C.R. No. 2375 of 2006 Mohinder Mashih vs. Jagjit Singh Present: Mr.Parveen K.Kataria, Advocate for the petitioner. Mr.RPS Ahluwalia, Advocate for the respondent. **** Mohinder Mashih-petitioner is a tenant with Jagjit Singh- respondent. Respondent had filed an application under Section 13 of the East Punjab Rent Restriction Act 1949 for eviction of the petitioner on the ground of non payment of rent. It is claimed by the respondent that the rate of rent agreed was Rs.1,000/- per month. The tenancy is stated to be oral. It is averred that the tenant had paid the rent up to 30.4.1994 and accordingly ejectment was sought on the ground that he has neither paid nor tendered any arrears of rent from 1.5.1994 up to the date of filing of the application. When put to notice, the tenant claimed that the rate of rent as agreed was Rs.275/- per month and not Rs.1,000/- per month as claimed by the landlord. Thus, on the basis of the pleadings, the rate of rent became one of the issues on which the parties contested the suit. Appreciating the respective evidence led by the parties, the Rent Controller concluded that the rate of rent is Rs.275/- per month and allowed the application for ejectment but subject to the condition that the petitioner-tenant was given 15 days time to deposit or tender the arrears of rent w.e.f. 1.5.1994 till 30.11.2000 @ Rs.275/- per month. The total amount due, as such, worked out to be Rs.21,725/- along with interest of Rs.4,833.81 Paise, which was calculated up to date C.R. No. 2375 of 2006 { 2 } inclusive of cost of the application. While ordering the conditional ejectment of the petitioner, the Rent Controller appears to have relied upon the ratio of law laid down in Rakesh Wadhawan and others vs. Jagdamba Industrial Corporation and others, (2002), 5 Supreme Court Cases, 440. The respondent-landlord, however, went in appeal against this order which was allowed inter alia observing that the Rent Controller should not have passed the conditional order and once it is noticed that the allegation of arrears of rent were proved, the ejectment of the petitioner was required to be ordered from the demised premises. Accordingly, the appeal was accepted and the order passed by the Rent Controller was modified with further direction that the petitioner be ordered to be evicted from the demised shop and hand over the vacant possession thereof to the respondent on or before 20.5.2006. This order is impugned in the present revision petition. Learned counsel for the petitioner contends that the appellate order, impugned in the present revision petition, can not be sustained in view of the law laid down by the Hon'ble Supreme Court in the case of Rakesh Wadhawan (supra). On the other hand, learned counsel for the respondent-landlord contends that the ratio of Rakesh Wadhawan's case (supra) would not apply to the facts of the present case. The learned counsel for landlord has made an attempt to distinguish the case on the ground that the case set up by the tenant was that he is not required to pay any rent and accordingly he can not now be shown any consideration in terms of the law as referred C.R. No. 2375 of 2006 { 3 } to above, which also came during the pendency of the ejectment petition. I have considered the rival submissions of the counsel for the parties. There is not much dispute between the parties that pursuant to this order passed by the Rent Controller, the petitioner had deposited the entire arrears of rent. To my mind, there is no reason for not applying the ratio of law down in Rakesh Wadhawan's case (supra) to the facts of the present case. The Hon'ble Supreme Court in this case has held that in Section 13(2)(i) proviso, the words “assessed by the Controller' qualify not merely the words 'the cost of application' but the entire preceding part of the sentence i.e. the arrears of rent and interest at six percent per annum on such arrears together with the cost of application'. The Court accordingly has viewed that the proviso to Section 13(2)(i) of East Punjab Urban Restriction Act, 1949 casts an obligation on the Controller to make an assessment of (i) arrears of rent (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the 'first date of hearing' after the passing of such order of 'assessment' by the Controller so as to satisfy the requirement of the proviso. It is further held that of necessity, 'the date of first hearing of the application' would mean the date falling after the date of such order by Controller. The Court has even laid down further course of action that would ensue if arrears of rent are tendered or not. It is held as under:- C.R. No. 2375 of 2006 { 4 } “1. On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the Controller. 2. If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case, if the amount deposited by the tenant is found to be in excess, the Controller may direct a refund. If, on the other hand, the amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order directing tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction.” Basically where the dispute between the parties relates to rate of rent, the ratio of Rakesh Wadhawan's case (supra) would apply. In the present case also the parties went into trial in regard to rate of rent. As per the tenant he had already paid the rent due, as such, nothing was due as arrears of rent. The petitioner's case is that he had paid the rent @ Rs.275/- per month, whereas, the landlord was pleading that he is in arrears of rent it being @ Rs.1,000/- per month. It is C.R. No. 2375 of 2006 { 5 } this part of the case that the counsel for landlord respondent has highlighted to say that the ratio of Rakesh Wadhavan's case (supra) would not apply to the facts of the present case. Hon'ble Supreme Court in Rakesh Wadhawan's case (Supra) has advocated assessment of provisional rent to enable the tenant to tender the same to avoid ejectment. As noticed above, the Court has clearly held that word 'assessed by the Controller “ quantify not merely the words 'cost of application' but the entire preceding part of the sentence i.e. arrears of rent and interest etc. No provisional assessment was made by the Rent Controller in this case. He ultimately came to hold the rate of rent being Rs. 275/- and due from 1.5.94. The Rent Controller accordingly passed a conditional order for ejectment. This mode has been approved by the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra) as can be seen in para 29 of the judgment which is as under:- “ The result of the discussion may be summarized. Under proviso to Section 13(2)(i), the Controller having discharged his obligation of passing an order under the proviso, either suo moto or on his attention in this regard being invited by either of the parties, it will be for the tenant to pay or tender the amount provisionally assessed by the Controller on the first date of hearing of the application for ejectment. On compliance the Controller would proceed to adjudicate upon the controversy arising for decision by reference to pleadings of the parties and by holding a summary C.R. No. 2375 of 2006 { 6 } enquiry for the purpose. Such adjudication shall be provisional and subject to the later final adjudication (emphasis supplied) . The finding that may ultimately be arrived at by the Controller may be one of the following three. The Controller may hold that the quantum of arrears as determined finally is (i) the same as was found to be due and payable under the provisional order, (ii) is less than what was determined by the provisional order, or (iii) is more than the one what was held to be due and payable by the provisional order. In the first case the Rent Controller has simply to pass an order terminating the proceedings. In the second case the Controller may direct the amount deposited in excess by the tenant to be refunded to him. In the third case it would not serve the purpose of the Act if the tenant was held liable to be evicted forthwith as is the view taken by the Punjab High Court in the case of Dial Chand (Supra). The Controller directing the eviction of the tenant may pass a conditional order affording the tenant one opportunity of and a reasonable time for depositing the amount of deficit failing which he shall be liable to be evicted (emphasis supplied). This power in the Rent Controller can be spelled out from the use of the word “may” in the expression “The Controller may make an order directing C.R. No. 2375 of 2006 { 7 } the tenant to put the landlord in possession” as also from the principle of equity and fair play that the tenant having complied with provisional order passed by the Controller should not be made to suffer if the finding arrived at by the Controller at the termination of the proceedings be different from the one recorded in the provisional order. While exercising the discretion to make a conditional order of eviction affording the tenant an opportunity of purging himself of the default the Controller may also take into consideration the conduct of the tenant whether he has even after the passing of the provisional order continued to pay or tender the rent to the landlord during the pendency of the proceedings as a relevant factor governing the exercise of his discretion (emphasis supplied). Such a course would be beneficial to the landlord too as he would be saved from the trouble of filing a civil suit for recovery of rent which fell due during the pendency of proceedings for eviction before the Controller.” Having regard to the rival contentions raised by counsel for the parties, the Court came to the conclusion that the rate of rent as agreed through the oral tenancy was @ Rs.275/- per month and not @ Rs.1,000/- per month. Accordingly the petitioner did not have any prior occasion to deposit the rent which was found due. He has concededly complied with the directions passed by the Rent C.R. No. 2375 of 2006 { 8 } Controller in view of the ratio laid down in Rakesh Wadhawan's case (supra). The appellate order, thus, can not be sustained. Accordingly the impugned order under appeal is set-aside. This revision petition is allowed. No costs. (RANJIT SINGH) JUDGE January 18, 2008 anita