Mulkh Raj and others vs Onkar Singh

D.K. Mahajan, J.—This petition for revision is directed against the decision of the Appellate Authority, Hoshiarpur, reversing on appeal the decision of the Rent Controller ordering eviction of the tenant.

The relevant facts are few and simple. On the 30th November, 1968, an application u/s 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) was made for eviction of the tenant on the ground of non-payment of rent. There were other grounds also, but with them we are not concerned. The tenant did not clear the arrears on the first date of hearing. The result was that an order of eviction was passed on the 20th June, 1969. This order was appealed against by the tenant. In the meantime another application was made by the landlord for eviction of the tenant for non payment of rent. That application is dated 20th December, 1969. In that application the period tae first application was also included. The tenant made the payment on the 11th February, 1970, the date of the first hearing. This payment included the arrears for the default of which the first application had been allowed. This application was dismissed as withdrawn. The Appellate Authority while dealing with the appeal in the first application allowed the same on the ground that in the second application all the arrears of rant due including those mentioned in the first application had been said and accepted by the landlord. The Appellate Authority took this view on the basis of the decision of this Court in Messrs Bagarian Armoury v. Rakha Rum (1966) the decision of the Appellate Authority, the present revision has been preferred to this Court.

The contention of Mr. (sic) Singh, learned counsel for the petitioner is that a perfectly valid order of eviction was pissed on the 20th June, 1969. As the tenant had not paid the arrears of rent on the first date of hearing, the default having occurred, there was no option for the Rent Controller, but to order the eviction of the tenant. The Appellate Authority could only examine the validity of that order and no subsequent event, could in any manner effect that order. In the present case, the subsequent event was the payment of the arrears of rent for the non-payment of which the eviction of the tenant had been ordered in the first application. It may be mentioned that in spite of the eviction order, the landlord was entitled to recover those arrears by separate proceedings and it is immaterial that he chimed those arrears again in the second application and fact, those arrears were paid. The payment of those arrears of rent can in no way wipe out the default which occurred during the course of the first application and had led to an eviction order. The order of the Rent Controller in the first application could only be set aside by shoving that in fact, the tenant was not in arrears of rent when the eviction or order was passed. The very fact that the tenant paid those arrears of rent in the second application proves beyond doubt that he was in arrears of rent in the first application and the Rent Controller was perfective justified in ordering his eviction The decision in Bagarian Armoury''s case (supra) on which the Appellate Authority relied has no application to the facts of the present case. That was a case where both applications were pending and not where the default not actually materialised and eviction order had been passed.

Mr. Aggarwal, learned counsel for the respondent, has raised two contentions on the basic of the decision in Rattan Chand v. Jagmohan Singh 1971 RCR 841. His first contention is that the order in the second application is resjudicata so far as the first application is concerned. That would be so if there was a decision in the second application that is the second application was dismissed because the tenant had cleaned the arrears. The only fact established on the record is that a demand was made by the landlord for rent in arrears including those in the first application and these arrears had been deposited. But it is significant that no order as passed by the Rent Controller dismissing that application on account of the tenant having paid the arrears of rent on the first bearing. The question whether the tenant was or was not in arrears or whether the amount that was tendered at the first hearing represented the total arrears clue including costs and interest, was not considered or decided. On the other hand the second application was dismissed as withdrawn. It is well settled rule that only a decision on an issue is res judicata. There being no decision in the second application, the question of res judicata doss not arise Therefore, we are not Impressed with she contention of the learned counsel, that the trial of the first application is barred by the rule of res judicata.

The second contention of the learned counsel is that in the second application, the arrears of rent had been cleared and, therefore, at the time when the Appellate Authority was dealing with the decision of the Rent Controller in the first application, there were no arrears of rent. According to the learned counsel, the decision in Rattan Chand''s case (supra) is a (sic) for the proposition that if the arrears are cleared in the second application automatically it must be taken that there are no arrears at the time of the first application This may or may not be so, but so far as the present case is concerned, this is certainly rut so. In the present case, an order for eviction of the tenant was passed on the ground that the tenant was in arrears of rent. That order was under appeal and until the finding that the tenant had not cleared the arrears of rent at the first hearing was vacated in the appeal that had been filed, any payment of arrears later on would be Immaterial and would not detract in any manner from that finding or set it at naught. The payment of arrears can be voluntary or can be by (sic) means as in the present case wherein to avoid eviction claimed in the second application, the entire arrears including those on which the first application was grounded, were heard. It would have been a different matter if the second application had been dismissed on the ground that the tenant was not in arrears of rent inasmuch as be had charged them at the first hearing. In that event in appeal, a contention may be available that the tenant was not in arrears of rent. But we are doubtful if it could be accepted. The default by not paying the arrears of rent as the first hearing in the first application led to an eviction order and the mere fact that that order was under appeal could not wipe out the default. Therefore the mere payment of arrears in the second application after suffering eviction for their non-payment in the first application can have no relevancy whatever so far as the decision of the first application in appeal was concerned. This event, though subsequent, could not be used for any purpose to determine the fate of the appeal lodged against the order in the first application. The Appellate Authority thus made a grave, mistake in thinking that the clearance of arrears after a valid order of eviction had been passed could, in any manner, detract from that order. The Appellate Authority could only examine the facts and the circumstance proved in the first application to see whether on their basis the order was justified or not. It is not disputed before us that on the facts and circumstances, and on the evidence led in the first application, the order of eviction was validly passed. Therefore, that order must stay as nothing has happened which can detract from its validity and the Appellate Authority was wrong in interfering with it on the basis of the so called subsequent events

The last of Mr. Aggarwal is that there is waiver. There can be no question of waiver, because the landlord had obtained a decree for eviction of the tenant on the basis of his default and the tenant was contesting that decree and the decision in that decree could not be invalid or deemed to have been waived merely because later on the tenant either voluntarily or through coercive machinery of the Court was made to pay the arrears of rent.

For the reasons recorded above, we allow this petition and restore the order of the Rent Controller and sit aside that of the Appellate Authority. The tenant is granted three months'' time to vacate the premises provided he is not in arrears of rent. If he is in arrears of rent he would only be entitled to the benefit of three month''s time if those arrears of rent and the rent for the three months are paid within one month from today, failing which the order of eviction will take effect.