Ganesh Kumar and Others vs Smt. Surinder Kaur

Jaswant Singh, J.—Tenants are in revision u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") assailing the judgment and order of reversal dated 11.10.2002 passed by the learned Appellate Authority, Ferozepur whereby the eviction of the tenants has been ordered on the ground of non-payment of arrears of rent w.e.f. December 1988 while accepting the appeal of the landlord against the order dated 22.9.2000 passed by the learned Rent Controller, Ferozepur dismissing the ejectment petition. In brief, the facts are that the respondent-landlady filed an ejectment petition on 27.11.1998 u/s 13 of the Act seeking eviction of respondent No. 1-Ganesh Kumar from the demised premises comprising a portion of Kothi No. 58 (P), Arsonal Road, Ferozepur Cantt on the grounds of non-clearance of rent at the rate of Rs. 200/- per month since December 1988 as also subletting the premises to respondent Nos. 2 & 4.

Tenants filed a joint written statement contesting the petition and asserted that there was no subletting as respondent Nos. 2 to 4 were the brothers and sisters of respondent No. 1. It was also asserted that the rent for the claimed period stood paid, however, no receipts had been issued. The relationship of landlord and tenant was not denied.

Learned Rent Controller vide order dated 22.9.2000 dismissed the ejectment petition by returning the finding on both the aforesaid issues in favour of the tenants. Dissatisfied against the same, the respondent-landlady went in appeal and the learned Appellate Authority, Ferozepur vide order dated 11.10.2002 reversed the findings on the issue of payment of arrears of rent while affirming the findings of subletting. Learned Appellate Authority ordered the eviction by holding that merely because the landlady did not claim the arrears for the last 10 years would not lead to an inference that the rent for the said period stood paid. Accordingly, it was held that the tenants had failed to tender the rent at the rate of Rs. 200/- per month w.e.f. December 1988 and the tender with effect from 1.6.1998 to 28.2.99 being short and deficient was invalid.

Upon notice, respondent-landlady could not be served through ordinary process and was permitted to be served through substituted service by publication. In view of due publication, vide order dated 5.8.2013, the service upon the respondent-landlady was deemed to be complete but none has caused appearance on her behalf.

The short argument being raised on behalf of the petitioner-tenants is that in view of the relationship of the landlord and the tenants as also the rate of rent i.e. Rs. 200/- per month being admitted by the petitioner-tenants, learned Appellate Authority, Ferozepur was required to give one opportunity to the tenants to clear the arrears of rent before directing the handing over of the vacant possession to the landlady as per settled law by Hon''ble Supreme Court in Rakesh Wadhawan and Others Vs. Jagdamba Industrial Corporation and Others, Learned counsel for the petitioners thus, submits that the impugned order to that effect is erroneous and thus, the eviction order is bad in law.

After hearing learned counsel for the petitioners-tenants, I find that the argument is meritorious and thus, liable to be accepted. The Hon''ble Supreme Court in Rakesh Wadhawan''s case (supra) summed up its conclusion in para 30 of the judgment. With regard to giving one opportunity to the tenants to clear the arrears of rent, the relevant observation in conclusion No. 5 reads as under:

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 deficient amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction.

Thus, in view of the conceded fact that there is no dispute regarding relationship of the parties and the rate of rent in view of the aforesaid settled position, the petitioners-tenants are entitled to one opportunity to clear the arrears of rent.

Accordingly, the present revision petition is partly allowed and the impugned order dated 11.10.2002 passed by the learned Appellate Authority, Ferozepur is set aside since the eviction of the tenants has straightway been ordered on the ground of short tender of arrears of rent without giving an opportunity to the tenants to clear the claimed arrears of rent. Since the matter has been hanging fire since long instead of remanding the case before the Authorities below for doing the needful, this Court in exercise of jurisdiction u/s 15(5) of the Act permits the tenants to clear all arrears of rent at the rate of Rs. 200/- per month w.e.f. December 1988 within two months w.e.f. from today.