Mehar Chand vs Rama Sharma

Alok Singh, J.—Tenant has invoked the revisional jurisdiction u/s 15(5) of the Punjab Rent Restriction Act, 1949 (hereinafter referred to as the Act), challenging the judgment dated 18.01.1999 passed by the learned Rent Controller, Chandigarh, as well as, judgment dated 17.03.2005 passed by the learned Appellate Authority, Chandigarh, whereby directing the eviction of the tenant - revisionists herein.

The brief facts of the present case are that landlord has filed eviction petition against the tenant - revisionist herein, inter-alia, with the contention that revisionist is tenant at rate of Rs. 850/- per month and has not paid the rent w.e.f. September, 1994, hence, tenant is liable to be evicted.

Tenant has filed written statement and has stated that rate of rent is not Rs. 850/-, and correct rate of rent is Rs. 400/- and he has been paying rent to Mrs. Usha Prashar, Special Attorney of the landlord, right from the beginning and has paid rent upto October, 1997 at the rate of Rs. 400/- per month.

Learned Rent Controller has observed that landlord has succeeded in proving the rate of rent at the rate of Rs. 850/- and tenant could not prove that he has paid any rent to Smt. Ushar Prasher till October, 1997. Ultimately, eviction petition filed by the landlord was allowed in favour of the landlord and against the tenant vide judgment dated 18.01.1999.

Feeling aggrieved from the judgment dated 18.01.1999, tenant has filed statutory appeal before the learned Appellate Authority. Before the Appellate Authority, tenant has filed two applications, one application was moved by the tenant that as per the dictum of the Apex Court in the matter of Rakesh Wadhawan v. Jagdamba Industrial Corporation reported in 2002(1) R.C.R. 514, Rent Controller was obliged to assess the provisional rent and to direct the tenant to deposit the rent on the next date fixed by the Rent Controller along with interest and costs of the litigation. It is also contended in the application that since no assessment was made by the learned Rent Controller, hence, matter should be remanded to the Rent Controller to assess the rent and to give opportunity to the tenant to deposit the amount as assessed and directed by the Rent Controller. Second application was moved by the revisionist to the Appellate Authority to the effect that tenant be permitted to place on record additional evidence to prove that in fact rent was paid by the tenant till October 1997. Before the Appellate Authority, landlord has made statement on 09.10.2004 to the following effect:

I have no objection if the matter is remanded back to Rent Controller as the provisional rent has never been fixed by Rent Controller, keeping in view authority titled as Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation 2002(1) RR 514 SC. However Rent Controller may be directed to dispose of the trial expeditiously.

Appellate Authority did not agree with the tenant. Appellate Authority not only dismissed the two applications moved by the tenant, but also dismissed the appeal filed by the tenant vide impugned judgment dated 17.03.2005.

I have heard learned Counsel for the parties and perused the record.

In the present matter, landlord is claiming rate of rent @ Rs. 850/- per month, while tenant has averted the rate of rent is @ Rs. 400/- per month. In view of the judgment of the Apex Court in the matter of Rakesh Wadhawan (supra), it was incumbent on the part of the Rent Controller to assess the provisional rent and cost of the litigation and to grant an opportunity to the tenant to make payment of rent so assessed along with the interest and costs of the expenses. Hon''ble Apex Court in the matter of Rakesh Wadhawan (supra) in paragraph Nos. 30 to 32 has observed as under:

To sum up, our conclusions are:

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 per cent 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.

We do not find that the Controller has, in the present passed any order u/s 13(2)(i) proviso as aforesaid and therefore the order for eviction stands vitiated on the view of the law which we have taken hereinabove. The appeal is allowed. The impugned judgment of the High Court and the orders of the Rent Controller as also of the Appellate Authority are all set aside. The case is sent back to the Controller. The Controller shall, after affording the parties an opportunity of hearing, pass a provisional order under the proviso to Section 13(2)(i) and afford the tenants an opportunity of making payment or tender and then proceed to decide the case afresh consistently with the law as settled hereby. The costs before the Appellate Authority, the High Court and this Court shall be borne by the parties as incurred. The costs before the Controller shall abide the result.

In the opinion of this Court, in view of the statement made by the learned Counsel for the landlord before the Appellate Authority as reproduced herein above and in view of the dictum of the Apex Court in the matter of Rakesh Wadhawan (supra), the matter ought to have been remanded to the learned Rent Controller to assess the provisional rent and to give opportunity to pay/deposit the rent to the tenant, so assessed along with the interest and cost of the expenses, within such time as fixed by the Rent Controller.

Petition is allowed. Impugned judgments are set aside. The matter is remanded back to the Rent Controller. Parties are directed to appear before the Rent Controller on 08.11.2010 and Rent Controller thereafter shall proceed with the case de nova in accordance with law, in the light of the observations made hereinabove.