Bashamber Dyal vs Hans Raj

Dr. Bharat Bhushan Parsoon, J.—This civil revision petition by the tenant is directed against the concurrent findings of the Rent Controller of 1.3.2002 and of the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 (for short, "the Act") of 2.12.2003 whereby his eviction has been ordered on the ground of non-payment of arrears of rent. In this revision petition, it is claimed that the arrears of rent from 1.11.1991 to 30.11.1993 had been claimed. Assessment of provisional rent was made by the Rent Controller on 24.2.1994. Sequelly; total payment of Rs. 1,400/- i.e. Rs. 1,120/- as arrears of rent, Rs. 180/- as interest and Rs. 100/- as costs of the petition was made by the tenant to the landlord but though respondent-landlord in his application of 9.3.1994 had made request for refund of Rs. 372/- to the petitioner-tenant but in fact, the landlord had returned the entire amount of Rs. 1,400/- on 25.3.1994.

It is claimed that the first date of hearing, in fact, was to arrive only after 15 days of striking off the issues whereas no order of provisional assessment of arrears of rent, with interest and costs was passed in absence of which the tenant-petitioner had no opportunity to tender the arrears of rent. It is claimed that even otherwise, tender of rent made by the tenant earlier had been accepted by the landlord and there was no ground of nonpayment of rent left to be adjudicated.

Counsel for the respondent-landlord, on the other hand, has urged that in terms of provisions of the Act, the Rent Controller had made provisional order for payment of arrears of rent and costs on 24.2.1994 and after making payment once, the tenant had withdrawn the entire amount of tender from the landlord asserting that no payment was due to the landlord and the payment already made was illegal. It is, inter alia, contended that since there was no payment of arrears of rent in terms of the Act, there was no option with the Rent Controller but to pass order of eviction which was rightly passed by the Rent Controller and later was correctly affirmed by the Appellate Authority.

Hearing has been provided to the counsel for the parties while going through the paper book.

The respondent-landlord had sought eviction of the petitioner-tenant on the ground of arrears of rent as also on the ground of material additions and alterations diminishing the value and utility of the demised premises. Only ground of non-payment of arrears of rent had been adjudicated in favour of the respondent-landlord. The other ground was adjudicated against the landlord. Findings of the Rent Controller regarding issue of non-payment of arrears of rent were affirmed by the Appellate Authority.

Rate of rent was Rs. 207/- per month. It was averred by the landlord that electricity charges to the tune of Rs. 3/- and water charges again to the sum of Rs. 3/- whereas house tax to the tune of Rs. 1.80 Ps. per month was also payable. Arrears of rent were claimed w.e.f. 1.11.1991 to 30.11.1993. There had been an earlier litigation between the parties whereby plea of the landlord that electricity charges, water charges and house tax were part of the monthly rent in addition to the basic rent of Rs. 20/- per month, was rejected by the Rent Controller vide judgment of 5.11.1993. It was held therein that no other charges were due to the tenant except Rs. 20/- per month. Finding of the Rent Controller in the present petition was that adjudication on this issue having been made earlier on 5.11.1993 was binding on the parties as res judicata. This finding has rightly been upheld by the Appellate Authority.

In this case, a very typical situation has arisen. On 24.2.1994, in tune with the provisions of the Act, provisional assessment of payment of arrears of rent with interest and costs was made. In this order of 24.2.1994 calculating arrears of rent @ Rs. 20/- per month, rent for 40 months i.e. w.e.f. 1.11.1990 to 28.2.1994 was quantified as Rs. 1,120/-, interest thereon was assessed as Rs. 180/- whereas costs of the petition was fixed as Rs. 100/-. Sequelly, total amount of Rs. 1,400/- was provisionally held payable by the tenant. This amount was tendered by the tenant reserving his right to claim the refund of excess claimed and paid by the tenant, whereas the landlord had accepted the tender under protest on the plea that the tender was short.

Just after about two weeks i.e. on 9.3.1994, an application was moved by the landlord for refund of Rs. 372/- to the tenant on the plea that the said amount had been received by him in excess from the tenant. Instead of accepting refund of Rs. 372/-, the tenant took up a stand that the landlord had demanded and received "illegal amount" and thus, the tenant should be paid back the entire amount of Rs. 1,400/- tendered by him on 24.2.1994.

So arrogant was the attitude of the tenant that he made the landlord to pay the entire-amount of Rs. 1,400/- as was tendered by him pursuant to the provisional order of assessment of arrears of rent with interest and costs thereof. Effect of this withdrawal by him of entire amount earlier tendered by the tenant was that, in fact, there was no tender of arrears of rent left with the Rent Controller. It is apparent that the tenant instead of waiting for the adjudication to be made by the Rent Controller manifesting his obsessive and adamant attitude for seeking refund of the entire amount, whereas the landlord was only refunding Rs. 372/- out of the said total tendered amount made the landlord to pay back the entire amount of Rs. 1,400/- tendered by the tenant and the same was pocketed by the tenant, When statutorily, the tenant was to get his quantum of liability qua arrears of rent with interest and costs adjudicated to get back the excess amount tendered earlier, the tenant without waiting for the same impatiently withdrew the entire amount even before striking out the issues, thus, taking him back to a position where he was earlier to making of tender of provisional arrears of rent pursuant to orders of 24.2.1994 made by the Rent Controller. Sequelly, when final adjudication was made by the Rent Controller, the tenant was held to be in default of payment of arrears of payment of rent. Since the entire amount had been taken back by the tenant, the Rent Controller had no option but to hold that there was no payment of arrears of rent. In other words, it was not a case of making good deficiency in tender of arrears of rent where the Rent-Controller was statutorily required to give time to the tenant to make up the deficiency as per final adjudication made by it qua quantum of arrears of rent with interest and costs of the petition. It was the other way round. Consequently, the Rent Controller on 1.3.2002 had held the tenant to he in default of payment of arrears of rent having not paid such arrears with costs and interest thereon. This finding has been affirmed by the Appellate Authority on 2.12.2003.

Plea of the revisionist-tenant that payment made by him on 24.2.1994 pursuant to provisional order of assessment of rent etc. is to enure for him to save his eviction even though he had withdrawn the entire amount. This argument is not tenable. Once provisional assessment of arrears of rent payable by the tenant with interest on such payment and costs of the eviction petition had been made by the Rent Controller on 24.2.1994 which was initially-paid by the tenant but the same had been withdrawn by the tenant though the landlord was offering him only Rs. 372/- allegedly received by him in excess. There, is absolutely no reason or explanation coming forth from the revisionist-tenant as to why without waiting for the adjudication to be made by the Rent Controller, he assumed such jurisdiction to himself by holding out that the entire payment demanded and received by the landlord in pursuance to order of provisional assessment of the Rent Controller was illegal, withdrew the same. Such withdrawal having been made without any adjudication by the Rent Controller was at peril of the tenant himself. When adjudication was made by the Rent Controller, it ultimately went against the revisionist-tenant and was affirmed even by the Appellate Authority as there is, in fact, no tender of arrears of rent in terms of provisional assessment of arrears of rent with interest and costs of the petition. Going by Rakesh Wadhawan and Others Vs. Jagdamba Industrial Corporation and Others, , the day, withdrawal of entire amount tendered as, arrears of rent with interest and costs pursuant to orders of such assessment made by the Rent Controller, was arrogantly made by the tenant leaving the Rent Controller with no tender of arrears of rent on behalf of the tenant, there was no option with the Rent Controller but to order eviction of the tenant on the ground of non-payment of arrears of rent.

Keeping in view the totality of aforesaid facts and circumstances, it is held that there is no factual or legal error in the impugned order of eviction passed by the Rent Controller on 1.3.2002 and affirmed by the Appellate Authority on 2.12.2003. Sequelly, affirming the impugned orders passed by the courts below, this petition being devoid of any merit, is dismissed. The petitioner would deliver vacant possession of the premises within two months.