Joginder Pal vs Smt. Vidyawanti

V.S. Aggarwal, J.—This is a revision petition filed by Joginder Pal (hereinafter described as ''the petitioner'') directed against the judgment of the Appellate Authority, Rohtak dated September 18, 1997. By virtue of the impugned judgment, the learned Appellate Authority had set aside the order-passed by the learned Rent Controller dated October, 17, 1994. An order of eviction was passed against the petitioner giving the petitioner two months'' time to vacate the property.

The relevant facts are that respondent Smt. Vidya Wanti had filed an application for ejectment against the petitioner with respect to the property in dispute. The grounds of eviction taken were that petitioner has not paid the arrears of rent with effect from February 1985, has materially impaired the value and utility of the premises in dispute and also has made alterations without the permission of the landlord. It had also been alleged that petitioner had occupied a residential quarter and is liable to be evicted. The petitioner-tenant contested the petition. In the written statement filed, it was asserted that the respondent had filed a similar application on the same grounds, which was dismissed by the Rent Controller cm May 31, 1991. The appeal against the said order was dismissed by the Appellate Authority. The second application was stated to be not maintainable. According to the petitioner, agreed rate of rent was not Rs. 700/- per month, but was Rs. 300/- per month. The house tax was not to be paid by the petitioner. It was denied that arrears claimed were due. The petitioner pointed that he tendered the rent from August 1, 1991 to February 28, 1993 at the rate of Rs. 300/- per month along with interest of Rs. 300/- and cost of Rs. 100/- assessed by the court on February 2, 1993. The respondent-landlord refused to accept the same. The petition, therefore, deserves to be dismissed.

Before the learned Rent Controller, the respondent had given up all other grounds of eviction except the ground of non-payment of rent. It had been alleged that the tender made by the petitioner was short and that it had not been made within the stipulated period. In this regard, an issue was framed. The learned Rent Controller held that agreed rent was Rs. 300/- per month and that the arrears of rent were tendered within 15 days, as contemplated u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, from the first date of hearing and, therefore, the ground of eviction did not subsist. Accordingly, the eviction application was dismissed. Aggrieved by the same, the respondent had preferred an appeal. The learned Appellate Authority set aside the order of the learned Rent Controller and held that within 15 days of the first date of hearing, after the petitioner had been served, the arrears of rent had not been tendered. It was held that the petitioner had been served much before February 2, 1993 when tender of rent was effected and it is in this backdrop that the findings returned were, as mentioned above that rent had not been paid within 15 days of the first date of hearing and an order of eviction, therefore, was passed. Aggrieved by the same, the present revision petition has been filed.

Learned counsel for the petitioner argued that the 15 days has to be counted from the first date of hearing when the rent controller applied his mind and the cost as well as the interest were calculated, it could not have been counted, if at all, from the date of the service on the petitioner. As against this, the assertion of the respondent''s counsel was that the petitioner had been served for November 12, 1992. The power of Attorney of the counsel was filed. Thus, 15 days has to be counted from that date and the order of eviction was rightly passed.

At the outset, it can well be mentioned that certain findings of fact arrived at by the Authorities under the Act cannot be disturbed. The same were that agreed rent is Rs. 300/- per month and that the arrears were due as stated by the tenant-petitioner. It has also been recorded as a fact that the petitioner was served for November 12, 1992. The lawyer of the petitioner has filed a Power of Attorney. The rent was tendered only on February 03, 1993. These findings are based on evidence. This court will not upset those findings, unless the same are erroneous, absurd or have been arrived at by misreading of the evidence. There is no illegality or impropriety in the said findings. With these findings of fact, so arrived at the short question that comes up for consideration is as to if there is a valid tender of rent within 15 days of the first date of hearing. Section 13(2) (i) contemplates the said ground of eviction under the Haryana Urban (Control of Rent and Eviction), Act, 1973 and reads as under :--

"Section 13 (2) (i): that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable

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 or 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 :

Provided further that the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately preceding the date of application under the provisions of this Act."

It is abundantly clear from the reproduced ground of eviction that with respect to the tender of rent, it is mandatory that it should be so made within 15 days of the first date of hearing of the application for ejectment after due service. It should be accompanied by the interest to be calculated by the Controller at the rate of 8% per annum together with cost of the application allowed by the Controller, otherwise it will be taken to be a default making the ground of eviction available.

The factual position in this regard is that respondent filed the petition for eviction asserting that petitioner is in arrears of rent since February, 1985 at the rate of Rs. 700/- per month and at the rate of Rs. 400/- per month from March 198? to July 31, 1991. The assertions were denied. The ejectment application had been filed by the respondent on August 6, 1992. It was taken up for consideration by the learned Rent Controller on August 7, 1992. The petitioner was ordered to be summoned for November 12, 1992. On the said date, the summons were again issued for January 27, 1993. The learned Controller took up the file on January 15, 1993 and adjourned to February 2, 1993. On January 29, 1993 the Controller had passed an order that counsel for the petitioner has appeared. The case was adjourned to February 2, 1993 for assessment of rent. On February 2, 1993, the Rent Controller had passed the following order :--

"Present: Shri K.L. Malhotra, Advocate for the petitioner.

Shri N.N. Girotra for the respondent.

Learned counsel for the respondent has tendered a sum of Rs. 6180/- which includes arrears of rent amount to Rs. 5700/- from 1-8-1991 to 28-2-1993 at the rate of Rs. 300/- p.m., Interest amounting to Rs. 300/- and costs Rs. 100/-. However, the learned counsel for the petitioner has refused to accept this amount on the ground that the tender is not complete as well the time is beyond the stipulated period. An application has also been moved by the petitioner. Now to come up on 16-3-93 for filing of reply to the petition as well as the application.

Sd/- R.C. 2-2-93"

In other words, within 15 days of the service that was relied to have been effected for November 12, 1992, the rent had not been tendered, but it was tendered within 15 days of the next date of hearing that had been fixed. Needless to state that the interest and the cost were only calculated on February 2, 1993.

On behalf of the respondent, strong reliance was placed on the decision of the Supreme Court in the case of Rubber House Vs. Excellsior Needle Industries Pvt. Ltd., . Relying on the said decision, it was urged that it is not necessary that interest and cost must be calculated and rent must be tendered. It is not statutory duty cast on the Rent Controller, in the first instance to determine and calculate the arrears of rent and the interest. However, the facts of the cited case necessarily assume importance. It had been held in that case that on the date fixed, which was December 5, 1977, the total amount due from him at the rate of Rs. 950/- per month from April 1, 1975 to May 31, 1977 was Rs. 24,700/-. Out of it Rs. 21, 696 had already been paid. The tenant failed to prove this fact. He failed to prove the payment of arrears of rent and, thus, was liable to be evicted. It was in this backdrop of facts that the Supreme Court held (at p. 1164 of AIR):--

"After a careful scrutiny of Section 13 (2) (i) and the first proviso annexed thereto, we see no force in the submissions of the learned counsel that there is any statutory duty cast on the Rent Controller even in the first instance to determine and calculate the arrears of rent and the interest but on the contrary the proviso requires the tenant to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service along with the 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. What the proviso requires is that the Controller has to calculate the interest at 8 per cent per annum on such arrears of rent and determine the costs of the application, if any. If the argument of the learned counsel is to be accepted then in every case the Rent Controller has to hold an enquiry at the first instance and determine the arrears of rent even on the first date of hearing which is in the nature of things not possible without any evidence, nor is it contemplated under the scheme of the Act. When there is a statutory obligation on the tenant either to pay or tender the arrears of rent within a period of fifteen days of the first hearing of the application for ejectment after due notice it is for him to calculate the exact arrears of rent due and to pay or tender the same and if the tenant fails to do so he is deemed to have not paid or made the valid tender of the rent. Hence we hold that this argument advanced on behalf of the appellant is misconceived and fallacious."

The cited decision, therefore, which runs with the facts of that case clearly shows that in the cited case there was no proper tender of rent, the tenant failed to prove the payment which he had alleged. In that backdrop, assertion that rent and cost had not been calculated lost importance, hence the order of eviction was upheld. That is not so in the present case. Consequently, the cited case will not come to rescue of the respondent.

In this regard, on the contrary, reference may be made with advantage to the decision of the Supreme Court in the case of Sham Lal (Dead) by Lrs. Vs. Atme Nand Jain Sabha (Regd.), Dal Bazar, . The question for consideration was as to what would be the meaning of the first date of hearing. This was a decision under East Punjab Urban Rent Restriction Act, 1949. The language with respect to the ground of non-payment of rent is pari materia with that of Haryana Act. Therefore, the ratio of the cited case is applicable. It was recorded that first date of hearing does not mean the date fixed for the return of the summons, but the date, the court applies its mind to the case. The Supreme Court in the case of Sham Lal (supra) held (at pp. 200-201 of AIR) :-

"It was tried to be contended that these decisions being rendered in connection with the ''suit'' cannot be taken into consideration in the case of a ''proceeding'' before the Rent Controller. We do not find any substance in this contention which seeks to draw a distinction without a difference in substance. It is appropriate to point out in this connection that the object of the East Punjab Urban Rent Restriction Act as stated in the preamble to the Act is to restrict the increase of rent of certain premises situated within the limits of urban areas and eviction of tenants therefrom. From the objects of this Act it is abundantly clear that this Act was enacted with the object of affording protection to the tenants against arbitrary increase of rent of certain premises within the limits of urban areas as well as from eviction of the tenants from the rented premises. In this context, it is imperative that the words "the first hearing of the application" have to be interpreted in a manner which promote the object of this beneficial legislation. Viewed from this aspect we cannot but hold that the words, "first hearing of the application" as used in proviso (i) to Sub- section (2) of Section 13 of the said Act does not mean the day fixed for return of the summons or the returnable day but the day when the Court applies its mind to the case."

In view of the decision in the case of Shamlal (supra), it is obvious that the date fixed for return of summons cannot be taken as first date of hearing. If the court had not applied its mind on the said date and then by no stretch of imagination that date cannot be termed as first date of hearing when no cost or interest, which has to be calculated by the Court, were calculated. The position herein is identical. Though, as held by the Appellate Authority, the findings were that the petitioner was served for November 12, 1992, but on that date, the Rent Controller did not apply his mind and he adjourned the case for fresh summons returnable on January 27, 1993. The cost and interest were not calculated. The petitioner was not even proceeded ex parte. It is obvious that in routine manner, it was adjourned. The Rent Controller did not take up the matter to assess as to what would be the cost and interest so that there could be termed that the rent could be tendered. Consequently, the said date cannot be taken as the first date of hearing. On the following date, the appearance was put in on January 27, 1993 and it was adjourned to February 2, 1993. On that date the arrears that were due were tendered. It is clear that the rent had been tendered within 15 days when the Rent Controller applied his mind and adjourned the case for assessment of rent. Consequently, there was compliance of the relevant provisions of Section 13 of Haryana Urban (Control of Rent and Eviction) Act, 1973 and rent had been tendered within 15 days. The ground of eviction did not subsist. In these circumstances, the order passed by the learned appellate authority cannot be sustained.

As a result of the reasons given above, the revision petition is accepted. The order of eviction so passed is set aside, instead the petition for eviction is dismissed.