006 reads as under: “An application for grant of adjournment to produce the order of Hon'ble High Court filed. The application is supported by an affidavit of the respondent. In view of the averments made in the application as well as affidavit, I deem it proper to wait for order of the Hon'ble High Court before proceeding further. The application is supported by an affidavit of the respondent. In view of the averments made in the application as well as affidavit, I deem it proper to wait for order of the Hon'ble High Court before proceeding further. Now to come up on 29.04.2006 for awaiting order from the Hon'ble High Court. The counsel for the respondent has also alleged in the application as well as in the affidavit and has made request also to the Court that the respondent wants to tender the rent. Tender proposed to be tendered today, is not in accordance with the order passed by this Court on 07.04.2006. The respondent will be allowed only to tender the rent after the receipt of the order of Hon'ble High Court.” After dismissal of the CR-2169-2006 against the order dated 07.04.2006, the tenant was supposed to tender the rent as assessed by the learned Rent Controller. However, on 29.04.2006, no rent was tendered and the case was adjourned to 06.05.2006. The order passed by the learned Rent Controller on 29.04.2006 reads as under: “No order from Hon'ble High Court received. Be awaited till 06.05.2006.” On the adjourned date, the tenant failed to comply with the order dated 07.04.2006 because only a sum of `36,260/- was tendered instead of `15,73,931.25/-. On 06.05.2006, the learned Rent Controller passed the following order: “The counsel for the respondent has produced the photocopy of the order dated 21.04.2006 passed by the Hon'ble High Court in Civil Revision No.2169 of 2006, along with photocopy of the judgment passed in Civil Revision No.3020 of 2003. The respondent in view of his application dated 21.04.2006, is allowed to tender the rent. The respondent has made the statement and tendered the rent amounting to Rs.36,260/- in total. The counsel for the applicant has made the statement and received the tender under protest. Now to come up for arguments on the validity of the tender and the compliance of the order dated 07.04.2006 for 09.05.2006.” The landlord was aggrieved against the proceedings of the Rent Controller, who inspite of passing an order of eviction in terms of the decision of the Supreme Court in Rakesh Wadhawan's case (supra), had adjourned the case for arguments on the validity of the tender, therefore, he filed the present revision petition in this Court which was admitted on 23.10.2006. Thereafter, the Rent Controller passed an order on 27.10.2006, the operative part of which reads as under: “The ratio of these judgments is applicable to the facts of this case, but in this very rent application, the Hon'ble High Court has apposed a specific order by way of Civil Revision No.3020 of 2003 that the order of ejectment can be passed after granting reasonable opportunity of hearing to the tenant. In view of the reasons and circumstances, the question of the validity of the tender is kept open and will be declared at the time of final adjudication after giving opportunity to the tenant to file written statement and after leading the evidence. Now come up for filing written statement and arguments on the application filed by the tenant to deposit the tentative rent from 01.12.2006 to 30.11.2009. The application for deciding the question of the validity of tender has become infructuous and is dismissed. To come up on 10.11.2006 for the said purpose.” It requires pertinent notice that against the order dated 27.10.2006, the landlord had filed CR-720-2007 in which the following order was passed on 08.02.2007: “After arguing the case for some time, the learned counsel for the petitioner wishes to withdraw the present petition. However, the learned counsel for the petitioner states that since the matter is pending for a considerable period before the Rent Controller, therefore, the Rent Controller be directed to decide the ejectment petition expeditiously. In view of the statement made by the learned counsel for the petitioner, the present petition is dismissed as withdrawn. However, the Rent Controller is directed to decide the ejectment petition within a period of one year from the date a certified copy of this order is received. A copy of the order be given dasti on payment of usual charges.” After disposal of the aforesaid CR-720-2007, the petitionerlandlord has filed an application bearing CM-13585-CII-2011 for disposal of the present revision petition on the basis of a latest judgment of this Court in the case of Rajan alias Raj Kumar v. Rakesh Kumar, 2010(1) R.C.R. (Rent) 386. Notice in the application was issued on 25.05.2011. On 04.08.2011, the following order was passed by this Court: “Learned counsel for the parties have no objection, if the main case is heard with civil miscellaneous application in Kacha Peshi. Ordered accordingly. Notice in the application was issued on 25.05.2011. On 04.08.2011, the following order was passed by this Court: “Learned counsel for the parties have no objection, if the main case is heard with civil miscellaneous application in Kacha Peshi. Ordered accordingly. Let the main case be listed along with civil miscellaneous application on 06.09.2011.” On 08.11.2011, the following order was passed by this Court: “Let the Civil Revision No.720 of 2007 be attached with this petition. List on 21.11.2011. To be shown in the urgent list.” There is no dispute that the landlord has filed the petition for eviction on the ground of non-payment of arrears of rent. The Rent Controller, vide his order dated 07.04.2006, had assessed the provisional rent amounting to `15,73,931.85/-. The tenant had challenged the said order by way of filing CR-2169-2006 which was dismissed but there was a reference of CR-3020-2003 titled as `Rajinder Lal Vs. Gopal Krishan' as per which the order of ejectment can be passed by the Rent Controller after granting reasonable opportunity of hearing to the tenant as contemplated under Section 13(2) of the Act. The landlord was aggrieved because the tenant did not tender the rent even after the order dated 21.04.2006 and the Rent Controller had proceeded with the trial and again relied upon the order passed in CR-3020-2003 while passing the order dated 27.10.2006. Shri Rajiv Kataria, learned counsel appearing on behalf of the petitioner, has contended that the learned Rent Controller has committed a patent error of law while not passing the order of eviction immediately on the failure of the tenant in tendering the provisionally assessed rent on the first date of hearing. He referred to a Division Bench judgment of this Court in which reference was made on account of conflicting views of two Single Benches of this Court. He referred to a Division Bench judgment of this Court in which reference was made on account of conflicting views of two Single Benches of this Court. One view was taken in the case of Rajinder Lal v. Gopal Krishan, 2006(1) R.C.R. (Rent) 438 in which it has been held that if the tenant fails to pay the arrears of provisional rent assessed by the Rent Controller, an opportunity for regular trial has to be given to the tenant and the other view was taken in the case of Madan Lal and another v. Baldev Raj, 2004(2) R.C.R. (Rent) 93 in which it has been held that if the tenant fails to pay the provisional rent assessed by the Rent Controller on the first date of hearing, the order of ejectment is to follow and nothing more is required to be done by the Rent Controller. While deciding the reference, the Division Bench of this Court in Rajan alias Raj Kumar's case (supra), has held that the view expressed by the learned Single Judge in Rajinder Lal's case (supra) was not a correct view and the view taken in Madan Lal and another's case (supra) was approved. Meaning thereby, the order passed by this Court in CR-2169-2006 while making a reference of CR-3020-2003 in Rajinder Lal's case (supra), was an incorrect view. Similarly, the view expressed by the Rent Controller in his order dated 27.10.2006, which was also based upon the order passed by this Court in Rajinder Lal's case (supra) cannot be approved. It is, thus, submitted that since the tenant has failed to pay the provisionally assessed rent on the first date of hearing without any reasonable cause, there was no option with the Rent Controller but to pass an order of eviction. In reply, learned counsel for the tenant has argued that the rent according to the tenant was @ `500/- per month which was ordered to be paid tentatively by the learned Rent Controller vide his order dated 27.10.2006 for the period w.e.f. 01.12.2006 to 31.12.2009. Accordingly, the tenant had paid `36,260/- instead of `15,73,931.85/-, which has been so claimed and provisionally assessed by the learned Rent Controller. I have heard both the learned counsel for the parties and perused the record with their able assistance. Accordingly, the tenant had paid `36,260/- instead of `15,73,931.85/-, which has been so claimed and provisionally assessed by the learned Rent Controller. I have heard both the learned counsel for the parties and perused the record with their able assistance. In this case, admittedly, the provisional rent was assessed on 07.04.2006 to the tune of `15,73,931.85/- which was not tendered by the tenant on the first date of hearing. The decision of this Court in Rajinder Lal's case (supra), which has been repeatedly relied upon by this Court in CR-2169-2006 and the learned Rent Controller in its order dated 27.10.2006, has already been held to be an incorrect view which is not to be followed, whereas the view expressed in Madan Lal and another's case (supra), according to which in case of non-payment of rent by the tenant on the first date of hearing, the learned Rent Controller has to pass only the order of eviction of the tenant and nothing more is required to be done, was found to be a correct view. In view of the aforesaid discussion, the present revision petition is found to be meritorious and hence, the same is hereby allowed and the learned Rent Controller is directed to pass an order of eviction against the tenant on account of non-payment of provisionally assessed rent on the first date of hearing in terms of the Division Bench judgment of this Court in Rajan alias Raj Kumar's case (supra).