Sardara Singh vs State of Punjab and Others

V.K. Jhanji, J.—In this petition, challenge is to order dated 19.11.1997 passed by the Financial Commissioner Appeals-I, Punjab, Chandigarh whereby petitioner has been ordered to be ejected.

In brief, the facts are that respondent No. 5 namely, Amarjit Singh son of Kishan Singh filed suit in the Court of Assistant Collector I Grade, Sangrur for rejectment of petitioner, Sardara Singh, from the land in dispute under Sections 7 and 8 of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Act). Respondent No. 5 alleged that petitioner is cultivating the land for the last more than 3 years and had entered in possession of the same as tenant in the year 1986. He further alleged that petitioner had not paid rent for the crops, Kharif 1989 to Rabi 1992. He alleged that petitioner is in arrears of rent and is liable to be ejected on the ground of non-payment of rent. Petitioner contested the suit and in the written statement, contended that he had, been paying rent on harvesting of the crops and was not in arrears of rent. Petitioner also contended that he is not liable to be ejected u/s 8 of the Act. Assistant Collector I Grade, Sangrur, vide order dated 14.1.1994 ordered ejectment of the petitioner u/s 8 of the Act. Since petitioner was ordered to be ejected u/s 8, Assistant Collector I Grade did not pass order of ejectment u/s 7 on the ground of non-payment of rent and only decreed the suit with costs for the recovery of Rs. 82,968/-. Petitioner filed an appeal in the Court of Collector, Sangrur, which was allowed on 25.3.1994. Collector held that u/s 8, tenant is not liable to be ejected on mere expiry of three years term mentioned therein. The learned Collector, however, held that the petitioner had not been able to establish that payment towards rent had been made. Accordingly, the Collector set aside the order of ejectment passed against the petitioner u/s 8, but at the same time directed the petitioner to pay a sum of Rs. 82,968/- in accordance with the decree passed by the Trial Court within six months from the date of the order, failing which petitioner was directed to be ejected from the land. Being aggrieved of the order of Collector, respondent No. 5 preferred an appeal in the Court of Commissioner (Appeals), Patiala Division, Patiala which was dismissed on 25.9.1995. Thereafter, respondent No. 5 filed a revision before the Financial Commissioner, Appeals-I, Punjab, Chandigarh which was allowed on 19.12.1997 solely on the ground that petitioner had failed to deposit costs of the suit. Hence, this writ petition, challenging the order of the Financial Commissioner.

Learned counsel appearing on behalf of the petitioner has contended that in suit, respondent No. 5 had claimed Rs. 82,968/- as rent for crops for the period Kharif 1989 to Rabi 1992, and in pursuance of the order of the Collector, petitioner deposited the rent within the time given by the Collector. It is contended that simply because the petitioner did not deposit the costs of the suit amounting to Rs. 5892.25, he cannot be ordered to be ejected because the costs awarded in the suit cannot be included in rent. In reply, learned counsel appearing on behalf of respondent No. 5 has contended that decree passed against the petitioner is not severable and non-payment of costs will not absolve the petitioner from being ejected.

I have perused the record and heard learned counsel for the parties at length.

Ejectment of the petitioner was sought on two grounds, but as already noticed, petitioner has been ordered to be ejected u/s 7, i.e. he has failed to pay rent as directed by the Assistant Collector. Section 7 of the Act provides as under.

"7. Termination of tenancy.-(1) No tenancy shall be terminated except in accordance with the provisions of this Act or except on any of the following grounds, namely: (a) xxx xxx

(b) that the tenant has failed to pay rent within a period of six months after it falls due:

Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he had failed to pay such arrears during that period.(c) xxx xxx;(e) xxx xxx;(f) xxx xxx.. (2) xxx xxx."

It is apparent from a reading of Section 7 that it enjoins the tenant to pay rent regularly within six months of its falling due. In case he fails to pay rent, he incurs liability for ejectment. By adding proviso to clause(b) of sub-section(l), a further opportunity has been given to the tenant to pay all arrears due within six months from the date of the decree or order and if the payment is made within the said period, then by fiction the tenant is deemed to have paid the rent within time. The object of the proviso is to give one more opportunity to the tenant to stay on the land irrespective of his default, if the tenant pays the rent due within six months from the date of the decree or order.

In the suit respondent No. 5 had sought decree of Rs. 82,968/- alleging that petitioner has not paid rent for the Kharif 1989 to Rabi 1992. Assistant Collector did not pass any order against the petitioner on the ground of nonpayment of rent but only decreed the suit for recovery of Rs. 82,968/- with costs. In appeal, Collector directed the petitioner to pay Rs. 82,968/- towards arrears of rent. It is not in dispute that within the time prescribed, petitioner deposited Rs. 82,968/-. In appeal before the Commissioner(Appeals), respondent No. 5 did not make any grievance in regard to non-deposit of costs of the suit, but only challenged order of the Collector whereby order of ejectment passed against the petitioner u/s 8 had been set aside. The Commissioner dismissed the appeal because he was of the view that the tenant is not automatically liable to be ejected after expiry of three years tenure. It is only in revision before the Financial Commissioner that respondent No. 5 contended that the petitioner had deposited only Rs. 82,968/- and the costs amounting to Rs. 5892.25 have not been paid. On account of non-deposit of costs, respondent No. 5 contended that petitioner is in arrears of rent and is liable to be ejected. Financial Commissioner accepted the plea of respondent No. 5 and ordered ejectment of the petitioner for non-payment of rent on the ground that petitioner had failed to pay the rent together with costs. It is true that petitioner did not deposit, the costs of Rs. 5892.25 but on account of its non-deposit, he cannot be ordered to be ejected. Sub-sections(3) and (4) of Section 4 of the Punjab Tenancy Act, 1887 define ''rent'' and ''arrears of rent''. According to the definition, rent means whatever is payable to a landlord in money, kind or service by a tenant on account of the use or occupation of land held by him and arrears of rent means rent which remains unpaid for the date on which it becomes payable. By no stretch of imagination costs of the suit which were awarded against the petitioner can be included in the definition of rent. Learned counsel appearing on behalf of respondent No. 5 has also not been able to point out any provision in the Act providing a ground for ejectment of a tenant on his failure to pay costs awarded in the decree for recovery of rent. In this view of the matter. I am of the view that since the tenant has paid the arrears of rent as determined by the Assistant Collector I Grade, the finding of the Financial Commissioner to the contrary is not sustainable in law.

Resultantly. the writ petition is allowed and the order of Financial Commissioner quashed. As a consequence thereof, ejectment order against the petitioner too shall stand set aside. No costs