Luxmi vs Sushila Kumari

Ajay Kumar Mittal, J.—The tenant-petitioner has approached this Court u/s 15(5) of the East Punjab Urban Restriction Act, 1949 (in short

the Act"") by way of instant revision petition impugning order dated 18.10.2003 passed by the appellate authority whereby she was ordered to be

evicted on the ground of non-payment of rent u/s 13(2)(i) of the Act. The landlady-respondent who was owner of the shop in dispute and the

petitioner was a tenant under her at a monthly rent of Rs. 900/- per month, filed a petition for ejectment of the tenant-petitioner from the demised

premises on two grounds, namely, (i) non-payment of arrears of rent from December, 1995, and (ii) the shop in dispute was required for her

personal necessity. The tenant-petitioner filed reply to the ejectment petition pleading that she was tenant at a monthly rent of Rs. 350/- per month

and not Rs. 900/-. She had sent Rs. 700/- to the respondent as rent for the months of June and July 2001 through money order but she refused to

accept the said money order. According to the tenant, there was another shop which was previously in his possession and she left the said shop in

the year 1998 and in lieu of that shop, the tenant was given the shop in question on rent @ Rs. 350/- per month. The other averments made in the

petition were denied and a prayer for dismissal of the ejectment petition was made. From the pleadings of the parties, the Rent Controller framed

the following issues:--

Whether respondent is tenant under the petitioner @ Rs. 900/- p.m.? OPA

Whether respondent is in arrears of rent from December, 1995? OPA

Whether applicant requires the shop in dispute for her own use and occupation? OPA

Whether the application is not maintainable? OPR

Relief.

The Rent Controller on appreciation of evidence led by the parties while adjudicating issue No. 1 came to the conclusion that the rate of rent of

the demised premises was Rs. 350/- per month and decided the issue in favour of the tenant and against the landlady. While deciding issue No. 2

against the landlady, it was recorded that the assertion of the landlady that the rent was not paid from December, 1995 to October, 1998 was not

acceptable and the tender of rent by the tenant from November 1998 to May 2001, when she appeared through a counsel on 22.5.2001

amounting to Rs. 12,250/- (Rs. 10,850/- on account of rent @ Rs. 350/- per month for 31 months, Rs. 868/- as interest and Rs. 500/- as costs)

Rs. 32/- in excess was paid. However, as no evidence was led by the landlady regarding the requirement of shop in dispute for her own use and

occupation, issue No. 3 was decided against her. Under issue No. 4, the petition was held to be maintainable as no arguments were addressed by

the parties on the said issue. Accordingly, the Rent Controller vide judgment dated 23.5.2003, dismissed the ejectment petition.

Feeling aggrieved by the order dated 23.5.2003 passed by the Rent Controller, the landlady filed an appeal before the appellate authority.

However, the appellate authority, while affirming the findings on issues No. 1, 3 and 4 reversed the findings on issue No. 2 and came to the

conclusion that the onus under the said issue was upon the tenant to establish that she had paid the rent from December, 1995 to October, 1998

and she having failed to do so, as a necessary consequence was liable to be evicted. Accordingly, the order of eviction was passed by the

appellate authority vide judgment dated 18.10.2003. The tenant feeling aggrieved by the eviction order passed by the appellate authority has

approached this Court by way of instant revision petition.

Learned counsel for the tenant-petitioner submitted that the Hon''ble Apex Court in Rakesh Wadhawan and Others Vs. Jagdamba Industrial

Corporation and Others, has laid down that the arrears of rent were required to be assessed by the appellate authority which would include the

arrears of rent, interest @ 6% per annum on such arrears together with the cost of the application and thereafter provide an opportunity to the

tenant to clear the outstanding and the same having not been done, the order passed by the appellate authority is legally unsustainable.

Inspite of service, none had appeared on behalf of the respondent to contest the revision petition.

After hearing learned counsel for the petitioner, I find merit in this submission.

The Hon''ble Apex Court in Rakesh Wadhawan''s case (supra) had concluded as under:--

In Section 13(2)(i) proviso, the words ''assessed by the Controller'' qualify not merely the words ''the cost of application'' but the entire

preceding part of the sentence i.e. ""the arrears of rent and interest at six percent per annum on such arrears together with the cost of application''.

The proviso to Section 13(2)(i) of East Punjab Urban Restriction Act, 1949 casts an obligation on the Controller to make an assessment of (i)

arrears of rent (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the

amount which the tenant must pay or tender on the ''first date of hearing'' after the passing of such order of ''assessment'' by the Controller so as to

satisfy the requirement of the proviso.

Of necessity, ''the date of first hearing of the application'' would mean the date falling after the date of such order by Controller.

On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the

inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and

the tenant before the Controller.

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

While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into

consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month

during the pendency of the proceedings.

The view of the law so taken by us advances the object sought to be achieved by the legislation, serves best the interests of landlord and tenant

both, removes uncertainty in litigation and obscurity in drafting of the provision and also accords with the principles of justice and equity. Even if, it

is an innovation, it is in the field of procedural law, without affecting the substantive rights and obligations of the landlord and the tenant and such

innovation is permissible on the basis of authority and supported by principles of justice, good sense and reason. We have not touched the

substantive rights of landlord and tenant, and are feeling satisfied with a do little in the field of procedure so as to effectuate the purpose of

enactment.

Thus, the appellate authority while reversing the finding recorded by the Rent Controller and holding that the rent was outstanding from

December, 1995 to October, 1998, was required to assess the arrears of rent along with interest and costs in terms of the judgment in Rakesh

Wadhawan''s case (supra) and thereafter, provide an opportunity to the tenant to pay the amount to the landlady. Having failed to do so, the

judgment of the appellate authority is legally unsustainable.

Learned counsel for the petitioner submitted that in view of order dated 13.1.2004 passed by this Court, whereby the dispossession of the

petitioner-tenant was stayed subject to deposit of arrears of rent within two months and deposit of the future monthly rent by 10th of each month,

the said order was being complied with meticulously by the petitioner and he has paid the arrears of rent upto date. However, there is no

representation on the part of the landlady to confirm the aforesaid fact.

In view of the above, while allowing the revision petition and setting aside the judgment dated 18.10.2003 passed by the appellate authority,

the matter is remanded to the appellate authority to pass a fresh order keeping in view the judgment of the Hon''ble Apex Court in Rakesh

Wadhawan''s case (supra) and taking into consideration that as per statement made by the learned counsel for the petitioner the arrears of rent

have been cleared. The revision petition stands disposed of accordingly.