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2013 DIGILAW 1175 (PNJ)

Dhrinder Pal Gupta v. Jiya Lal

2013-08-30

RAKESH KUMAR GARG

body2013
Rakesh Garg, J. (Oral) - CM No. 21883-CII of 2012: For the reasons mentioned in the application which is supported by an affidavit, delay of 6 days in re-filing this appeal is condoned. CM stands disposed of. Civil Revision No. 5126 of 2012: 1. As per the averments made, the petitioner-landlord sought ejectment of the respondent-tenant from the demised premises on the ground of his being in arrears of rent since 1.7.2007 and nonpayment of house tax. The respondent-tenant admitted the relationship of landlord and tenant between the parties but disputed the rate of rent and also denied execution of any rent note as well as increase in the rent. It was alleged that the rate of rent of the demised shop was ` 800/- per month. It may further be noticed that provisional rent of the demised premises was fixed at ` 1,000/- per month and the respondent tendered the rent at the aforesaid rate upto 30.6.2008 and also paid advance rent for six months i.e. w.e.f. 1.7.2008 to 31.12.2008. The said tendering of rent was accepted by the petitioner under protest. 2. The Rent Controller vide judgment dated 24.2.2012 held that the respondent was in arrears of rent of ` 2,28,000/- approximately and was liable to be evicted on the ground of non-payment of rent. The Rent Controller granted 45 days time to the respondent-tenant to pay the arrears of rent with a stipulation that if he pays the rent within the stipulated time, the petition shall be deemed to be dismissed and in case he fails to pay the rent within the stipulated time, the petitioner-landlord shall be at liberty to seek eviction of the respondent-tenant through the process of the Court. 3. The respondent-tenant filed an appeal against the aforesaid order passed by the Rent Controller, Narwana, whereas the petitioner landlord also filed cross-objections against the concessional order of eviction. In his appeal, the respondent-tenant challenged the findings of the Rent Controller whereby it was held that he was in arrears of rent, whereas the respondent-landlord filed cross-objections challenging the order of the Rent Controller whereby the respondent-tenant was granted 45 days time to tender the arrears of rent in terms of judgment of the Hon'ble Supreme Court in Rakesh Wadhawan v. M/s. Jagdamba Industrial Corporation, : 2002 (1) R.C.R. (Rent) 514 : AIR 2002 SC 2004 : 2002 (2) RLR (S.C.) 36. 4. 4. The appellate authority vide impugned judgment dated 7.4.2012 held that the respondent-tenant was in arrears of rent and therefore, the appeal was liable to be rejected. However, he was given one more opportunity of 15 days time to make payment of rent @ ` 30,000/- per annum and in case he does not do so within 15 days, he was liable to be ejected from the demised premises immediately. 5. Feeling aggrieved from the aforesaid judgment of the appellate authority, the landlord has filed the instant revision petition, challenging the impugned order to the extent whereby the appellate authority has granted an opportunity to tender arrears of rent within 15 days from the date of order dated 7.4.2012. 6. It is the case of the petitioner-landlord that the respondent tenant having been given an opportunity by the Rent Controller, Narwana vide order dated 24.2.2012 to tender the arrears of rent and his failure to deposit the same in terms of the aforesaid order, he could not have been granted further opportunity and keeping in view the law laid down in the judgment of the Hon'ble Supreme Court in the case of Rakesh Wadhawan v. M/s. Jagdamba Industrial Corporation (supra) and Division Bench judgment of this Court in Rajan alias Raj Kumar v. Rakesh Kumar : 2010 (1) RCR (Rent) 386 : 2010 (1) RLR (Pb. & Hry.) 515, wherein it has been held that if a tenant fails to tender the rent within the stipulated period, as granted by the Court after determination of the arrears, nothing remains to be done except to pass an eviction order against him. 7. Thus, according to learned counsel for the petitioner, since the respondent-tenant has failed to deposit the arrears of rent within 45 days of the order of the Rent Controller, therefore, the appellate authority erred in law in not passing an eviction order against him and rather giving him further opportunity of 15 days to make payment of rent. 8. However, learned counsel for the respondent-tenant has vehemently supported the order passed by Appellate Authority and argued that the revision has no merit and the same is liable to be dismissed. 9. The law on the point is very well settled. It is useful to refer to the conclusion drawn by the Hon'ble Supreme Court in the case of Rakesh Wadhawan (supra) which reads thus:- 30. 9. The law on the point is very well settled. It is useful to refer to the conclusion drawn by the Hon'ble Supreme Court in the case of Rakesh Wadhawan (supra) which reads thus:- 30. 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 per cent 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. 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 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. Further it has been settled in the Division Bench judgment of this Court in Rajan alias Raj Kumar v. Rakesh Kumar (supra), that once the tenant has failed to make the tender of rent within the stipulated period granted by the Rent Controller/authority, nothing remains to be done except to pass an order of eviction. In the said case, after discussing the law laid down by the Hon'ble Supreme Court in Rakesh Wadhawan (supra) and other judgments, the Division Bench concluded as under:- 13. This Court is of the view that the ratio of judgment in Rakesh Wadhawans case (supra) leaves no manner of doubt that the provisional rent and other ancillary charges assessed by the Rent Controller had to be deposited by the tenant on the next date of hearing alongwith arrears, interest and costs etc., as may be determined by the above said authority. The first date of hearing has also been interpreted to mean, the first date of hearing after determination of provisional rent and other expenses by the Rent Controller. A reading of conclusions drawn in para No. 30 of the judgment in Rakesh Wadhawans case (supra) leaves no doubt that if after determination of the provisional rent, a tenant fails to deposit the same, nothing remains to be done and an order of ejectment of a tenant has to be passed. The language of conclusion No. 4 in the said para is very clear and needs no further interpretation. The Court is further of the view that the benefit of conclusions No. 5 and 6 would become available to a tenant only on his making a deposit of the provisional rent and other ancillary charges determined by the Rent Controller and not otherwise. It was implicitly made clear that it is the bounden duty of the tenant to deposit the provisional rent determined by the Rent Controller, otherwise it will entail the tenants ejectment from the premises in dispute. It was implicitly made clear that it is the bounden duty of the tenant to deposit the provisional rent determined by the Rent Controller, otherwise it will entail the tenants ejectment from the premises in dispute. This Court feels that if a tenant is dissatisfied with the interim order passed by the Rent Controller, he has an opportunity to challenge the same before the date fixed for payment, in the higher forum. 14. We have gone through the findings given in Rajinder Lal case (supra). We respectfully are unable to agree with the proposition of law laid down therein. The rationale of the assessment as laid down in Rakesh Wadhawans case (supra) is to be discerned from the view as expressed in para No. 29 of the said judgment because the Hon'ble Supreme Court has balanced the interests of the landlords and tenants so as to ensure that the tenants get an adequate opportunity to deposit the rent consequent upon determination of the provisional rent. Whatever may be the extent of emphasis, which have been put on the view taken in the judgment relied upon by the petitioner, this Court is bound by the conclusions arrived at by the Supreme Court in Rakesh Wadhawans case (supra) wherein it has been held that if a tenant does not comply with the order on the first date of hearing after determination of the provisional rent and other ancillary expenses by the Court, then eviction has to follow. 11. Learned counsel appearing on behalf of the respondent could not show any judgment contrary to the aforesaid judgments. 12. In view thereof, this Court is of the opinion that the order of the Appellate Authority to the extent of granting an opportunity to the respondent-tenant who, admittedly, has not deposited the arrears of the rent within 45 days, as per the order of the Rent Controller, after final determination of arrears of rent, is wrong. Thus, the same is set aside to that extent. Once that so, eviction of the respondent-tenant is automatic. Thus, in terms of the aforesaid judgments of the Hon'ble Supreme Court in Rakesh Wadhawan (supra) and of this Court in Rajan alias Raj Kumar (supra), this petition is allowed and the respondent is ordered to be evicted from the demised premises forthwith on account of non-payment of arrears of rent.