CR No.1879 of 2001 (O&M) -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1879 of 2001 (O&M) Date of decision:20.01.2011. Manoj Kumar ...Petitioner Versus Jai Pal and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. B.R.Mahajan, Advocate, for the petitioner. ***** RAKESH KUMAR JAIN, J. The tenant is in revision against the orders of the Courts below by which ejectment petition filed by the landlord has been allowed on the ground of non-payment of rent. In brief, the landlord had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] against the petitioner and his brother Vijay Kumar alleging therein that they were inducted as tenants in the demised premises on a monthly rent of `400/- by way of a rent note dated 01.07.1991. It is further alleged that the petitioner/tenant and his brother have neither paid nor tendered the rent w.e.f. 02.01.1994 to 31.05.1994 @ `480/- per month and from 01.06.1994 up to date @ `520/- per month, as per the terms and conditions of the rent note. In reply, rate of rent, commencement of tenancy and execution of rent note were admitted, but being in arrears of rent was denied. It was alleged that the landlord has already received rent of `4150/- for the period from 01.06.1993 to 01.01.1994 paid on 06.06.1994 and `10000/- for the period from August 1992 to April 1995 paid on 05.08.1992 against receipt, which was decided by the Court of Shri B.S.Mangat, Rent Controller, Amritsar on 09.12.1995. In view of these pleadings, following issues were framed on CR No.1879 of 2001 (O&M) -2- ******* 20.11.1996 by the learned Rent Controller: - “1. Whether the respondent is in arrears of rent w.e.f. 02.01.1994 to 31.05.1994 at the rate of Rs.480/- p.m. and from 01.06.1994 till date at the rate of Rs.520/- , if so, its effect?OPA. 2. Whether the applicant has no locus standi to file the present suit?OPR. 3. Whether the applicant has already received the sum of Rs.4150/- for the period from 01.06.1993 to 01.01.1994 and a sum of Rs.10,000/- for the period from August, 1992 to April, 1995. If so, its effect?OPR. 4. Relief.” Admittedly, on the first date of hearing, no tender was made by the petitioner and his brother for the rent demanded by the landlord w.e.f. 02.01.1994 to 31.05.1994 because their specific stand was that they had already paid the entire rent for the period in question. After appraisal of evidence, the learned Rent Controller came to the conclusion that even if the petitioner had claimed to have paid `10,000/- as advance rent for the period from August 1992 to April 1995, i.e. for the period of 32 months, @ `480/- per month, the rent would come to `15,360/-. Hence, there were arrears of rent which made the petitioner liable for ejectment and the petitioner and his brother were ultimately ordered to be ejected by the learned Rent Controller on 02.05.1998, which was approved by the learned Appellate Authority vide its order dated 22.02.2001 by dismissing the appeal. Shri B.R.Mahajan, learned counsel appearing on behalf of the petitioner, has argued that the order of the learned Rent Controller is patently illegal because in a petition filed by the landlord for eviction on the ground of non-payment of arrears of rent, the tenant had taken a plea that he had already paid the entire arrears of rent and the learned Rent Controller, on appreciation of evidence, finds that the tenant had not, in fact, paid the arrears of rent, then the learned Rent Controller had to give a second opportunity to the tenant to CR No.1879 of 2001 (O&M) -3- ******* make payment of the arrears of rent, as per final adjudication. In this regard, he has relied upon a decision of this Court rendered in the case of Kaushalya Rani (Dead) through LRs Vs. Sham Lal and another, 2007(4) RCR(Civil) 318. I have heard learned counsel for the petitioner and perused the record with his able assistance. In the present case, the ejectment of the tenant is sought on the ground of non-payment of rent, whereas it is defended on the ground that the rent has already been paid and nothing was due, however, on appreciation of evidence, the learned Rent Controller had found that the tenant had not, in fact, paid the arrears of rent and passed the order of ejectment. This Court, in the case of Kaushalya Rani (Dead) through LRs (supra), has observed as under: - “21. Now in the facts and circumstances of the case, when finally the Rent Controller came to the conclusion that the petitioner has not tendered or paid rent for the claimed period, the question arises is whether the petitioner is liable to be straight way evicted or whether he is entitled for the second opportunity to tender or pay the rent as per the final adjudication made by the Rent Controller. The Supreme Court in Rakesh Wadhawan's case (supra), after interpreting Section 13(2)(i) of the Act, has come to the conclusion that this provision casts an obligation on the Rent Controller to make an assessment of (i) arrears of rent, (ii) the interest of such arrears, and (iii) the costs 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. If the tenant failed to comply with the aforesaid provisional order, then straight way he is liable to be evicted. But if the tenant complies with the said provisional order CR No.1879 of 2001 (O&M) -4- ******* and disputes the claim made by the landlord, then the proceedings will 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 tenant before the Controller. If finally, the dispute by the Rent Controller is at variance and it is found that he tender made by the tenant is short or deficient, the Controller may pass a conditional order directing the 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.” In my view, the ratio of law laid down by the Apex Court in the case of Rakesh Wadhawan Vs. Jagdamba Industrial Corporation, 2002(1) RCR (Rent) 514 (SC) is fully applicable to the facts and circumstances of the present case because in this case also, the petitioner's stand was that he had already made the payment of arrears of rent and did not tender the same, but ultimately the learned Rent Controller had found that the amount, which is alleged to have been paid was found deficient. Thus, the Rent Controller is required to give reasonable time to the tenant for paying the rent, failing which, he is liable to be evicted. In the present case, no such procedure has been adopted by the Rent Controller, rather it had passed the order of eviction straightway. Thus, the impugned order is patently illegal and the same is hereby set aside. The case is remitted back to the Rent Controller with the direction to pass a conditional order in view of the decision of the Supreme Court in the case of Rakesh Wadhawan (supra). The parties are directed to appear before the learned Rent Controller on 14.02.2011. January 20, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE