Smt. Sushila Devi vs Surinder Sahni

H.S. Bedi, J.—The present petition is directed against the order of the Rent Controller as also the Appellate Authority, made on an application u/s 13 of the East Punjab Rent Restriction Act, 1949, dismissing the application for ejectment filed by the landlady-petitioner.

The facts relevant for the disposal of this petition are that the petitioner who is the owner of Shop cum Flat No. 202, Sector 7-C, Chandigarh, rented the same to the respondent on a monthly rent of Rs. 2100/- as per the lease deed dated September, 1, 1985. Ejectment was sought on the solitary ground that the tenant had failed to pay the rent at the above rate from May 1, 1987 to August 31, 1987. The respondent in the written statement pleaded that the rate of rent was Rs. 2000/- and not Rs. 2100/- per month and, accordingly, tendered the arrears of rent on that basis alongwith interest and costs on the very first date of hearing. This tender was accepted under protest by the petitioner claiming that it was a short tender.

From the pleadings of the parties, the Rent Controller framed the following issues:-

Whether the tender is valid ? OPP.

Relief:

The Rent Controller as also the Appellate Authority, dismissed the ejectment application, holding that as per lease deed Ex. P1, the agreed rate of rent was Rs. 2000/- per month and the stipulation in para 28 thereof that in case the possession of the disputed premises was not delivered on the expiry of the period of the lease that is August 31, 1986, the lessee would be liable to pay an enhanced rent, could not be enforced in view of the law laid down by this court. Aggrieved by the orders aforesaid, the present petition has been filed.

Mr. M.L. Sarin, learned Senior Advocate, for the petitioner has urged that the judgments relied upon by the Courts below had been impliedly overruled by a Division Bench Judgment rendered by this Court and reported as Smt. Hardev Kaur and Others Vs. Ghazal Restaurant and Others, and as such the stipulation in paragraph 28 above referred, could be enforced.

Mr. D.V. Sharma, learned counsel for the respondent has urged that the Judgment aforementioned was, however, no longer good law in view of the Judgment of the Supreme Court reported as Bhoja alias Bhuja Ram Gupta v. Rameshwar Agarwala and Ors. 1993(1) R.C.R. 484.

I have gone through the judgments cited by the learned counsel for the parties and find that the present petition deserves to succeed. In Hardev Kaur''s case (supra) it has been specifically held that the bar not to increase the rent which had been imposed by Section 6 of the Act applied only in a case where fair rent had been fixed, but except in that situation there was no bar to the increase of rent mutually agreed upon by the contracting parties. For reaching this conclusion it was held that the word "rent" did not occur in Section 7 of the Act and, therefore, there was no prohibition imposed on the landlord to seek the increase of the rent by mutual agreement although he was specifically debarred u/s 6 from claiming or receiving any premium or other like sum in addition to the fair rent or any rent in excess of such fair rent. The Division Bench observed thus:-

"If fair rent has been fixed in respect of a demised premises, the landlord is prohibited under this Section from charging anything in excess of the fair rent from the tenant. If fair rent has not been fixed, there is no prohibition for increase of prevailing rent by mutual agreement by the parties. The terms of the contract providing for increase of rent have to be observed by both the contracting parties."

The Division Bench also relied upon certain observations made by the Supreme Court in Mangat Rai and Another Vs. Kidar Nath and Others, and observed that so long as the fair rent was not fixed by the Rent Controller, the parties were free to agree to the payment of any rent at any rate and neither the provisions of Section 6 nor Section 19 would be attracted to such a case. The Division Bench also while summing up the entire discussion observed that the Act did not forbid the parties from entering into a bilateral agreement for periodical increase of rent except when Section 6 of the Act was attracted. Mr. D.V. Sharma''s reliance on Bhoja Ram''s case (Supra) is absolutely misplaced. In this case, the primary question posed before the Supreme Court was that as to whether the excess rent received by the landlord could be adjusted against the arrears due from the tenant. It is in this connection while construing Section 4 of the Bihar Buildings (Lease, Rent and Eviction), Control Act, the Supreme Court observed that this was not permissible as there was a complete prohibition, imposed on the landlord by that Section to seek an increase of the rent stipulated in the lease deed. Concededly, there is no equivalent Section in the Act. The Judgment of the Supreme Court, therefore, does not held the respondent''s case.

Faced with this situation, the learned counsel for the respondent has, urged that admittedly, the short tender was only of four hundred rupees and this tender was made in view of the settled law at that time. It is true that the respondent is facing ejectment for non-payment of a paltry amount and it can be taken judicial notice of that the premises would fetch a much higher rent if put out in the open market again. He has, therefore urged that some consideration be given to this argument. Be that as it may, being bound by the Division Bench Judgment, I can offer nothing but my profound sympathies to the respondent.

In the light of what has been held above and particularly on the face of the Division Bench, the judgments of this Court relied upon by the Rent Controller as also the appellate authority on the question posed are held to be no longer good.

For the reasons recorded above, the present petition is allowed, the orders of the Rent Controller as also the appellate authority are set aside and the ejectment of the respondent is ordered. However, the respondent is given two months time to vacate the premises in case he deposits all the arrears at the rate of Rs. 2100/- per month as also the advance rent for the period in question within a period of one month from today and also files an undertaking before the Rent Controller to vacate the premises in dispute on the expiry of the aforesaid period. No costs.