M/s Rubber House vs M/s Excellsior Neediles Industries Pvt. Ltd.

J V. Gupta, J.—The tenant Petitioner has filed this revision petition against the order of the Appellate Authority, dated 29th November, 1979, whereby the order of the Kent Controller, directing his ejectment, has been maintained.

The premises in dispute consists of two sheds measuring 75''x56.'' situate within boundary will on Jhajjar Road, Bahadurgarh (Rohtak). These premises were rented out on a monthly rent of Rs. 950/-. It has been claimed in the ejectment application that under the provision of Haryana Urban (Control of Kent and Eviction) Act, 1973. (hereinafter referred to as the Act; the rent of the demised premises was liable to be increased from Rs. 950/-to Rs 1142/- per month. The landlord gave notice to he tenant to pay rent at the enhanced rate of Rs. 1142/- per month with effect from 26th June, 1974 but he defaulted in making the payment of rent date from him since 1st May, 1974, and as such he was liable to ejectment from the demised premises on the ground of non-payment of rent.

in the written statement filed on behalf of the tenant on 9th December, 1977 he resisted the application by denting that the landlord was entitled to claim enhanced rent at the rate mentioned in the ejectment application under the provisions of the Act The service of any notice on him to claim the arrears of rent was also denied by him. It was further pleaded that he had already paid the rent to the landlord upto March, 1975 as per Annexure I to IV through cheques and he had tendered the arrears of rent together with costs and interest as assessed by the Rent Controller on 5th December, 1973, and as such the sole ground of his ejecment from the demised premises was no longer avail- able to him.

In the application, the landlord denied that the tenant bad paid any rent to him for the period May, 1974 to March, 1975. He claimed that the rent was due to him from the Respondent with effect from 1st May, 1974 to 30th November, 1977, at Rs. 1142/-per month. In the alternative, he claimed that the rent to the extent of Rs. 56110/- we due to him from the tenant at Rs. 950/ per month for the period 1st May 1974 to 30th June, 1977, and the tenant having clearly defaulted in making the payment of the rent due to him, was liable to ejectment. On the pleadings of the parties, the Rent Controller framed the following issues:-

Whether the written statement is signed and verified by a competent person ?

Whether the Respondent has made payments as per his written statement, if so, to what effect 7

To what amount is the Petitioner entitled to ?

On issue No. 1, the Rent Controller held that the written statement filed by the tenant was verified and signed by a competent person. On issue Nos. 3 and 3, the Rent Controller, cams to the conclusion that "in the light of above discussion, I find that including the rent tendered in the Court, the Respondent had paid a sum of Rs. 5855.86 towards the rent which was due for the period 1.5.75 onwards Actually a sum of Rs. 24,700/- was due from the Respondent for this period. The Respondent has not paid the balance amount of Rs. 18,844,16. As such the Respondent is liable to be evicted on the ground of non payment of rent to the applicant". Consequently the learned Rent Cont- roller accepted the ejectment application and directed the ejectment of the tenant.

In appeal the appellate authority has affirmed the said finding of the Rent Controller that the tenant was in arrears of rent to the extent of Rs. 18,844.14 paise was not being challenged. The only point urged before him that under the proviso to Section 13(2) it was the duty of the Kent Controller to calculate the rent and since he failed to calculate the same, no order of ejectment could be passed against him on the basis of non payment of rent, was repelled by the learned Appellate Authority, with the observations that "the Rent Controller was not duty bound to work out the arrears of rent. It was the sole responsibility of the Appellant tenant to work out the arrears of rent. it is conceded that the Respondent had wrongfully worked out the arrears of rent He had claimed payment of the rent which he know had not been made to the landlord." must therefore, blame himself for his own fault in claiming wrong payment of rent to the landlord " Consequently, the appeal was dismissed and the order of ejectment passed by the rent Controller was maintained. Feeling aggrieved with this order, the tenant has come up in revision to this Court.

Shri H.L. Sibel, Senior Advocate, learned Counsel for the tenant vehemently argued that since the landlord claimed more rent than due, his application for ejectment was liable to be dismissed on this ground alone According to the learned Counsel, it has been found by both the authorities that no rent was due for the period 1st May, 1974 to 31st March, 1975, as it stood fully paid to the landlord. He further elaborated this point by inviting my attention to clause ''C of Rule 4, and to Clause (i) of Rule 5 of the Haryana Urban (Control of Rent and Eviction) Rules, 1976, framed u/s 23 of the Act. Clause (c) of Rule 4 provides: -

An application u/s 13 of the Act shall, besides the particulars mentioned in rules 5 and 6. contain the amount of arrears due and the period of default.

According to the learned Counsel, since in the application for ejectment no such amount of arrears due was mentioned, the application as such was not maintainable and in any case no order of ejectment could be passed taking into consideration the false averments made by the land- lord in his application.

However, I do not find any force in the contention of the learned Counsel for the Petitioner Admittedly, no such objection at to the noncompliance of the said rules was taken either in the written statement or before the Rent Controller, in as much as it was not raised even before the Appellate Authority Morever, it has not been shown that any prejudice was caused to the tenant on account of this non-compliance on the part of the landlord. Under these circumstances, no such plea can be available to the tenant in this revision petition for the first time. Particulary when it does not effect the marits of the case nor has It caused any prejudice to him. Morever, in the present case, there was no mistake in calculating the arrears of rent. The tenant had taken a specific stand that the arrears, though calculated rightly at the rate of Rs 950/per month, had already been paid to the landlord and only a balance amount of Rs 2902.96 paise is due to him which he was ready and willing to pay within 15 days of the date of the first hearing.

The leaned counsel for the Petitioner next contended that in view of the proviso to Section 13(2)(1) of the Act, it is the duty of the Rent Controller to calculate the arrears of rent alongwith interest at the rate of 8 per cent per annum as well as the costs to be allowed by him and once the arrears of rent are calculated on the first date of beaming the tenant must pay the same in order to save his ejectment. In case no such calculation is made by the Rent Controller, the tenant is rot liable to ejectment on the ground of non payment of rent. I have considered this argument at a great length, but I do not find any merit in the same Section 13(2)(1) reads as under: -

13 (2) A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied: -

(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 percentum per annum on such arrears together with such costs of the application, if any, as may be allowed by the controller, the tenant shall he deemed to have duty paid or tendered the rent within the time aforesaid:

Provided further 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 .

This section clearly provides that the tenant must pay the rent within 15 days after the expiry of the time fixed in the agreement of tenancy with the landlord or in the absence of any such agreement by the last day the month following that for which the rent is payable. Under the proviso, a further concession has been given to the tenant to pay the arrears of rent within a period of 15 days of the first hearing at the application after due service. Under the proviso, along with the arrears of rent, the: tenant is also liable to pay interest at the rate 8 per cent per annum to be calculated by the Rent Controller together with such costs of the application, which may be allowed by the Rent Controller, in case, the arrears of rent alongwith interest and costs, if allowed are paid or tendered within the time prescribed, the tenant shall be deemed to have duly paid or landlord within the time afore-said. Going through the whole scheme of the Act, there is no provision that the Rent Controller should decide at the first date of hearing the amount due as arrears of rent According to the landlord counsel for the Petitioner such determination will be of adhoc nature If later on after evidence, more amount is found due to the landlord, from the tenant as arrears of rent, the same may be paid to him subsequently, but the non payment of that amount in the first instance within the time allowed by the statute, will not make him liable for ejectment But this is not warranted by the provisions of the Act or the Rules framed thereunder. The tenant has been given only one opportunity to pay the arrears of rent due from him, i.e. within a period of 15 days of the date of first hearing. If this argument of the learned Counsel for the Petitioner is accepted, is that situation the tenant will have another opportunity for making the payment of the arrears due from him, which, at stated earlier, is neither the scheme of the Act not is in consonance with the language used in the proviso to Section 13 (2)(1). On the first date of hearing, it is the duty of the tenant to calculate the arrears of rent, which according to him are due from and which he intends to tender on the first date of hearing. On the amount which the tenant is ready to pay or tender as arrears of rent, the Sent Controller will calculate the interest thereon at the rate of 8 per cent per annum If the tenant is not prepared either to lender or make any payment, the question of calculating the interest as such will not arise and in case there is deficiency in the amount tendered as arrears of rent which may be found subsequently on evidence, the tenant cannot claim protection on the ground that he had tendered the amount under the order of the Controller.

There is no such provision in the Act which requires the Controller to determine the arrears of rent on the first date of bearing nor in the nature of things it is possible to determine the same without evidence. Since payment of rent is obligatory on the tenant and that too within the time prescribed in Section 13(2)(1) of the Act, it is for him to calculate the rent which is in arrears and pay the same as provided by the statute. The failure to pay the same within the time allowed, will result in his ejectment and any payment made subsequently will not save him from ejectment. Morever it there is controversy between the parties regarding amount of arrears of rent, the Controller cannot accept ore version or the other at the stage of first hearing. On this point similar view has been taken by P.C. Jain J., in C. R. No. 1339 of 1979, decided on 28th May, 1989.

In the present case, thereof Controller on the statement of the tenant that according to his calculations he it only to pay a sum of Rs. 2902/-96 paise, calculated the interest on this amount of Rs. 261.27 and allowed Rs. 35/as costs. The total amount was Rs. 3199.23 paise, which was tendered by the tenant on that date and was accepted by the landlord subject to rendition of accounts. Moreover, the tenant clearly stated on 5th December, 1971, that according to him, the total amount due from him at the rate of Rs. 950/- P.M. from 1st April, 1975 to 31st May, 1977, was Rs. 24,700/ cut of which Rs 21696/-had already been paid by him to the landlord, which be subsequently tailed to prove by leading evidence. Under these circumstances, since the tenant failed to prove the payment of the arrears of rent as claimed by him, in his statement recorded on 5th December, 1977, he was liable to ejectment on the ground of non payment of rent as provided u/s 13(7)(1) of the Act.

For the reasons recorded above, this petition, fails and is dismissed with coats However, the tenant Petitioner is allowed two month''s time to vacate the premises provided all the arrears, if any and advance rent for this period is paid or deposited within a fortnight.