Ashwani Kumar and Another vs M/s. Amartex Industries Ltd.

Rajan Gupta, J.—Present revision petition is directed against the order dated 19.01.2012, passed by the Appellate Authority, Ludhiana, whereby it has allowed the appeal filed by respondent/tenant and remanded the case to Rent Controller for decision afresh. Learned counsel for the petitioners contends that provisional rent was assessed on 7.6.2011. Tenant having failed to pay, his ejectment was ordered on 27.7.2011. The tenant challenged the final order of ejectment before the Appellate Authority but posed no challenge to the order dated 7.6.2011 passed by the Rent Controller. The Appellate Authority allowed the appeal observing that provisional rent had not been correctly assessed and remanded the case to Rent Controller for decision afresh. According to him, order passed by the Appellate Authority is unsustainable. He has relied upon judgment reported as Vinod Kumar Vs. Prem Lata, and Rajan alias Raj Kumar Vs. Rakesh Kumar,

Mr. Behl, learned counsel for the respondent has opposed the plea. He submits the order passed by the Appellate Authority is sustainable. He relies upon judgment reported as Harjit Singh Uppal Vs. Anup Bansal,

I have heard learned counsel for the parties and given careful thought to the facts of the case. It appears that an eviction petition u/s 13 of the East Punjab Urban Rent Restriction Act was preferred by petitioners against the respondent/tenant for seeking ejectment of demised premises measuring 3400 sq. feet located in Bharat Nagar Chowk, Ludhiana.

During the pendency of ejectment petition, application was moved for assessment of provisional rent, Vide order dated 7.6.2011 trial court assessed the provisional rent as Rs. 80,850/- per month and fixed 26th July, 2011 as the date on which payment would be made. Instead of making payment, tenant moved an application for grant of further time to deposit rent. Rent Controller vide order dated 27.7.2011 directed ejectment due to non-payment of provisional rent. Aggrieved, respondent/tenant filed an appeal before the Appellate Authority at Ludhiana. Same was allowed observing that provisional rent had not been correctly assessed.

I am of the considered view that order passed by the Appellate Authority is unsustainable. Admittedly, order dated 7.6.2011, whereby provisional rent was assessed, was never challenged by the tenant. It is settled law that once tenant fails to pay the provisional rent, he is liable for eviction. In the judgment reported as Rakesh Wadhawan and Others Vs. Jagdamba Industrial Corporation and Others, the apex court observed as under:-

To sum up, our conclusions are:

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''.

The proviso to Section 13(2)(i) of East Punjab Urban 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.

Of necessity, ''the date of first hearing of the application'' would mean the date falling after the date of such order by Controller.

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.

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.

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.

The decision in Rakesh Wadhawan''s case (supra) has been affirmed by a three Judge''s Bench of the apex court in Vinod Kumar''s case (supra).

In Rajan alias Raj Kumar''s case (supra), the legal proposition has been reiterated. It has been held as follows:

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 Vs. Prem Lata, . 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) (1989-1)95 PLR 583 (S.C.), did not lay down correct proposition of law and the ratio of judgment of Rakesh Wadhawan''s case (supra) was reaffirmed.

Under the circumstances, order passed by the Appellate Authority, cannot be sustained. The Harjit Singh Uppal''s case (supra), case relied upon by the respondents cannot help case of the petitioners in view of Division bench judgment of this court in Civil Revision No. 2268 of 2008 titled Tirlok Singh Anand v. M/s. Prem Chand & Sons and others, decided on 29.05.2012. Admittedly, petitioners never posed a challenge to order dated 7.6.2011 assessing provisional rent. He, thus, made himself liable to eviction in view of ratio of Rakesh Wadhawan''s case (supra). The revision petition is, thus, allowed and the impugned order passed by the Appellate Authority is set-aside.