State of Haryana vs Sohan Singh, Mohan Singh, Gurmail Singh, Malkiat Singh, Sukhdev Singh, Smt. Gian Kaur and Others

K.C. Gupta, J.—This revision petition has been directed by the State of Haryana against order dated 19.12.1984 passed by the appellate Authority, Chandigarh, vide which the appeal of the respondents (landlords) was accepted and the order dated 26.10.1983 passed by the Rent Controller, Chandigarh, was set-aside vide which he had dismissed the petition of the respondents for the respondents for ejectment of the petitioner.

Briefly stated, the facts are that Sohan Singh etc., respondents (landlords) filed a petition u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short, "the Act") as applicable to U.T. Chandigarh through their attorney Mohan Singh and sought ejectment of the petitioner from second floor of SCO No. 57-58-59, Sector 17-C Chandigarh, which was under tenancy with it on payment of Rs. 3100/- per month besides water and electricity charges. The only ground claimed for ejectment was non-payment of arrears of rent from 1.2.1982 to 30.6.1982 amounting to Rs. 15,500/-.

Notice of the petition was issued to the petitioner (State of Haryana), which was served for 21.8.1982. However, on 21.8.1982, none appeared on behalf of State of Haryana. Hence, it was proceeded against expert and the case was fixed for expert evidence for 3.9.1982.

On 21.8.1982, it was Saturday and on 22.8.1982, it was Sunday. On 23.8.1982, an application was moved by the petitioner through Government Pleader for setting-aside expert order dated 21.8.1982 stating that the State was under the impression that there might be holiday in the Courts on 21.8.1982 as on that day Haryana Government offices were closed and as such, none appeared on behalf of the State of Haryana under the mistaken belief, so, the expert proceedings, be set-aside. Prayer was also made for allowing it to deposit rent, costs and interest which were ready with it.

Notice of this application was given to the respondent-landlords. They resisted the prayer by filing reply and stated that the rate of rent was in fact Rs. 4560/- per month, although they had claimed only Rs. 3100/- per month for the period 1.2.1982 to 30.6.1982 but in fact, it was in arrears from 1.3.1982 onwards. They next stated that since the Haryana State could not arrange for the arrears of rent, therefore, none of its official appeared intentionally on 21.8.1982, which was a working day in the Courts, although it might be a holiday in the State of Haryana. They further stated that the experte proceedings should not be set-aside as a valuable right had accrued to them by its default to seek its eviction for non-payment of rent.

On 8.2.1983, a sum of Rs. 16,577/- was tendered as rent on behalf of State of Haryana. Written statement was also filed.

The following issues were framed;

"1. What is the first date of hearing? OPP

Relief."

It was held by the Rent Controller that the arrears of rent alongwith costs etc. were tendered on 8.2.1983, although expert proceedings were not set-aside on that day and the same were set-aside on 26.10.1983, so, the first date of hearing in the case was when expert proceedings were set-aside on 26.10.1983 and since the arrears of rent etc. had been tendered on 8.2.1983, therefore, the rent had been validly tendered. Consequently, the Rent-Controller dismissed the petition for ejectment of the petitioner from the demised premises.

Aggrieved by the said order, the landlords filed an appeal which was accepted by the appellate Authority vide order dated 19.12.1984 and it was held that there was no reasonable ground for setting-aside expert order dated 21.8.1982.

Aggrieved by the said order, State of Haryana has filed the present revision petition.

I have heard Shri Girish Agnihotri, Additional Advocate General, Haryana, for the State (petitioner), Shri M.L. Sarin, Senior Advocate with Mr. Yogesh Dutt, Advocate, for the respondents and carefully gone through the record.

It is an admitted fact that the respondents are the landlords of SCO No. 57-58-59, Sector 17-C, Chandigarh. They had let out the second floor of the said premises on rent on the State of Haryana at the rate of Rs. 3100/- per month besides water and electricity charges. The respondents had claimed the ejectment of the petitioner from the demised premises on account of non-payment of rent for the period form 1.2.1982 to 30.6.1982 amounting to Rs. 15,500/-. Later on it stated that the rent is being claimed from 1.3.1982 onwards and not from 1.2.1982. The petitioner had tendered a sum of Rs. 16,577/- on 8.2.1983 i.e. rent for the period 1.3.1982 to 30.6.1982 @ Rs. 3100/- per month amounting to Rs. 12,400/-, interest Rs. 4142/- and costs of Rs. 35/- as assessed. Therefore, the valid tender of arrears of rent had been made. The only question to be determined is whether there was sufficient cause to set-aside the expert proceedings dated 21.8.1982. There is no dispute about it that on 21.8.1982, it was Saturday and on 22.8.1982, it was Sunday and the application was moved for setting-aside expert proceedings on 23.8.1982. In the application, it was categorically stated that they be allowed to deposit the rent, costs and interest, which were ready with it. The State of Haryana ultimately, without waiting for setting-aside the expert proceedings, deposited the arrears of rent etc. on 8.2.1983 and also tendered interest and costs as assessed by the Rent Controller. Therefore, certainly, the Rent Controller had applied its mind on 8.2.1983, although expert proceedings were set-aside on 26.10.1983.

It is true that the petitioner was required to appear in the Court on 21.8.1982 but on that day, none of its official appeared and as such, it was proceeded against expert. On 21.8.1982, the Rent Controller had not assessed the costs and, thus, had not applied its mind because a duty is cast upon the Rent Controller to assess the costs. u/s 13 (2) proviso of the Act, as applicable to the U.T., is 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 6% per annum, on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to be duly paid or tendered the rent within the time aforesaid. The Hon''ble Supreme Court in number of cases, while interpreting the critical expression "FIRST HEARING" enunciated the law as under:-

"The question of law raised before us may perhaps be pronounced upon as it is of general importance. Section 20(4) of the Act fixed the crucial date for deposit of rent as "at the first hearing of the suit", what is "the first hearing of the suit"? Certain decisions have been cited before us of the Allahabad High Court which indicate that "the first hearing of the suit" is when, after framing of issues, the suit is posted for trial, that is, production of evidence....We see none here and therefore, adopt as correct the decision of the High Court regarding the meaning of the expression "at the first hearing of the suit". We may however add that the expression "at the first hearing of the suit" is also to be found in Order 10, Rule 1, Order 14, Rule 1(5) and Order 15, Rule 1 of the Code of Civil Procedure. There provisions indicate that "the first hearing of the suit" can never be earlier than the date fixed for the preliminary examination of the parties (Order 10, Rule 1) and the settlement of issues (Order 14, Rule 1(5))."

Therefore, the first date of hearing means the date on which the Court applies its mind to determine the case and not the date fixed for return of summons. The Rent Controller, on 21.8.1982, did not apply its mind, nor assessed the costs but simply proceeded the petitioner experte and as such, it cannot be said to be the first hearing. The costs were actually assessed on 8.2.1983 and it can be said that the Rent Controller had applied its mind on that date but since actually the expert proceedings were set-aside vide order dated 26.10.1983, so, 26.10.1983 will be deemed to be the date of first hearing. Suppose a tenant puts in appearance and a date is fixed for assessment but on that day tenant does not appear and costs and interests are assessed by the Rent Controller, then that will be considered to be the first date of hearing. This has been so observed in Kishan Chand v. Hari Singh 2000 (1) RCR 25 (P&H). If the Rent Controller had assessed the costs and interest on 21.8.1982, although the petitioner had not appeared, then it would have been deemed to be the first hearing.

Otherwise also, there appears to be a bonafide mistake on the part of the employees. However, the very fact that the official had appeared on 23.8.1982 and had moved an application for setting-aside expert proceedings and had also stated that the State was prepared to tender arrears of rent, costs and interest suggests that there was a bonafide mistake in not appearing on 21.8.1982. The finding of the appellate Court that the first date of hearing was 21.8.1982 is totally wrong. It cannot be imagined that the State was not ready with the arrears of rent etc. and as such, its official did not intentionally appears on Saturday. Thus, in view of the discussion above, I hold that the first date of hearing was not 21.8.1982 but it was when the Rent Controller had set-aside the expert proceedings or when the Rent Controller had applied its mind and had determined the costs and interest.

Counsel for the respondents vehemently contended that the petitioner was having the demised premises at a very meagre rent of Rs. 3100/- per month and at present it could fetch more than Rs. 50,000/- per month and in such circumstances, a compassionate view should be taken. In my opinion, the contention of learned counsel cannot be accepted. It is for the State of Haryana to increase the rent or the landlords can apply u/s 4 of the Act for enhancement of the rent.

Therefore, the revision petition is allowed and the order of the appellate Court is set-aside being illegal and that of the Rent Controller is restored.