Ram Avtar vs Anand Sarup Mangla

J.M. Tandon, J.—Ram Avtar Petitioner is in occupation of the shop in dispute at Gurgaon Catt as a tenant under Anand Sarup Mangla, Respondent On September 19, 1975, the Respondent filed an ejectment petition against the Petitioner for his ejectment from the shop in dispute on the ground of non-payment of arrears of rent at the rate of Rs. 33/- (including Rs. 3/- by way of house tax) for the period from June 1, 1974 to October 31, 1975. The Petitioner tendered Rs. 561/- by way of rent, Rs. 34/- by way of interest and Rs. 30/- as costs (total Rs. 625/- ) on the first date of hearing.

This ejectment petition was dismissed in default on January 28, 1976. On August 23, 1977, the Respondent filed another ejectment petition against the Petitioner on various grounds including the one relating to the non-payment of arrears of rent for the period from November 1, 1975 to July 31. 1977, at the rate of Rs. 33/- P.M. (including Rs. 3/- as house tax) On the first date of hearing (8.9.1977) the Petitioner tendered rent at the rate of Rs. 27.50 P.M. (including Rs. 2.50 as house tax) for the period from April 1, 1976 to September 30, 1977. The Petitioner thus tendered Rs. 450/- as rent for 18 months (April 1, 1976 to September 30, 1977), Rs. 45/- as house tax, Rs. 30/- as interest and Rs. 30/- as costs assessed by the Court (total Rs. 555/- ). No rent was paid for the period from November 1, 1975 to March 31, 1976. The case of the Petitioner is that in the first ejectment petition filed by the Respondent on September 19, 1975, the latter had claimed rent at the rate of Rs. 33/- P.M. whereas the agreed rate of rent was Rs. 27. 50 P.M. In order to avoid ejectment on the ground of non-payment of rent, the rent at the rate claimed was tendered. The Petitioner thereby paid excess amount of Rs. 5,50 P.M. for 17 months (June 1, 1974 to October 31, 1975). The excess amount thus paid was Rs. 93.50. The excess amount paid could be deducted from the rent due to the Respondent-landlord within six months of the date of its payment in terms of Section 8 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereafter the act). The Petitioner made deduction in terms of Section 7 of the Act to the extent of the excess amount paid in the first ejectment application towards the tent that became due to the Respondent with effect from November 1, 1975, onwards The Rent Controller vide order dated December 30, 1978, allowing the deduction of excess amount already paid by the Petitioner to the Respondent in the first ejectment application held that the Respondent has failed to prove that the Petitioner after making the tender of Rs. 555/- was in arrears of rent up to the date of the institution of the ejectment petition. The Petitioner was, therefore, not liable to be ejected on the ground of non-payment of rent. The other ground pressed for the ejectment of the Petitioner was that the shop had been rendered unfit and unsafe for human habitation. The Rent Controller also recorded a finding against the Respondent on this point and consequently dismissed his ejectment application.

The Respondent filed an appeal and the main ground pressed for the ejectment of the Petitioner was non-payment of an ears of rent inasmuch as the tender made was not valid The learned appellate authority opined that the Rent Controller did not exercise the discretion properly by allowing amendment after a year of the commencement of the ejectment proceedings whereby the Petitioner had been allowed to take the plea of adjustment of the excess rent already paid. It was further held that the excess amount already paid could be deducted within six months and the claim of such deduction in the instant case was made after the expiry of six months. The contention on behalf of the Petitioner that irrespective of the fact that the plea of deduction was raised in 1976 the deduction had in fact been made within a period of six months (November 1, 1975 to March 31, 1976) was negatived by the learned appellate authority. The appeal was consequently allowed by order dated May 20, 1980 and the petitioner was held liable to be ejected on the ground of non-payment of arrears of rent. The finding of the Rent Controller that the shop in dispute had not been proved to be unfit for human habitation was upheld. The Petitioner has assailed the orders of the learned appellate authority dated May 20, 1980, in the present revision.

It is not disputed that the agreed rate of rent of the shop in dispute is Rs. 27.50 P.M. including Rs. 2.50 as house tax. It is also admitted that in the first ejectment application filed by the Respondent the latter wrongly claimed Rs. 33/- p. m. as rent including Rs. 3/- as house tax. The Learned Counsel for the parties are agreed that in the first ejectment application the Petitioner paid excess amount of Rs. 5.50 P.M. for 17 months while making the tender for the period June 1, 1974 to October 31, 1975, to avoid his ejectment on the ground of non-payment of rent. The Respondent was thus paid Rs. 93.50 as excess when he received the arrears of rent tendered by the Petitioner in the first ejectment application on December 5, 1975.

The Petitioner claimed adjustment of rent for five months (November 1, 1975 to March 31, 1976) at the rate of Rs. 27.50 P.M. The total adjustment comes to Rs. 137.50. The Petitioner paid Rs. 93.50 as excess while making the tender on December 5, 1975, in the first ejectment application. He also paid Rs. 40.25 by way of property tax to the Respondent in November, 1975, It is not disputed that the Petitioner was not liable to pay property tax to the Respondent. This apart, the Petitioner was not liable to tender rent for the month of July, 1977, to the Respondent in terms of Section 13(2)(i) of the Act inasmuch as the latter had filed the ejectment petition on August 23, 1977.

Under the circumstances explained above, the Learned Counsel for the parties are agreed that in case the excess rent paid in the previous ejectment application and the amount of property tax paid in November, 1975, could be legally adjusted towards the rent due from November 1, 1975, onwards, the Petitioner cannot be held liable for ejectment on the ground of non-payment of arrears of rent and further if this amount could not be adjusted in terms of Section 7 of the Act then the Petitioner will be liable to be ejected on the ground of nonpayment of arrears of rent.

The Learned Counsel for the Petitioner has argued that Section 7 of the Act deals with the recovery of such sums by the tenant from the landlord which by reason of Section 6 of the Act could not be recovered. The sums of which the adjustment is claimed in the instant case are admittedly not related to Section 6 of the Act. The Petitioner, therefore, cannot raise the plea of adjustment in terms of Section 7 of the Act to avoid ejectment on the ground of non-payment of arrears of rent. Reliance has been placed in Bhagat Panju Ram and Others Vs. Ram Lal, The Learned Counsel for the Respondent has contended that the excess amount paid on Decembers, 1975, in the previous ejectment application and Rs. 40.25 paid by way of property tax in November, 1975, could be legally adjusted in terms of Section 7 of the Act. Reliance has been placed on Bhim Sain Vs. Laxmi Narain,

In Bhagat Panju Ram''s case (supra), a learned Single Judge held:

A plain reading of the provisions of Section 8 of the East Punjab Urban Rent Restriction Act, shows that it deals with the recovery of those sums by the tenant from the landlord which by reason of the provisions of the Act were irrecoverable from him. Those are mentioned in Section 6 and 7 of the Act. If the land-lord has recovered from the tenant anything in contravention of the provisions of these sections, those sums can be said to be irrecoverable by the landlord by reason of the provisions of this Act. If such sums are required to be recovered by the tenant from the landlord, then the provisions of Section 8 of the Act would be attached But where the landlord, under a threat of ejectment, recovers from the tenant rent for the period for which he had already received rent and thus receives double payment of rent for the same period, the recovery of such an amount by the tenant does not fall within the provisions of Section 8 of the Act. As a matter of fact, the provisions of the Act have nothing to do with the recovery of such an amount from the landlord, because this amount was illegally recovered by him from the tenant by making wrong representation. A suit to recover such amount from the landlord falls under Article 120 of the Limitation Act, 1908, and not under Article 62.

A contrary view has been taken by a Division Bench in Bhim Sain''s case (supra). In this ease the landlord sought eviction of the tenant before the Rent Controller on a variety of grounds, including the non-payment of arrears of rent at the rate of Rs. 110/- P.M. The tenant claimed that the rate of rent was Rs. 75/- P.M. All the same to avoid eviction, the tenant paid arrears of rent at the rate of Rs. 110/- P.M. Having warded off summary eviction, the tenant applied to the Rent Controller that an issue be struck which should determine the rate of rent-whether it was Rs. 75/- P.M. or Rs. 110/- P.M. The landlord raised an objection that after the tender of arrears of rent, the ground of eviction on the basis of non-payment of arrears of rent had been rendered infructuous. The Rent Controller upheld the objection of the landlord The tenant filed revision in which the Division Bench made the following observations:

It is undisputed that the excess rent paid by the tenant is recoverable by him u/s 7 of the Act and that an action by way of suit is also not barred. The remedies can be availed of within a period of six months of such excess payment as provided in Section 7. The twin question is whether the tenant should file a separate suit to claim refund of the excess payments or can he claim an issue in the eviction petition itself since an event occurring therein gave him the cause of action...One of the foremost considerations for the enactment of Rent Control Laws is restrictions on the quantum of rents Permitting the landlord to take away the excess rent from the tenant frightened to make payment in order to avail of the benefit of the proviso and the Rent Controller wringing his hands that he could do nothing about it would, to our mind, be a fraud on the statute Section 7 of the Act conceives of a situation where refund would be necessary for excess payments of rent made by a tenant. We see no reason why a claim u/s 7 of the Act cannot be determined by the Rent Controller as a cross-claim under the Act. simultaneously with the eviction petition. Such a course to our mind furthers the purposes of the Act rather than frustrate them.

The Learned Counsel for the Petitioner has argued that the Division Bench in Bhim Sain''s case (supra) did not take notice of Bhagat Panju Ram''s case (supra). The provisions contained in Section 8 of the East Punjab Urban Rent Restriction Act are pari materia with Section 7 of the Haryana Urban (Control of Rent and Eviction) Act. It was rightly held in Bhagat Panju Ram''s case that the scope of Section 8 of the East Punjab Urban Rent Restriction Act is limited to Sections 6 and 7 thereof. The contrary view taken by the Division Bench in Bhim Sain''s case (supra) needs reconsideration. I am not impressed by this contention. The phraseology of Section 8 of the East Punjab Urban Rent Restriction Act and that of Section 7 of the Haryana Act is not similar. In Section 8 of the East Punjab Urban Rent Restriction Act, the word used is "irrecoverable" whereas in Section 7 of the Haryana Act the term used is "should not have been paid". The term used in Section 7 of the Haryana Act is suggestive that it has wider application. Bhagat Panju Ram''s case (supra) relates to Section 8 of the East Punjab Urban Rent Restriction Act and Bhim Singh''s case to Section 7 of the Haryana Act. The ratio of Bhim Sain''s case is squarely applicable to the instant case. The excess amount paid to the Respondent by the Petitioner could, therefore, be adjusted in terms of Section 7 of the Haryana Act with the result that the Petitioner could not be held liable for ejectment on the ground of non-payment of arrears of rent.

Another point argued by the Learned Counsel for the Petitioner is that the Respondent could adjust the excess amount in terms of Section 7 of the Act by an overt act (like notice) within a period of six months from the date of payment thereof In the absence of such overt act on the part of the Respondent within a period of six months from the date of excess payment the Respondent could not justifiably claim adjustment in terms of Section 7 of the Act. The contention is without merit. No such overt act is envisaged in section 7 of the Act. The only condition in the matter of adjustment is that it must relate to a period of six months from the date of excess payment. The Respondent could, therefore, adjust the excess amount already paid in terms of Section 7 of the Act towards the rent due from him for the period November 1, 1975, onwards without any overt act within a period of six months from the date of payment of excess amount.

In view of discussion above, the revision is accepted, the impugned order of the appellate authority set aside and that of the Rent Controller restored. No order as to costs.