Ujagar Singh vs Prem Kumar

Rajindra Nath Mittal, J.—This revision petition has been filed by Ujagar Singh landlord against the order of the Appellate Authority, Faridkot, dated 28th September, 1977, accepting the appeal and dismissing the petition for ejectment.

Briefly, the facts are that the Petitioner gave the property in dispute to the Respondent vide rent note dated 17.1.1973 Exhibit A-1 for a period of 11 months. The rent fixed between the parties was Rs. 300/- per mensem. The Petitioner filed a petition for ejectment against the Respondent on 1.3.1975 inter alia on the ground that the rent from 17.3.1973 upto date had not been paid He took another ground as well, but that does not survive now

The Respondent appeared on 19.7.1975 and tendered Rs. 7,200/- as rent, Rs. 432/- as interest, and Rs 25/- as costs. He further made a statement that the rent had been paid for the period from 17.3.1973 to 25.2.1975. The landlord made a statement that the interest was less and he was accepting it under protest.

The main question which arose before the Rent Controller was whether the tender of rent was proper or not. He held that Rs. 700/- was due from the Respondent as rent from 17.3.1973 to 1.3.1975, Rs. 595/- as interest from 17.3.1973 to 19.7.1975 at the rase of 6% P. A. and Rs. 7,670/- was due from him, whereas he tendered Rs. 7,657/-. Consequently the amount tendered was short by Rs. 13/-. In view of the above finding he accepted the petition and ordered ejectment of the Respondent. The latter went up in appeal before the Appellate Authority, who held that the Respondent became a statutory tenant after the expiry of the period of tenancy. Therefore, the terms of the rent note ceased to be applicable to him and he would be governed by Section 13(2)(i) of the East Punjab Urban Rent Restriction Act. According to that section on the date of filing the petition i. e. 1.3.1975 the Petitioner was entitled to the rent upto 31.1.1975 which came to Rs. 6,760/-. The balance amount of Rs. 917/- left with him was sufficient to cover the amount of interest and costs. Consequently, it accepted the appeal and dismissed the application for ejectment. The landlord has come up in revision to this Court

The first contention of Mr. Majitha is that after the expiry of the period of tenancy the terms of the rent note regarding payment of rent will govern the parties in spite of the fact that the respondeat became a statutory tenant. In support of his contention he hat placed reliance on Kai Khushroo Bezonjee Capedia v. Bai Jerbai Hirjibhoy Warden AIR 1949 P. C. 124, Dayal Chand v. The Union of India (1970) 2 R. C. R. 205, and Daya Wanti v. Shri Parshotam Dass (1981) 83 P. L. R. 352. On the other hand Mr. Sood has argued that after the expiry of the lease, the Respondent became a statutory tenant u/s 13(2)(i) of the Act and the terms of the rent note ceased to apply to them.

I have heard the learned Counsel for the parties at a considerable length. However, I agree with the submission of Mr. Majithia. The rent note in the present case was for a period of 11 months and after the expiry of the period of tenancy the Respondent became a tenant holding over. Whether the terms of the rent note will be applicable to the tenant holding over or not has been dealt with lucidly in Kai Khushroo Bezonjee Capadia''s case (supra). Mukherjea J. as he then was speaking for the Court observed thus:-

..............the tenancy which is created by the "holding over" of a lessee or under-lessee is new tenancy in law even though many of the terms of the old lease might be continued in it, by implication ; and it cannot be disputed that to bring new tenancy into existence, there must be a bilateral act. What S. 116, T. P. Act, contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee''s or sublease''s continuing in occupation of the property after his interest has ceased and on the other side there must be a definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it.

A similar matter came up before a Division Bench of this Court in Dial Chand''s case (supra) Mahajan J. following the above observations, held that by implication, the terms of lease embodied in the original contract would be deemed to be the terms of the lease in the new contract.

It is clear from the above observations that the rent note executed by the tenant does not become obsolete after the expiry of the period of tenancy but many of its terms govern the parties even subsequently Section 13(1) of the Act inter alia provides that a tenant in possession of a building shall not be evicted there from after the termination of the tenancy except in accordance with the provisions of that section. There is no provision in. the Act that after the expiry of the tenancy, all the terms and conditions in a rent note governing the parties cease to apply I am, therefore, of the view that the above observations apply to the statutory tenants as well. Thus, all the terms in the rent note applicable to the tenants holding over except those which contravene the provisions of the Act will remain applicable to the statutory tenants. I am fortified in the above view by the observations in Daya Wanti''s case (supra). The learned Counsel for the Respondent placed reliance on Sat Pal v. Ram Chand 1971 Cur L.J. 972. In that case no such contention as has been raised in this case was raised. In the circumstances, the counsel for the Respondent cannot drive any benefit from the observation in that case.

Adverting to the facts of the present case the Respondent became a statutory tenant on 17.12.1973. Therefore, his tenancy was from 17th of each month to 16th of the subsequent month. According to the terms of the rent note, he was liable to pay rent of each month in advance by 5th of every month. Thus the rent from 17.12.1973 to 16.1.1974 (December-January) became due on 5th January, for the month of January-February on 5th of February, and for the month of February-March on 5th of March, and so on. At this stage it is relevant to read Section 13(2)(i) which it as follows:-

13(2)(i) -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 application, 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 en 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.

It is clear from the section that if there is an agreement between a tenant and landlord according to which the tenant is requirnd to pay rent by a particular date, he can pay the rent within 15 days after the expiry of the time fixed in the agreement of tenancy Therefore, in the present case, the Respondent could pay the rent relating to December-January by 20th January, January-February, by 20th February. February-March by 20th March and so on.

It is not disputed that the rent from 17.3.1973 was due from the Respondent. On the first date of hearing he was liable to pay rent which was due on the date of filing the application. The present petition was filed on 1.3.1975 The rent due on that date was for 23 months which came to Rs. 6,900/-. Admittedly, he paid Ps. 7,200/-as rent Thus there was an excess of Rs. 300/- on this count It is well settled that if excess rent is paid by the tenant he is entitled to get it adjusted towards the interest and costs (See Jaswant Rai v. Devides 1973 R. C. J. 698.), It is not disputed that if Rs. 300/- are adjusted towards interest, the amount of interest tendered is more than what the tenant was required to pay.

For the aforesaid reasons, I do not find any merit in the revision petition, though on different grounds and consequently, it stands dismissed. However, I leave the parties to bear their own costs.