Labh Singh vs Shrimati Joginder Kaur and another

A.D. Koshal, J.—This petition has arisen from an application instituted on the 14th July, 1971, u/s 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) by one Rajinder Singh for eviction of the petitioner from a shop situated in the town of Patiala. Rajinder Singh claimed that the petitioner was a tenant under him in respect of that shop and sought eviction on the grounds that the petitioner had not paid the rent for the entire period subsequent to the 1st of March, 1970, and that the shop in dispute had become unsafe and unfit for human habitation. According to him, the rate of rent payable by the petitioner was Rs 5/- per mensem which was payable by the petitioner in addition to the house-tax assessed in respect of the shop

On the first date of hearing the petitioner tendered before the Controller a sum of Rs. 498/-, the break-up of which is as follows:

(i) Rent for the period from 1st December, 1970, to 31st August 1971 at the rate of Rs. 40/- p.m. Rs. 360.00

(ii) House-tax Rs. 108.00

(iii) Interest Rs. 10.00

(iv) Costs Rs. 20.00

Total Rs. Rs. 498.00

This amount was received by Rajinder Singh under protest with the plea that it did not cover the entire amount of rent and house-tax due.

In his written statement the petitioner pleaded, inter alia, that the rate of rent agreed upon was Rs. 40/- per mensem, that the rent due for the period from the 1st of March, 1970, to the 30th of November, 1970 calculated at that rate had been tendered along with costs and interest to Rajinder Singh on the first date of hearing in a previous application instituted u/s 13 of the Act on the 12 of October, 1970, by the latter, that the relationship of landlord and tenant did not exist between the parties and that the shop in dispute was neither unsafe nor unfit for human habitation.

The Controller and the Appellate Authority held that the petitioner was holding the shop in dispute as a tenant under Rajinder Singh, that the rate of rent agreed upon between the parties was Rs. 50/- per mensem, that in the earlier application brought by Rajinder Singh a sum of Rs. 360/- being rent for a period of 9 months from the 1st of March, 1970, to the 30th of November, 1970, had been tendered by the petitioner on the first date of hearing to Rajinder Singh, that the latter had not accepted the tender then because he had been restrained from doing so by an order passed by a civil court but that the amount then tendered had to be taken into consideration for the purposes of the present proceedings inasmuch as the petitioner was in no way responsible for Rajinder Singh being under a disability on account of the restraint. They further held nevertheless that if calculated at the rate of Rs. 50/- per mensem, the two tenders made by the petitioner fell short of the amount due from him. In so far as the condition of the building as concerned, it was found that the same was neither unsafe nor unfit for human habitation. The eviction of the petitioner was in the result ordered by both the Controller and the Appellate Authority on the ground of non-payment of rent. The petitioner has, therefore, come up in revision to this Court.

Rajinder Singh died during the pendency of the proceedings before the Controller and his wife and four sons who are his legal representatives were substituted for him at the trial stage and that is why they figure as landlords-respondents before me.

In my opinion this petition must succeed. That the petitioner holds the shop in dispute as a tenant under the respondents is no longer in dispute. It is also common ground between the parties that in the earlier application which was instituted of the 12th of October, 1970, Rajinder Singh himself claimed that the rate of rent agreed upon between the parties was Rs. 40/- per mensem and that it was at that rate that the petitioner tendered the rent on the first date of hearing in that case to Rajinder Singh who, however, did not accept the same by reason of an injunction passed against him by a civil court. It is further admitted on all hands that when Rajinder Singh refused to accept the rent tendered to him in that case, the petitioner deposited the amount with the Controller under the latter''s orders and that ultimately the application of Rajinder Singh was dismissed for default of appearance. And if that be so, the controversy cannot now be reopened in so far as the non-payment of rent for the period covered by that application is concerned by reason of principles analogous to those forming the basis of rule 9 of Order 9 of the CPC which lays down that where the defendant in a suit appears but the suit is dismissed for non-appearance of the plaintiff, the latter shall be precluded from bringing a fresh suit in respect of the same cause of action.

I now take up the question of payment of rent for the period from the 1st of December, 1970, to the 31st of August. 1971. The rent due for this period of nine months at the rate of Rs. 50/- per mensem works out to Rs. 411/-. The petitioner paid a sum of Rs. 360/- on account of rent and another (sic) as house-tax for that period. However, no house-tax was due from him as is now conceded by Learned Counsel for the landlords-respondents. He is therefore entitled to the adjustment of the said sum of Rs 108/- towards rent if that sum is added to the sum of Rs. 360/- which he to dered by way of rent, and the entire amount of Rs. 468/- is deemed to have been paid as rent, that sum is greater than amount of rent due. It cannot, therefore, be urged that after he had paid that sum, the petitioner was in arrears of rent to any extent. The solitary ground on which his eviction was ordered by the learned Controller and the learned Appellate Authority, therefore, becomes non-existent, even if their finding about the rate of rent being Rs. 50/ per mensem be taken as correct.

No other point has been urged before me and, for the reasons stated, the petition succeeds and is accepted. The orders passed by the learned Controller and the learned Appellate Authority are set aside and the application seeking eviction of the petitioner is dismissed. No order as to costs.