Prem Chand vs Amar Nath etc.

T.U. Mehta, J.—The Applicant is the tenant of the Respondents and has preferred this revision petition against the order of eviction passed by the Rent Controller and confirmed by the Appellate Authority on the ground of arrears of rent. Both, the lower authorities have come to the conclusion that the rent deposited by the Petitioner on the first date of hearing is found short by Rs. 36.63 calculating the rent in arrears on the date of the institution of the petition and interest at the rate of six per cent upto the first date of hearing plus costs including pleader''s fees. According to the lower authorities the details of the payment which the Applicant was supposed to make on the first date of hearing are as under:

Rs. 937.50 Rent in arrears from 9-7-1967 to 8-7-1969 at the rate of Rs. 37.50 per month. Rs. 66.63 Interest at the rate of six per cent (Calcul ation of interest is not disclosed from the judg ment). Rs. 70.00 Pleader''s fees. Rs. 15.00 Costs of the petition. Rs. 1089.30 Total

It is an admitted position that on the first date of hearing the Petitioner tenant tendered the total amount of Rs. 1052.50 on the following calculations:

Rs. 931.00 Rent due from 9-6-1967 to 3-7-1969. Rs. 36.50 Interest at the rate of 6 per cent (calcula tions not disclosed). Rs. 70.00 Pleader''s fees. Rs. 15.00 Costs of the petition. Rs. 1052.50 Total.

As already noted above, this tender of Rs. 1052.50 made by the Petitioner on the first date of hearing falls short, according to the lower authorities, by Rs. 36.63. The record of the case shows that on the two dates subsequent to the date of the first hearing the Petitioner tenant has made further tenders of the short fall of Rs. 36.63 in the proceedings of the case. But obviously this tender is not on the first date of hearing and, therefore, should not be taken into account, in order to consider whether the Petitioner has complied with the provisions of Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) which governs the facts of this case.

The learned Advocate of the Petitioner raised certain contentions interpreting the relevant provisions contained in Section 13(2)(i) of the Act. I will refer to these contentions at a proper stage, but before doing so, it would be necessary to quote these provisions.

Section 13 of the Act contemplates eviction of a tenant and Sub-section (2) thereof stipulates certain grounds on which eviction can be ordered by the Rent Controller. One of these grounds is the arrear of rent unpaid by the tenant. This ground is as under:

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after 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 on the first hearing of the application for ejectment, after due service, pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.

Shri Chitkara, the learned Advocate of the Petitioner, contended that the proviso which is attached to the above referred Clause (i) clearly stipulates the assessment of costs by the Rent Controller, and since according to him, in this case the Rent Controller has not assessed the costs by a separate order, the Petitioner was not bound to tender any costs on the first date of hearing. It was pointed out that if in spite of this, the Petitioner has tendered the amount of costs of Rs. 15/- and pleader''s fees of Rs. 70/- the same should be adjusted as against the short fall of Rs. 36.63 as done in the cases of Bansi Lal v. Sant Ram AIR 1965 Pun 375 and Hirdy Ram v. Som Nath and Ors. 1969 CriLJ 547.

So far as the question of adjustment is concerned there is no dispute about the legal position that in view of the above referred two decisions, the same can be made if it is found that the tenant has made some excess payment on one count and deficient payment on the other. However, the question is whether the Petitioner tenant is correct in his contention that the Rent Controller had not assessed the amount of costs to be tendered by the Petitioner on the first date of hearing. Here I find that on the first date of hearing, i.e. on 28-8-1969, the Petitioner has made a statement disclosing how he has calculated the arrears of rent, interest and costs of the petition together with pleader''s fees. In the written statement which is filed by the Petitioner he has specifically admitted that the amount of pleader''s fees and costs tendered by him on the first date of hearing was as per orders of the Court. The order-sheet does not specifically mention that the court has passed any written order requiring the Petitioner to tender certain amount towards pleader''s fees and costs. But looking to the order sheet, the averments contained in the written statement, and the above referred statement recorded by the Court on 28-8-1969 (which is also signed by the Rent Controller), it is quite evident that this tender of costs and pleader''s fees was made by the Petitioner only pursuant to the assessment made by the Rent Controller. I, therefore, see no substance in this contention of the Petitioner.

It was then contended on behalf of the Petitioner that there is no provision in the proviso, which is attached to the above referred Clause (i) of Section 13(2), to require a tenant to tender pleader''s fees on the first date of hearing, and therefore, even if the Petitioner has tendered the amount of Rs. 70/- that amount should be taken into account for the purpose of adjustment of the short fall of Rs. 36.63. Even this contention is found to be devoid of substance because the pleader''s fees is a necessary ingredient of the assessment of costs in any litigation and, therefore, when the Rent Controller assessed the pleader''s fees at Rs. 70/- the said assessment was made under the provisions of the Act and, therefore, this amount is not available to the Petitioner for the adjustment towards the short fall of Rs. 36.63.

The main and most important contention between the parties is whether there is any short fall in the tender of rent and interest found to have been made by the Petitioner on the first date of hearing. Reference to the split up of the amount tendered by the Petitioner shows that, according to him, the rent payable on the first date of hearing was Rs. 931/-, and the interest payable at the rate of six per cent on the first date of hearing, was Rs. 36.50. As against this, according to the Respondents, who are landlords, rent payable was of the amount of Rs. 937.50 for the period running from 9-7-1967 to 8-7-1969 and interest on these arrears at the rate of six per cent as on the first date of hearing, which was 28-8-1969, was Rs. 66.63. On scrutiny of the provisions contained in Clause (i) of Section 13(2) of the Act, I find that the mode of calculations adopted by both the parties as well as the lower authorities is not in accordance with the provisions of the Act. This will be evident from the discussion which follows.

Clause (i) of Section 13(2) shows that if a tenant fails in paying the rent due by him on the time fixed in the agreement of tenancy then he can save himself from eviction on the ground of arrears of rent if he pays the arrears within fifteen-days after the expiry of the time so fixed by the agreement. However, if there is no agreement fixing the time of payment, Clause (i) further provides that the tenant may save himself from eviction if he pays up the arrears by the last date of the month next following that for which the rent is payable. The bare perusal of the clause shows that it makes a clear distinction between the date on which the rent becomes due, and the date 0.1 which the rent becomes payable. The rent becomes due generally on the last date of the month of the tenancy. But the mere fact that it has become due does not make it payable for the simple reason that Clause (i) of Section 13(2) statutorily provides for the date of payability of the rent which has already become due. This date of payability is fifteen days after the expiry of the time fixed by agreement, if there is any agreement between the parties. However, if there is no agreement between the parties then the date of payability of the rent which has already become due is provided as "the last date of the month next following that for which the rent is payable.

Now speaking of the facts of this case it appears to be an admitted position that the rent becomes due by the Petitioner tenant on 8th day of each English Calendar month. The new month of tenancy, therefore, starts by the 9th day of each calendar month. It is an admitted position that there is no agreement between the parties as to the fixed time by which the rent is required to be paid by the tenant on each of month. Therefore, in this case even if rent has become due on 8th of a particular month, it becomes payable on "last date of the month next following" the 8th day of the month in which it has become due.

The contention of interpretation which is raised by the learned Advocates of the parties is as regards the meaning of the word "month", which is found used in the last portion of Clause (i) of Section 13(2). According to Shri Sood, the learned Advocate of the Respondent-landlords, this word "month" means the "month of tenancy" while according to Shri Chitkara, the learned Advocate of the tenant, this word "month" means a "calendar month". If the contention of Shri Sood is accepted then the rent which has fallen due on 8-7-1969 should be held as having become payable on 8-8-1969. If the contention of Shri Chitkara finds favour with the Court then this becomes payable, not on 8-8-1969, but on 31-8-1969. This contention between the parties assumes importance because it is a settled position that the Petitioner was bound to tender that amount of rent, which was in arrears, not on the first date of hearing, but on the date on which the petition was filed. [Vide Basant Ram v. Gurcharan Singh 1961 P.L.R. 591, Isher Dass Tara Chand v. Harcharan Dass ILR (1961) 14 Pun. 315 and Lachman Dass v. Shri Satya Pal 1966 C.L.J. 530. The date on which the petition was filed by the Respondents is 11-8-1969. In view of what is held in the above referred decisions, the Petitioner tenant was obliged to tender only that amount of rent which was payable on 11-8-1969, the date of the filing of the petition. Now, if it is held, as contended by Shri Sood, that the rent of the last month in arrears was payable on 8-8-1969, then the Petitioner ought to have tendered the rent of that month also, on account of the arrears of rent, on the first date of hearing. But if it is found that the rent of last month was payable, not on 8-8-1969, but on 31-8-1969, then the Petitioner tenant was not legally obliged to tender the rent of that last month on the first date of hearing because the petition was filed before the rent of that month became payable. Therefore, if Shri Chitkara''s contention prevails then the Petitioner would get the credit of the surplus of one month''s rent amounting to Rs. 37.50 which he ought not to have tendered on the first date of hearing. If this surplus is taken into account then the shortfall of Rs. 36.63 is obviously wiped out. But this would not be so if Shri Sood''s contention is accepted. It is, therefore, necessary to consider whether the word "month" which is found used in last portion of Clause (?) of Section 13(2) means a month of tenancy or the calendar month.

Shri Chitkara drew my attention to the decision in Lachman Dass v. Shri Satya Pal 1966 C.L.J. 530 in support of his contention that the word "month" means calendar month and not the month of tenancy. This decision, however, is not of any help to either of the parties because reference to the reported facts of that decision shows that the month of tenancy, which was considered therein, ended with the calendar month with the result that the facts of that case did not make any distinction between the end of the calendar month or the month of tenancy. The other two decisions to which my attention was drawn by Shri Chitkara are Bansi Lal v. Sant Ram AIR 1965 Pun. 385 and Sant Singh v. Findleys Company Ltd. 1967 P.L.R. 548. None of these decisions is helpful to support the contention raised by Shri Chitkara because so far as the decision in Bansi Lal v. Sant Ram is concerned, the point has not been decided by the Court and so far as the other decision is concerned, the report does not show whether the month of tenancy ended with the calendar month or not. Under the circumstances, the point is res-integra and has to be decided on its own merits after construing the relevant provisions of Section 13(2) of the Acts.

If again a reference is made to Clause (i) of Section 13(2), it will be found that the word "month" is used therein without any qualification. Under these circumstances, aid must be taken from the provisions of the Himachal Pradesh General Clauses Act, 1968, Section 2 of which defines the word "month" in Clause (28) as under:

month shall mean a month reckoned according to British Calendar.

The definitions given in this section are to be followed unless there is anything repugnant in the subject or context. It follows, therefore, that unless we find that there is something repugnant in the Rent Act or in the context in which this word is used, in Section 13(2), we have to interpret this word as meaning a month reckoned according to British Calendar and not a month of tenancy. After, considering very anxiously the provisions contained in Section 13(2) of the Act, I find that there is nothing repugnant in the context in which this word is used there in to suggest that it is a month of tenancy. I have also referred to the other provisions of the Rent Act but have not been able to find anything to suggest that the month to which a reference is made in Clause (i) of Section 13(2) is the month of tenancy.

Now if we analyse the scheme of Clause (i) of Section 13(2), it will be found that it safeguards the tenancy rights of a tenant who has, for some reasons, failed to pay the rent due in time. Clause (i) makes distinction between the cases wherein there is an agreement for the payment of rent by a particular date and the cases in which there is no such agreement between the parties. In the former case being the case of an agreement, law says that the rent due should be payable within fifteen days from the time fixed by the parties by agreement. But in the latter case where there is no agreement the law provides that the payment should be made by the last date of the month next following that for which the rent is payable. The idea seems to be that where there is no agreement between the parties, the law becomes liberal in extending the time upto the last date of the calendar month so that the payment can be regularised by the calendar month of a particular year. This, of course, makes a variation in the stipulation of a tenancy agreement as regards the payment of rent. But such variations by the interference of a statute are not unknown in social legislations which are enacted with a view to give protection to certain class of people. That variation by itself, therefore, cannot be considered to be repugnant to the subject of legislation. To conclude, therefore, I am of the opinion that the last date of the month on which the payment is stipulated by Clause (i) of Section 13(2) is the last date of the calendar month which follows the due date of payment.

In this view of the matter the Petitioner tenant is found to have made an excess payment of Rs. 37.50 (being one month''s rent) towards the arrears of rent. This excess clearly covers the shortfall of Rs. 36.63.

This also makes difference in the calculation of interest because interest will be calculated only after the date of payability passes without payment. For instance, if the rent becomes due on 8-7-1969 it becomes payable on 31-8-1969, and if on 31-8-1969 that rent is not paid, interest would start running against the tenant from 1-9-1969. Therefore, the interest at the rate of six per cent which the Petitioner tenant was required to tender on the first date of hearing ought to have been calculated accordingly. I had asked the parties before me to give their calculations of interest in accordance with this principle. They have given their calculations which show that according to the Petitioner tenant, the interest which was required to be tendered on the first date of hearing in accordance with this calculation comes to Rs. 56.26. But according to the landlords this calculation comes to Rs. 63.88. It is obvious that even if we go by the calculation made by the Respondent-landlords the interest amount is less than what is calculated by the lower authorities; namely Rs. 66.63. Therefore, even on account of interest tendered, the calculation on which the judgments of the lower authorities are based is more than what it ought to be.

In view of what is stated above, I find that the tender made by the Petitioner on the first date of hearing is quite proper and there is no shortfall. If it be so, the order of eviction passed by the lower authorities cannot stand and should be set aside. This revision petition is accordingly allowed and the decree for eviction which is passed by the lower authorities is set aside. In view of the peculiar circumstances of the case, there shall be no order as to costs.