Devi Darshan Singh vs Lal Chand

Mehar Singh, C.J.—This is a tenant''s revision application from the appellate order, dated May 18, 1968, of the appellate authority under the provisions of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949). The landlord let out the demised premises, a shop, in Pacca Bagh, Julluddur City, on a rental of Rs. 40/- per mensem. The condition in the rent note was that the rent was payable every month in advance. Subsequently on tenant''s application fair rent was fixed at Rs. 25/- per mensem. So the lair rent was a reduction of Rs. 15/- in regard to the contractual rent agreed to between the parties.

Subsequently the landlord sought eviction of the tenant u/s 13(2) of the Act for non payment of arrears. The tenant made a tender of the arrears with costs of the application and interest in the terms of proviso to clause (i) of sub-section (2) of section 13 of the Act but under protest. The landlord turned round and said that it was a conditional tender and thus not a valid tender. On this the appellate authority has found against the landlord. But the appellate authority has further found that even when the amount tendered is taken into consideration, it falls short by one rupee and 30 paise of the amount that should have been tendered in view of the arrears of rent due, with interest on the same, and the costs of the application in terms of proviso to clause (1) of sub section (2) of section 13 of the Act. The Learned Counsel for the tenant is unable to deny this but his argument is that this question of such deficiency cannot arise because the appellate authority has in its calculations calculated one month''s additional rent which should not have been calculated. But the appellate authority has explained that the extra one month''s tent was calculated because the rent was payable in the terms of the rent note by the tenant in advance. The Learned Counsel for the tenant is unable to deny that if the rent in fact is payable in advance then the approach of the appellate authority is unexceptional. His argument is that fair rent of the demised shop having been fixed by the Rant Controller, the original rent note ceased to have any binding force as a contract between the parties He takes the position that on the fixation of the fair rent a new relationship with new conditions of tenancy came into existence between the parties, and, therefore, under the new relationship the conditions in the original rent note for payment of advance rent every month cannot be invoked by the landlord. This to my mind is an argument which is up sound. The reason is that the order fixing the fair rent merely reduced the contractual late of rent of Rs. 40/- per mensem, to Rs. 25/- per mansum, but it did not affect the other terms of contract about the tenancy between the parties. The fixation of the fair rent did not touch the term between the parties that the rent is to be payable in advance every month. So this argument is untenable.

There is one other and the last argument for the tenant that while the eviction application, out of which the present revision application has arisen, was pending, the landlord made a second fresh eviction application against the tenant on the ground of non payment of arrears of rent In that second eviction application the Learned Counsel points out that payment in answer to the requirements of proviso to clause (i) of sub-section (2) of section 13 of the Act having been made, that application was dismissed by the Rent Controller He contends that by the dismissal of the second eviction application of the landlord, the first eviction application, out of which this revision application of the tenant has arisen, became infructuous and in this res ect he refers to my judgment in M/s Bagarian Armoury and another v. Rakht Ram 1966 Cur. L.J. ( Punj.) 862, However, the Learned Counsel for the landlord points out that in the Bagarian Armoury case in the second eviction application the landlord hid claimed the totality of the arrears covering even the arrears for the period cohered by the first eviction application and when he accepted the payment in the terms of the proviso to clause (i) of sub-section 2 of section 13 of the Act in the second application, he accepted the payment of the arrears also to which the first eviction application related and he says that the present is not such a case. In the present case although the landlord did file a second eviction application on the ground of non-payment of arrears of rent during the pendency of the first eviction application, but the second eviction application did not cover the period of arrears as covered by the first eviction application. So even if the tenant made any payment which the landlord has accepted that would not mean that the landlord gave up his claim to eviction on the first eviction application. So Bagarian Armoury''s case on facts has no application to the present case. This argument also cannot be accepted.

In consequence, this revision petition fails and is dismissed with costs, counsel fee being Rs. 80/-. The tenant is allowed one month from today within which to vacate the premises.