Ishwar Dass vs The District Food and Supplies Department, Gurgaon

On the ground that the tenant was in arrears of rent amounting to Rs. 960/- ,.from 1-3 1981 to 28-2-1983, the landlord filed an ejectment application on 1-3-1983, 13th April was the first date of hearing. The tenant deposited Rs. 960/- on 22nd April, 1983, in the Savings Bank Account of the landlord and produced the counter foil to show that although they had 15 days time to pay from 13-4-1983 i.e. the first date of hearing the arrears had already been paid. The Appellate Authority found that the rent having been paid, no eviction order can be passed on the ground of the tenant being in arrears of rent. It did not find any merit in the argument of the landlord that it was the duty of the tenant to assess the interest and costs or to make a request to the Court to assess the same. Since the Rent Controller had not assessed the interest and costs, nothing towards the same was deposited by the tenant and yet it was held by the Appellate Authority that the tenant was not to be ejected because it was the duty of the Court to assess the interest and costs. This is landlord''s revision.

Under the East Punjab Urban Rent Restriction Act, 1949(for short ''the Punjab Act''), it was the duty of the tenant to assess the interest and to deposit the same on the first date of hearing whereas the costs had to be assessed by the Court, and if assessed the tenant was to deposit the same soon after its assessment. There was deviation in this behalf in the Haryana Urban (Control of Rent and Eviction) Act, 1973(for short ''the Haryana Act''), and the duty for assessing the interest and costs was placed on the Court. This was done primarily for the reason that experience had shown that under the Punjab Act, sometimes there was a mistake of assessment of interest and the tenants were being ejected on the ground of short tender of interest. To obviate that situation, the duty to assess the interest was placed on the Court. This view I had taken in Mohan Singh v. Dina Nath 1982(1) RCJ 662.

The learned counsel appearing for the landlord has invited my attention to certain observations made by V. Gupta, J. in Badri Parshad v. Rameshwar Dass, 1985 Har Rent R 282, which are to the following effect:--

"........As a matter of fact, it was the duty of the tenant to get the interest calculated from the Rent Controller on the first date of hearing."

I have carefully gone through the judgment in Badri Parshad''s case (supra), and find that the tenant did not pay the arrears of rent, interest or costs within 15 days of the first date of hearing. The stand of the tenant was that he had already paid the rent and nothing was due. There the first date of hearing was 11-1-1978 and the Court assessed the interest and the arrears of rent on 22-3-1978 and found that Rs. 631.22 were due on these counts, and the case was adjourned to 5th April, 1978. Even on the adjourned hearing the tenant did not pay the arrears of sum and interest. A categorical finding has been recorded by l. V. Gupta, J. that the arrears of rent had to be paid by the tenant within 15 days of the first date of hearing, and since the tenant was not able to prove payment having been made earlier, he failed to comply with the proviso and, therefore, had to be ejected. On these facts, no question arose as to the effect of non-assessment of costs by the Court. Even if the costs had been assessed, the matter would not have been different because the tenant did not pay even the arrears of rent nor paid the interest, which was assessed by the Court, within 15 days of the date of assessment by the Court. Therefore, the words quoted above from the judgment of Badri Parshad''s case (supra) are clearly obiter and in any case are per incuriam.

The aforesaid conclusion of mine is apparent from the wording of the Section 13(2)(i), first proviso, of the Haryana Act, which is in the following terms :--

"Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the Controller, at eight per centum per annum on such arrears. together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid." The wording interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller shows the costs of the application, if any, would be payable, as may be allowed by the Controller. The words if any further signifies that in a given case the Rent Controller may not consider it necessary to allow costs. Therefore, it is not a matter in which tenant is not to ask the Court to assess costs because according to the Statute it is the duty of the Court and while performing that duty the Court may or may not allow the costs. However, if costs are allowed then it becomes the duty of the tenant to pay within 15 days of its assessment. My experience of cases, which came up before me has shown that sometimes the Rent Controller did not assess the costs on the first date of hearing and assessed costs on adjourned hearing. In that situation I had taken the view that the law requires the tenant to pay or tender the costs within 15 days of assessment by the Rent Controller. Therefore, I am of the opinion that stray sentence from Badri Parshad''s case (supra) 1985 HRR 282 relied upon by the counsel for the landlord is of no assistance:

For the reasons recorded above, this revision is dismissed leaving the parties to bear their own costs.

Revision dismissed.

*Against order of V. M. Jain,. Appellate Authority, Gurgaon, D/- 8-1-1986.