Anup Bansal vs Harjit Singh Uppal

Vinod K. Sharma, J.—This revision petition is directed against the order dated 10.6.2010 passed by the learned Appellate Authority,

S.A.S. Nagar (Mohali), vide which the appeal filed by the Respondent-tenant against his order of eviction has been allowed, and the case

remanded back to the learned Rent Controller for assessment of provisional rent afresh.

The facts which are not in dispute are, that the Petitioner-landlord, filed a petition for eviction of the Respondent-tenant on the ground of non-

payment of rent.

The learned Rent Controller, in view of the law laid down by the Hon''ble Supreme Court in Rakesh Wadhawan and Others Vs. Jagdamba

Industrial Corporation and Others, assessed the provisional rent vide order dated 11.6.2009. The Respondent-tenant was given an opportunity to

pay the provisional rent along with costs and interest as assessed by 18.7.2009.

The Respondent-tenant did not comply with the order of payment of provisional rent and chose to move an application for transfer of the case

from the Court of learned Rent Controller by filing a transfer application before the Learned District Judge. The application was dismissed on

2.9.2009.

Even though, it was obligatory for the learned Rent Controller to pass an order of eviction of the Petitioner on 18.7.2009, as the Petitioner had

failed to comply with the order, directing payment of provisional rent. The learned Rent Controller, keeping in view the application moved for

transfer of the case, chose not to pass the order of eviction.

The Respondent-tenant, thereafter also chose not to deposit the provisional rent, and moved application for recall of the order dated 11.6.2009

along with two other applications, with an object to delay the payment of rent. As per settled law, 18.7.2009 was to be treated as first date of

hearing.

The applications were dismissed by the learned Rent Controller, by recording that'' the tenant was trying to delay the proceedings, to avoid

payment of rent assessed.

As the Respondent-tenant failed to pay the provisional rent as assessed, nor he chose to challenge the order passed by the learned Rent

Controller on 11.6.2009, the learned Rent Controller finally ordered the eviction of the Respondent-tenant vide order dated 7.4.2010 on fee

ground of non-payment of rent.

It is pertinent to notice here, that the Respondent-tenant, till the passing of the order of eviction, chose not to challenge the order of provisional

rent, in spite of the opportunities given to him, by extending the time for payment of provisional rent.

The appeal filed by the Respondent-tenant was allowed by the learned Appellate Authority by recording that the learned Rent Controller,

while assessing the provisional rent had not taken into consideration certain payments, alleged to have been made, to the Petitioner-landlord

towards rent.

The learned Appellate Authority also took note of the fact, that loan advanced was claimed as rent, therefore, the order being prima facie not

sustainable, was ordered to be set aside, and the case remanded back to the learned Rent Controller for re-assess the provisional rent.

The learned Counsel for the Petitioner challenged the impugned order passed by the learned Appellate Authority primarily on the ground, that

it was not open to the learned Appellate Authority, to go into the merits of the controversy, as on non-payment of provisional rent, as assessed, the

tenant was to be evicted straightway, without proceeding any further.

In support of this contention, the learned Counsel for the Petitioner placed reliance on the decision of Hon''ble Division Bench judgment of this

Court in Rajan alias Raj Kumar Vs. Rakesh Kumar, , wherein the Hon''ble Division Bench was pleased to lay down as under:

The view taken in Rakesh Wadhawan''s case (supra) was reiterated by a three Judges Bench of the Hon''ble Supreme Court in Vinod Kumar

v. Prem Lata 2003 H.R.R. 699. The afore said case was disposed of by the Hon''ble Supreme Court by making a reference to the ratio of earlier

judgment of the Hon''ble Supreme Court in Rakesh Wadhawan''s case (supra). Thereafter a review application was moved, wherein it was

contended that when the judgment was passed in the above said case, two earlier decisions of the Hon''ble Supreme Court in Rajinder Kumar

Joshi Vs. Veena Rani, and Rubber House Vs. Excellsior Needle Industries Pvt. Ltd., were, not taken into consideration. A three Judge Bench of

the Hon''ble Supreme Court in Vinod Kumar''s case (supra) held that the judgments in the cases of Rajinder Kumar Joshi''s case (supra) and

Rubber House''s case (supra) did not lay down correct proposition of law and the ratio of judgment of Rakesh Wadhawan''s case (supra) was

reaffirmed.

Learned Counsel for the tenant-Petitioner Mr. Mittal tried to contend that the view taken by learned Single Judge in Rajinder Lal Vs. Gopal

Krishan, , is the correct interpretation of law laid down in Rakesh wadhawan''s case by the Supreme Court.

This Court is of the view that the ratio of judgment in Rakesh Wadhawan''s 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 along with 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, me 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 Wadhawan''s 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 tenant''s 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.

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 Wadhawn''s 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 Wadhawan''s 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.

Mr. Mittal, learned Counsel for the Petitioner further urged that provisional assessment order may put the tenant at a great disadvantage in case

the said assessment order is exorbitant and extortionate. We need not to go into that issue because the provisional assessment order dated

18.09.2004 in the present case clearly shows that rent deed had been signed for Rs. 2800/- per month which amount has been provisionally

determined as rent by the Rent Controller for the shop rented by the Petitioner and the only defence of the Petitioner was that this rent deed was

secured by fraud under police pressure. The above plea of the Petitioner does not have any merit as no contemporaneous complaint to that effect

was made.

It was also the contention of the learned Counsel for the Petitioner, by referring to the Hon''ble Division Bench judgment of this Court in Rajan

alias Raj Kumar v. Rakesh Kumar (supra), that remedy of challenging the order of provisional rent with the Respondent was within the period of

assessment of provisional rent and date fixed for payment of provisional rent, once this was not done, then the learned Rent Controller had no

other option, but to order eviction of the tenant.

It is required to be noticed here, that even though the learned Rent Controller showed latitude to the Respondent-tenant by giving him

extension of time to deposit the provisional rent, but the Respondent tenant did not avail the remedy by challenging the order of provisional rent,

rather the tenant waited till the order of eviction was passed.

Challenge to the fixation of provisional rent by me tenant could have been done after the deposit of the provisional rent as fixed, as it was open

to the tenant to, thereafter contest the provisional rent/rent claimed. The learned Rent Controller was thereafter to decide the case on appreciation

of evidence as to whether rent as assessed was payable or not and thereafter to pass a final assessment before finally passing the order of eviction,

by giving opportunity to the tenant to make payment/or direct the landlord to refund the amount.

As already observed above, It was not open to the learned Appellate Authority to go into the merits of the case, as the Respondent had not

chosen to challenge the impugned order during the time fixed by the learned Rent Controller.

This Court being bound by the decision of the Hon''ble Division Bench of this Court, has no alternative but to accept the revision petition, as

the Petitioner did not avail his remedy to challenge the order fixing provisional rent, during the period between the date of order and date fixed for

payment. The Respondent-tenant could object to provisional rent also by deposit. The learned Rent Controller then was to allow the parties to

lead evidence and record a finding thereon. In absence of finding by the learned Rent Controller, the Appellate Authority could not have reversed

the finding qua provisional rent.

The order of the learned Appellate Authority, therefore, is set aside and that of the Learned Rent Controller is restored, but with no order as to

costs.