Rattan Chand vs Jagmohan Singh

Mahajan, J.—This petition for revision is directed against the order of the Appellate Authority allowing the landlord''s application for eviction of the tenant.

An application was made in the first instance by the landlord on the 3rd of October, 1968, claiming rent at the rate of Rs.25/- per mensem from the tenant from 1st of October, 1967. That application was dismissed on the 11th of June, 1969 because the Rent Controller accepted the plea of the tenant that there was no relationship of landlord and tenant between the parties. It may be mentioned that at the first hearing neither the rent due nor interest or costs were paid by the tenant, though the costs were assessed by the Rent Controller. The landlord then appealed and during the pendency of the appeal the landlord filed a second application on the 9th of January, 1970. In this application, again rent was claimed from 1st October, 1967, to 31st December, 1969. On the 4th of March, 1970, the tenant paid the rent claimed without prejudice to his right to a decision that he was not the tenant of the landlord. This application was dismissed on 4th of March, 1970, because arrears of rent with costs and interests had been paid.

The appeal that had been filed in the first application, was allowed by the Appellate Authority and it was held that the relationship of landlord and tenant existed between the parties. Against that decision, the present petition for revision has been filed by the tenant.

The contention of the tenant is that the ground on the basis of which eviction has been ordered, namely non-payment of arrears of rent at the first hearing, was not available to the landlord in view of the second application filed by him in which those arrears had been claimed. For this contention, reliance has been placed on M/s. Bagarian Armoury v. Rakha Ram 1966 P LR 847. Mr. R. L. Aggarwal, who appears for the landlord, on the other hand, contends that this decision is distinguishable, and, in any case, the costs of the first application cannot be said to have been cleared because that application was still pending and on the basis of non-payment of costs the tenant had suffered eviction. His further contention is that the tender in the second application was a conditional tender and, therefore, that was no tender in law which would take away his plea of non-payment of arrears of rent in the first application. Mr. Sarin, for the tenant, meets the argument of Mr. Aggarwal regarding conditional tender by reference to the decision of Harnam Singh J. in Maya Ram v. Shivji Maharaj Idol Mandir, Shawla, Batala, Civil Misc. No. 141 of 1955, D/- 22-8-1955 (Punj), wherein such a tender was held to be not a conditional tender. Mr. Aggarwal disputes the correctness of this decision as well.

This is a matter which is of considerable importance on both the aspects and is likely to arise frequently. As no letters patent appeal lies against my decision, it would be proper that this case is heard by a larger Bench. I, therefore, direct that the papers of this case be laid before my Lord the Chief Justice for constituting a Division Bench for disposal of this case.

ORDER OF DIVISION BENCH

Mahajan, J.

This case was referred by me to a Division Bench in order to consider the question whether non-payment of costs of the first application for eviction would furnish a ground for eviction u/s 13(1) and 13(2)(I) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) after a second application covering the same period has been made and in the second application the proviso to S. 13(2)(I) has been complied with. It is not necessary to state the facts because they are fully set out in the referring order which should be read as part of this order.

The first contention of Mr. Ram Lal Aggarwal, learned counsel for the respondent is that the costs of the first application were not paid and, therefore, the tenant is still in arrears. In order to appreciate this contention it will be proper to first notice the language of Section 13(2)(I) and the proviso which are set out below:--

"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 applicant, is satisfied-

(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 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 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."

The scheme of the section is that when tenant is in arrears of rent by not paying the rent within fifteen days after the time fixed in the agreement of tenancy or in absence of any time fixed, by the last day of the month next following, he incurs a liability to eviction on that ground. But the proviso, however, enables him to offset this liability in case he pays or tenders the arrears of rent with interest and costs of the application on the first hearing if application u/s 13(2)(I) is made. The effect of such payment is that the tenant is deemed to have duly paid or tendered the rent within the time mentioned in S. 13(2)(I). It is a well settled rule that by reason of the deeming proviso an unreal state of things must be assumed to be real, that is, though the payment is made not as provided in S.13(2)(I), it will be deemed to have been so made by reason of the proviso. Now if this scheme is kept in view, the case will present no difficulty. The landlord made the first application for eviction. In that application the arrears were not tendered in the first hearing and the tenant would have been evicted but for the tenant''s plea which prevailed with the Rent Controller that the applicant was not his landlord. The landlord appealed. he did not wait for the result of his appeal but he took a further step. He filed a new application, that is, a second application for eviction of the tenant covering the same period for which the first application had been filed. It was also averred that rent was also in arrears of the further period that had expired after the first application. The period that expired between the first application and the second application was also mentioned. The over-all ground for eviction was non-payment of rent. In the second application the tenant tendered the rent in arrears, on the first hearing with interest and the costs of the application. He however reserved his right to prove his plea in the appeal that had been filed by the landlord that he was not a tenant of the applicant. The second application failed in view of the payment made under the proviso. The result is that the payment so made would be deemed to have been made in time within the meaning of Section 13(2)(I) of the Act.

In the appeal the Appellate Authority, came to the conclusion that there was relationship of landlord and tenant between the parties. Having come to that conclusion it allowed the application holding that non-payment of the costs of the first application would result in the eviction of the tenant under the proviso to Section 13(2)(I).

The short question is, is the non-payment of the costs of the first application a ground which would make the tenant liable to eviction? In our opinion, it is not. When the first application came for decision the eviction could only be ordered if the tenant was in arrears within the meaning of Section 13(2) (I) of the Act and on that the Appellate Authority held that he was not in arrears of rent by reason on his having cleared the rent in the second application. The non-payment of costs of the first application had no meaning. It would have had some meaning if the tenant was in arrears of rent. But on the date of the decision of the appeal in he first application, the tenant was not in arrears of rent. So the question of payment of costs did not arise. In this view of the matter, the order of the Appellate Authority ordering eviction of the tenant cannot be permitted to stand. In addition to it is the argument which prevailed with Mehar Singh C. J. (as he then was). (1966) 68 P LR 847 wherein the learned Judge observed as follows:--

"No doubt, the tenant by not having complied with the proviso to Clause (I) of sub-section (2)of S. 13 of the Act on the first date of hearing of the first eviction application became liable to ejectment, but nothing stopped the landlord to say that he still accepted the balance due and did not want to evict the tenant. This the landlord could do. But it is said that in this case he has done nothing of the sort. It is true to this extent that he has not stated so expressly, but does his conduct not amount to as much? On the date on which the second eviction application was filed, the first eviction application was still pending in which arrears of rent had been claimed down to its date, that is to say down to April 22, 1963. In the second eviction application made on April 8, 1964, the landlord did not confine his ground of eviction to arrears due between April 22. 1963 and April 8, 1964, but based his claim for eviction on arrears between October, 1959 and April 8, 1964. In this way, he covered the whole of the period of arrears of rent, subject-matter of the first eviction application. If on the date of the first hearing of the second eviction application the tenant had paid arrears only between April 22, 1963 and April 8, 1964, with interest and costs on the application, it would then have been pointed out by the landlord that even in the case of second eviction application the tenant was not complying with the proviso to Clause (I) of sub-section (2) of S. 13. So, that in the two eviction applications pending at one and the same time, the landlord based his claim for eviction on arrears for the same period between October, 1959 and April 22, 1963.

If the landlord placed the tenant in such a curious position and based his claim for eviction of the tenant for the total amount of arrears from the beginning, that is to say from October, 1959, he thereby, in my opinion, rendered his first eviction application for all practical purposes infructuous. If the matter stood there and nothing else took place, it might still have been said that he was still pursuing both the applications at the same time. But here when on the first date of hearing of the second eviction application full compliance of proviso to Clause (I) of sub-section (2) of S. 13 was made by the tenant and the landlord obtained dismissal of his eviction application then he did so not only in relation to the arrears for a part of the period but for the whole of the period from October, 1959, down to the date of the second eviction application. He thus pressed his claim on arrears, at least for a quite a part unrealisable because of bar of time, and in the second eviction application successfully realised even such time-barred arrears under the proviso to Cl.(I) of sub-section (2) of S. 13. If then, as has happened, the landlord unreservedly accepted those arrears and on the acceptance of the same eviction application voluntarily dismissed, he is estopped from continuing the first eviction application on the basis of the arrears of rent already paid at the time of the decision of the second eviction application. No doubt in the first eviction application the provisions of the proviso to Clause (I) of sub-section (2) of S. 13 were not complied with, but during its pendency the landlord by his own act and conduct created a situation from which he cannot be permitted to resile and take a conflicting stand that he can still persist to claim eviction of the tenant on the basis of arrears non-existent on the date of the order sought by him in the first eviction application. The ground for that had by then ceased to exist because by obtaining dismissal of the second eviction application in this manner, the landlord has undertaken as much that he is not to evict the tenant on that ground and in the circumstances the ground ceased not only for the second application, but for the first eviction application as well. By accepting payment under the proviso to Clause (I) of sub-section (2) of S. 13, he accepted compliance of the proviso and at the same time waived his claim under the first eviction application. Emphasis has been laid by the learned counsel for the landlord on this that as soon as there was non-compliance of the proviso to Clause (I) of sub-section (2) of S. 13, the right of the landlord to have the tenant evicted was complete, and it is said that nothing done by the landlord subsequently can take that right away from him. If this was the position and the tenant was held liable to eviction, on this ground, on the date of the first hearing of the first eviction application, there could then arise no occasion for the second eviction application. This would mean that the second eviction application was only a device for realisation of at least partly time barred arrears of rent. It was in substance an application for recovery of the arrears of rent, which would have at least failed to the extent of the part the arrears were time barred, and has only succeeded because the landlord has chosen to treat it as an application for eviction based on the ground of non-payment of arrears of rent. In this manner, he for all practical purposes, did something which took away any right which he had arising out of the first eviction application.

But by his conduct the landlord has done so much as to say that he accepts the whole of arrears down to the date of second eviction application and does not seek eviction of the tenant. When he withdrew his second eviction application, accepting the whole of the amount paid under that application as stated, he did not make a statement that he accepted the amount without prejudice to his rights in regard to the first eviction application. In one way the landlord forced the tenant by the second eviction application to pay all the arrears, under the guise of the tenant no getting advantage to the proviso to Clause (I) of sub-section (2) of S. 13 if he did not pay the whole of the arrears on the date of the first hearing of that eviction application and when the tenant has complied (with?) the proviso with regard to that application, he is still being evicted under the first eviction application. The landlord cannot be permitted to blow hot and cold in the same breath in the manner. He cannot be permitted to have advantage over the tenant by such device. If he choose to make the second eviction application in the manner in which he has done, and on the basis of the arrears from the beginning, that is to say from October, 1959, sought eviction of the tenant he cannot after those arrears have been paid still be permitted to seek eviction of the tenant under his first eviction application for the arrears already paid and accepted in the circumstances of the case. So, the landlord has been by his conduct estopped from pursuing the first eviction application. In my opinion, the first eviction application was rendered infructuous by the decision of the second eviction application, the conduct of the landlord estopped him from pursuing his first application and in any case from the totality of the circumstances it is almost unequivocal inference that the landlord waived his claim under the first eviction application.

This additional argument does appeal to us. Mr. Ram Pal Aggarwal, learned counsel for the respondent tried to draw a distinction that in case before Mehar Singh, C. J., (as he then was) the costs of the first application had been paid but that is not the ground on which the learned Judge proceeded to hold that the second application would, in fact, wipe out the first application.

There is a third ground which was either urged before me in Single Bench or taken by either of the counsel, namely, the effect of Section 14 of the first application. Section 14 reads thus:

"The Controller shall summarily reject any application under sub-section (2) or under sub-section (3) of S. 13 which raises substantially the issues as have been finally decided in a former proceeding under this Act."

The second application was decided first and the effect of that decision had to be seen on the first application. The ground covered by both the applications being the same, the final decision in the second application must bar the first application. So far as rule of roes judicata under the CPC or its application on general principles is concerned, it is well stated that a final decision though arrived at in a later proceedings would operate as roes judicata in prior proceedings provided they are pending. In the present case the decision of the Rent Controller in the second application having become final would operate as roes judicata so far as the appeal in the first application is concerned. On this ground also the present petition must succeed.

The learned counsel for the respondent had urged that the tender was a conditional tender when the case was argued before me in Single Bench. This point was not seriously pressed before us. In fact, it is concluded by a number of decisions of this Court and reference may be made to Philip Hardless Handwriting Expert v. Sat Parkash, Civil Revn. No. 403 of 1964, D/- 17-12-1965 (Punj); Maya Ram v. Shivji Maharaj Idol Mandir, Batala, Civil Misc. No. 141 of 1955, D/- 22-8-1955 (Punj) and Ruldu v. Umar Din. ILR (1961) P&H 779.

For the reasons recorded above, we allow this petition, quash the order of the Appellate Authority and reject the first application in which the eviction of the tenant had been ordered. In the circumstances of the case, however, we leave the parties to bear their costs throughout.

Petition allowed.