Smt. Daya Wanti Sharma vs Dharambir Kala

Mahesh Grover, J.—No one is present on behalf of the respondent despite the fact that the case has been called out twice.

Petitioner is aggrieved by the order dated 23.8.2008 by which the counter claim of the respondent had been allowed and as a consequence thereof the respondent was permitted to recover a sum of Rs. 16,100/- from the petitioner alongwith interest at the rate of 7.05 % per annum.

The case of the petitioner is that he is landlord of the demised premises and he sought ejectment of the respondent on the ground of nonpayment of rent. During the pendency of the petition, the same was dismissed as withdrawn.

Respondent controverted the averments made in the petition and filed counter claim pleading that excess rent has been paid to the petitioner to which he is entitled to recover. The rent petition having dismissed as withdrawn only counter claim was answered.

It is the case of the petitioner that in the event of excess rent having been paid, the same could have been adjusted qua the rent of the subsequent period and counter claim separately could not have been answered because such procedure is alien to the provisions of rent law because provisions of CPC do not apply strictly to the Rent Act.

After hearing Learned Counsel for the petitioner and in the absence of any assistance from Learned Counsel for the respondent, I am of the considered opinion that contentions of the Learned Counsel for the petitioner merits acceptance. It is the settled proposition of law that provisions of CPC do not apply strictly to the Rent Act. Therefore, the counter claim could not have been answered in favour of the respondent, moreso, when the original rent petition qua non payment of rent stood withdrawn. That apart the rent in excess, if paid to the petitioner, could have been adjusted against the future rent, since the respondent continued to enjoy the tenancy. There was thus no occasion for the Court to direct the petitioner to pay a sum of Rs. 16,100/- as has been done by virtue of the impugned order.

Hence, the revision petition is accepted and the impugned order is set aside and the amount as determined by the Appellate Authority shall be adjusted by the petitioner towards the future rent.