Niranjan Dass vs Jagjit Cotton Textile Mills Ltd.

Sham Sunder, J.—This revision petition has been preferred by the tenant-petitioner against the judgment dated 18.8.1992, rendered by the Appellate Authority (Additional District Judge), Kapurthala, vide which the order dated 26.2.1991 rendered by the Rent Controller, Phagwara, was set aside and ejectment of the tenant-petitioner was ordered, on the ground, that the tender made on 20.1.1989 was invalid.

The petitioner was inducted as a tenant, by Dharam Singh in the demised premises, at a monthly rental of Rs. 35/-. The said property was sold vide sale deed dated 6.9.1973 by Dharam Singh, in favour of Niranjan Dass, landlord-respondent, and the arrears of rent were also assigned, in his favour. The ejectment of the petitioner was sought, on the ground, that he had been in arrears of the rent since 10.8.1973 onwards, till the filing of the ejectment petition on 12.8.1988. On the failure of the tenant-petitioner to pay the arrears of rent, the ejectment petition was filed by the landlord-respondent.

In the written statement filed by the tenant-petitioner, it was admitted that he was inducted in the demised premises, as a tenant, at a monthly rental of Rs. 35/- by Dharam Singh. It was denied for want of knowledge, that the said premises were transferred by Dharam Singh, in favour of Niranjan Dass. Arrears of rent from 10.8.1973 to 10.1.1989 at the rate of Rs. 35/-per month, along with interest, and costs were tendered by the tenant-petitioner on 20.1.1989.

In the replication filed by the landlord-respondent, he reasserted all the averments, made in the ejectment petition, and controverted those contained in the written statement. On the pleadings of the parties, the following issues were struck, by the Rent Controller, vide order dated 17.2.1989.

Whether the tender made by the respondent is valid? OPR

Whether the application is not maintainable in the present petition? OPR

Whether the applicant has no locus-stand to file he present application for ejectment? OPR

Whether the applicant is barred by his own act and conduct to file the present application for ejectment? OPR

Whether the applicant is not entitled to recover interest from 17.8.73 to 17.1.89? OPR

Whether the respondent is liable to ejectment from the premises in dispute? OPR

Relief

The parties led evidence. After hearing learned Counsel for the parties, and on going through the evidence on record, the Rent Controller, Phagwara, dismissed the ejectment application vide judgment dated 26.2.1991 by holding that a valid tender was made by the tenant on the first date of hearing.

Feeling aggrieved, against the judgment dated 26.2.1991 of the Rent Controller, an appeal was preferred by the tenant-petitioner, which was accepted by the Court of the Appellate Authority (Additional District Judge, Kapurthala) vide judgment dated 18.8.1992 holding that no valid tender was made on the first date of hearing. Accordingly, the judgment of the Rent Controller; was set aside, and ejectment of the tenant-petitioner was ordered by the Appellate Authority.

Accordingly, feeling aggrieved, against the judgment dated 18.8.1992, the instant revision petition, was filed by the tenant-petitioner.

I have heard learned Counsel for the parties, and have gone through the record of the case, carefully.

Learned Counsel for the petitioner, at the very outset, contended that the Appellate Authority, was wrong, in holding that tender was not made by the petitioner, on the first date of hearing. He further submitted that the first date of hearing, was the date, when the Rent Controller applied his mind to the facts and circumstances of the case, which could be said to be at the time of striking issues. He further submitted that the issues were struck by the Rent Controller on 17.2.1989, whereas, the tender of the arrears of tent claimed by the landlord-respondent, was made by the petitioner, on 20.1.1989 I.e., much before the first date of hearing. Reliance was also placed by the counsel for the petitioner, in support of his contention, Rakesh Wadhawan and Others Vs. Jagdamba Industrial Corporation and Others, and Sham Lal (Dead) by Lrs. Vs. Atme Nand Jain Sabha (Regd.), Dal Bazar, . It was further contended by the counsel for the petitioner, that, in view of the principle of law laid down, in the aforesaid authorities, the judgment of the Appellate Authority, was liable to be set aside.

On the contrary, the counsel for the landlord-respondent, submitted that no valid tender of arrears of rent, was made by the tenant-petitioner, on the first date of hearing. He further submitted that the Rent Controller applied his mind on 12.9.1988, when the costs were assessed but the tenant-petitioner did not tender the arrears of rent, on that date. He only tendered the costs. He further submitted that, as such, the tender of arrears of rent on 20.1.1989, could not be said to have been made validly, on the first date of hearing and, as such, the Appellate Authority, rightly passed the judgment dated 18.8.1992, ordering the ejectment of the tenant-petitioner.

The relationship of landlord and tenant between the parties was not disputed at the time of making tender. The only question that requires determination, in this revision petition, is, as to whether, the arrears of rent, along with interest and costs, were tendered by the tenant, on the first dated of hearing or not. It is evident from the record that the tenant was served in the ejectment petition for the first time for 12.9.1988 and he appeared in the Court of the Rent Controller in person. The Rent Controller assessed the costs at Rs. 80/-. The Rent Controller did not assess the arrears of rent and interest on that date, which he was legally bound to do. The tenant tendered the amount of costs and sought an adjournment, to pay the rent, since, copy of the petition had not been supplied to him on that date. The costs, which were tendered by the tenant on 12.9.1988, were accepted under protest. Thereafter, the case was adjourned from time to time, on the grounds, that either the Rent Controller was on leave or the members of the bar were on strike. It was on 20.1.1989 that the tenant-petitioner tendered the arrears of rent from 16.8.1973 to 15.1.1989 at the rate of Rs. 35/- per month, along with interest of his own, without passing the order of assessment of the same by the Rent Controller. The tender was accepted under protest. The term "first date of hearing" was interpreted by the Apex Court in Sham Lal (Dead) by Lrs. Vs. Atme Nand Jain Sabha (Regd.), Dal Bazar, . While interpreting the "first date of hearing" in context of Section 13(2), proviso (i) of the East Punjab Urban Rent Restriction Act, 1949 the Apex Court held as under:

It appears that there is consensus in regard to the interpretation of the expression ''first day'' in the context of the rent legislations of several other states for instance, the Gujarat High Court in Shah Ambalal Chhotalal and Others Vs. Shah Babaldas Dayabhai and Others, dealing with the identical question as to the meaning of the words "the first day of hearing of the suit" as provided in Sub-section(3)(b) of Section 12 of Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947, has observed after considering several decisions that "the words ''the first day of hearing'' as meaning not the day for the return of the summons or the returnable day, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken."

It was further held in the aforesaid authority by the Apex Court as:

From the objects of the Punjab Act of 1949 it is abundantly clear that the Act was enacted with the object of affording protection to the tenants against arbitrary increase of rent of certain premises within the limits of urban areas as well as from eviction of the tenants from the rented premises. In this context it is imperative that the words "the first hearing of the application" have to be interpreted in a manner which promote the object of this beneficial legislation. Viewed from this aspect it is clear that the words, "first hearing of the application" as used in proviso (i) to Sub-section (2) of Section 13 of the Act does not mean the day fixed for return of the summons or the returnable day but the date when the court applies its mind to the case, which ordinarily could be at the time when either the issues are determined or evidence taken.

The term "first date of hearing, as envisaged by proviso to Clause (i) of Sub-section (2) of Section 13 of the East Punjab Urban Rent Restriction Act, 1949, again came up for interpretation, before the Apex Court, in Rakesh Wadhawan (supra). The Apex Court in the aforesaid authority, while interpreting the said provision, held as under:

What follows from the above said discussion, is that the proviso to Clause (i) of Sub-section (2) of Section 13 must be read as obliging the Controller to assess, by means of passing an order, the arrears of rent, the interest and the cost of litigation all the three, which the tenant shall pay or tender on the first date of hearing of the main petition following the date of such assessment by Controller. Such order based on an opinion formed prima facie by perusal of the pleadings and such other material as may be available before the Controller on that day would be an interim or provisional order which shall have to give way to a final order to be made or further enquiry to be held later in the event of there being a dispute between the parties calling for determination. The Controller would, however, at the outset assess the rent, the interest and the cost of application in the light of and to the extent of dispute, if any, raised by the tenant. Such amount, as determined by the Controller shall be liable to be paid or tendered by the tenant on the first date of hearing falling after the date of the preliminary or provisional order of Controller. The expression "the date of first hearing" came up recently for the consideration of this Court in Mam Chand Pal v. Smt. Shanti Agarwal C.A. No. 1187 of 2002 decided on 14.2.2002). It was held that ''the date of its hearing'' is the date on which the court applies its mind to the facts and controversy involved in the case. Any date prior to such date would not be date of first hearing. For instance, date for framing of issues would be the date of its hearing when the court has to apply its mind to the facts of the case. Where the procedure applicable is the one as applicable to Small Cause Courts, there being no provision for framing of the issues, any date fixed for hearing of the case would be the first date for the purpose. The date fixed for filing of the written statement is not the date of hearing.

The plain reading of the principle of law, laid down, in the aforesaid authorities clearly goes to reveal that it is the statutory duty of the Rent Controller to assess the arrears of rent due, along with costs, and interest. The first date of hearing, would be, that on which the Court applies its mind, to the facts and circumstances of the case. It is further evident from the principle of law, laid down, in the authorities, referred to herein before, that the first date of hearing, in the case, would be the date for framing of issues, when the Court applies its mind, to the facts and circumstances of the case. The tender, in this case, was made on 17.1.1989. In view of the principle of law, laid down, in the aforesaid authorities, it could be very well said that the tenant in the instant case, tendered the arrears of rent, along with interest much before 17.2.1989, the first date of hearing, when the issues were struck. The Appellate Authority was, therefore, not correct in holding that no valid tender was made by the tenant. The findings of the Appellate Authority, that the tender made by the tenant, was not valid, are illegal and perverse and liable to be set aside. The findings of the Appellate Court on issues No. 1 to 6 are reversed and that of the Rent Controller are upheld.

In view of the reasons recorded herein before, the revision petition is accepted with costs. The judgment dated 18.8.1992 of the Appellate Authority is set aside, whereas, the judgment of the Rent Controller dated 26.2.1991, is restored, and the ejectment application shall stand dismissed.