Messrs. Bagarian Armoury vs Rakha Ram

Mehar Singh, C.J.—This is a revision application from the order, dated March 31, 1965 of the Appellate Authority u/s 15 of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949). The application is by the tenant.

On April 22, 1963 the landlord, who is respondent to this revision application, made an application for eviction of the tenant u/s 13 of the Act alleging that the tenant was in arrears of rent for the preceding: three and half years, which means from October, 1959. This, for the sake of clarity, may be described as the first eviction application. The first date of hearing of this application was Tune 12, 1963.

On that date. according to the proviso to clause (i) of sub-section (2) of section 13. of the Act. the tenant paid Rs. 1,000/- towards the arrears of rent, Rs. 50/- as interest, and Rs. 25/- as costs of the application. The rent paid was from Tune 1, 1962, to March, 31 1963. Obviously, no arrears of rent were paid for the period between October 1959 and May 31, 1962. It is common case of the parties at this stage that the payment made by the tenant on Tune 12, 1963, under the proviso to clause (i) of sub-section (2) of section 13 was not the full payment that ought to have been made on that day to obtain benefit of that proviso, Some arrears of rent still remained unpaid; though for the present purpose it is unnecessary to go into the exact amount of the same.

While this first eviction application was pending trial, the landlord made another similar application for eviction of the tenant on April 8, 1964, on the basis of arrears from October, 1959 to April 8, 1964. This may, for facility of reference be called as the second eviction application It will be seen that in this second eviction application the landlord does not seem to have taken account of Rs. 1075/- paid by the tenant at the time of first hearing of the first eviction application.

In any case, the first hearing of the second eviction application was on, July 24, 1964. On this date the tenant, according to the proviso to clause (sic) of sub-section (2) of section 13, made payment of Rs. 4,400/- towards arrears of rent, Rs. 729/- towards interest, and Rs. 30/- towards costs of the application, in all Rs. 5.159/-. On such payment having been made, the landlord proceeded to give statement before the Rent Controller that he withdrew the second eviction application. On that the second eviction application was dismissed by the Rent Controller on the very day.

However, when on July 24. 1964, the second eviction application was dismissed as having been withdrawn, the first eviction application was still pending before the Rent Controller. That application was dismissed by the Rent Controller on August 31, 1964, broadly on the ground that by accepting; the total payment under the second eviction application the landlord had waived his claim under the first eviction application, and that the ground on which eviction was sought in that first eviction application had ceased to exist. The landlord has succeeded in appeal before the Appellate Authority on the ground that as on the first date of hearing of the first eviction application the tenant did not comply with the proviso to clause (i) of sub-section (2) of section 13. so he became liable to eviction immediately and nothing done subsequently by the landlord could alter that. It is against that order of the Appellate Authority that the tenant has come in revision to this Court.

No doubt, the tenant by not having complied with the proviso to clause (i) of sub-section (2) of section 13 of the Act on the first date of hearing of the first eviction application became liable to ejectment, but nothing stooped the landlord to say that he still accepted the balance due and did not want to evict the tenant. This the landlord could do. But it is said that in this case he has done nothing of the sort. It is true to this extent that he has not stated so expressly, but does his conduct not amount to as much ? On the date on which the second eviction application was filed, the first eviction application was still pending in which arrears of rent had been claimed down to its date, that is to say down to April 22, 1963 In the second eviction application made on April 8, 1964, the landlord did not confine his ground of eviction to arrears due between April 22, 1963 and April 8, 1964, but based his claim for eviction on arrears between October, 1959 and April 8, 1964. In this way, he covered the whole of the period of arrears of rent, subject matter of the first eviction application. If on the date of the first hearing of the second eviction application the tenant had paid arrears only between April 22. 1963, and April 8, 1964. with interest and costs on the application, it would then have been pointed out by the landlord that even in the case of second eviction application the tenant was not complying with the proviso to clause (i) of sub-section (2) of section 13. So that in the two eviction applications pending at one and the same time, the landlord based his claim for eviction on arrears for the same period between October, 1959 and April 22, 1983.

If the landlord placed the tenant in such a curious position and based his claim for eviction of the tenant for the total amount of arrears from the beginning, that is to say from October, 1959, he thereby, in my opinion, rendered his first eviction application for all practical purposes infructuous. If the matter stood there and nothing else took place, it might still have been said that he was pursuing both the applications at the same time. But here when on the first date of hearing of the second eviction application full compliance of proviso to clause (i) of sub-section (2) of section 13 was made by the tenant and the landlord obtained dismissal of his eviction application, then he did so not only in relation to the arrears for a part of the period but for the whole of the period from October, 1959. down to the date of the second eviction application. He thus pressed his claim on arrears, at least for a quite a part unrealisable because of bar of time, and in the second eviction application successfully realised even such time-barred arrears under the proviso to clause (i) of sub-section (2) of section 13. If then, as has happened, the landlord has unreservedly accepted those arrears and on the acceptance of the same has had his second eviction application voluntarily dismissed, he is estopped from continuing the fist eviction application on the basis of the arrears of rent already paid at the time of the decision of the second eviction application. No doubt in the first eviction application the provisions of the proviso to clause (i) of sub-section (2) of section 13 were not complied with, but during its pendency the landlord by his own act and conduct created a situation from which he cannot be permitted to resile and take a conflicting stand that he can still persist to claim eviction of the tenant on the basis of arrears non-existent on the date of the order sought by him in the first eviction application. The ground for that had by then ceased to exist because by obtaining dismissal of the second eviction application in this manner, the landlord has undertaken as much that he is not to evict the tenant on that ground and in the circumstances the ground ceased not only for the second application, but for the first eviction application as well. By accepting payment under the proviso to clause (i) of sub-section (2) of section 13, he accepted compliance of the proviso and at the same time waived his claim under the first eviction application. Emphasis has been laid by the learned counsel for the landlord on this that as soon as there was non-compliance of the proviso to clause (i) of sub-section (2) of section 13, the right of the landlord to have the tenant evicted was complete, and it is said that nothing done by the landlord subsequently can take that right away from him. If this was the position and the tenant was held liable to eviction, on this ground, on the date of the first hearing of the first eviction application, there could then arise no occasion for the second eviction application. This would mean that the second eviction application was only a device for realisation of at a least partly time barred arrears of rent. It was in substance an application for recovery of the arrears of rent, which would have at least failed to the extent of the part the arrears were time barred, and has only succeeded because the landlord has chosen to treat it as an application for eviction based on the ground of nonpayment of arrears of rent In this manner, he for all practical purposes, did something which took away any right which he had arising out of the first eviction application.

But by his conduct the landlord has done so much as to say that he accepts the whole of arrears down to the date of the second eviction application and does not seek eviction of the tenant. When he withdrew his second eviction application, accepting the whole of the amount paid under that application as stated, he did not make a statement that he accepted the amount without prejudice to his rights in regard to the first eviction application. In one way the landlord forced the tenant by the second eviction application to pay all the arrears, under the guise of the tenant not getting advantage of the proviso to Clause, (i) of sub-section (2) of section 13 if he did not pay the whole of the arrears on the date of the first hearing of that eviction application, and when the tenant has complied with the proviso with regard to that application, he is still being evicted under the first eviction application. The landlord cannot be permitted to blow hot and cold in the same breath in the manner. He cannot be permitted to have advantage over the tenant by such device. If he chose to make the second eviction application in the manner in which he has done, and, on the basis of the arrears from the beginning, that is to say from October, 1959, sought eviction of the tenant he cannot after those arrears have been paid, still be permitted to seek eviction of the tenant under his first eviction application for the arrears already paid and accepted in the circumstances of the case. So the landlord has been by his conduct estopped from pursuing the first eviction application. In my opinion, the first eviction application was rendered in fructuous by the decision of the second eviction application, the conduct of the landlord estopped him from pursuing list first application and in any case from the totality of the circumstances it is almost an unequivocal inference that the landlord waived his claim under the first eviction application.

In the view as above, the revision application is accepted, the order of the Appellate Authority is set aside and.that of the Rent Controller restored, with the result that the first eviction application of the landlord remains dismissed with costs throughout, counsel''s fee in this revision application being Rs. 62.