Civil Revision No. 2809 of 2010 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2809 of 2010 Date of decision: 11.5.2010 Gopal Maurya ...Petitioner Versus Harbans Kaur ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Ms. Monika Goyal, Advocate for the petitioner S.D.ANAND, J. The respondent-tenant filed an eviction application to obtain the ejectment of the petitioner-tenant from the indicated commercial premises. In that case, provisional assessment of rent came to be made by the learned Rent Controller on 28.11.2007. The matter was adjourned to 17.12.2007 for the tender thereof. The tender was not made and the matter was adjourned to 7.1.2008. On that date, exparte proceedings were ordered against the petitioner- tenant. Thereafter, the petitioner-tenanted filed an application under Order 9 Rule 13read with Section 151 C.P.C. for setting aside of the eviction order dated 7.1.2008. It was averred, in the course of the application, that the petitioner-tenant was actually present in the Court on 7.1.2008, though his presence did not come to be noticed in Civil Revision No. 2809 of 2010 -2- **** the interim order granted by the learned Rent Controller. Application was contested by the respondent-landlord. That plea was negatived by the learned Rent Controller in the facts and circumstances of the case. The Court held that an application under Order 9 Rule 13 C.P.C. was not competent as the petitioner herein had already filed an appeal against the exparte decree. It also noticed that the appeal aforementioned had been dismissed as withdrawn on 18.1.2008 but this fact did not come to be mentioned in the application for setting aside of the exparte decree. Learned counsel, appearing on behalf of the petitioner- tenant, states that the order aforementioned granted by the learned Rent Controller deserves invalidation for the simple reason that learned Rent Controller ought to have afforded further opportunity to the petitioner-tenant to tender the provisional assessed rent. Learned counsel is not unmindful of the law laid down by the Apex court in Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corproation AIR 2002 SC 2004 and a Division Bench judgment dated 7.1.2010 passed in Civil Revision No.3577 of 2006 (Rajan alias Raj Kumar Vs. Rakesh Kumar) but relies upon G.P.Srivatava Vs. R.K.Raizada 2000(1) R.C.R.(Rent) 238 and Prem Lata Vs. Anandi Devi 2002(1) R.C.R.(Rent) 594 to argue that it was reprised of the learned Rent Controller to grant time to enable the petitioner- tenant to make tender. Learned counsel for the petitioner is not on a firmer footing when she so argues. The reasons therefor are as under:- Civil Revision No. 2809 of 2010 -3- **** The law laid down by the Apex Court in Rakesh Wadhawan's case (supra) and this Court in Rajan alias Raj Kumar's case (supra) is to the effect that a tenant has to compulsively pay up provisionally assessed rent in order to avoid imminent eviction. The controversy about rate of rent and allied affairs could be taken care of at the time of ultimately adjudication. The only eventuality in which the assessment may not come about is when there is complete denial of relationship of landlord and tenant. Adverting to the facts of the present case, it is evident that there has been a persistent refrain on the part of the petitioner- tenant in paying up the provisional assessed rent (with interest and costs). Reliance, placed on behalf of the petitioner upon the judgments in G.P.Srivastava and Prem Lata's cases (supra) is misconceived. Those cases did not pertain to the payment or otherwise of provisional assessed rent. Those judicial pronouncements cannot, thus, have any applicability to the facts and circumstances of the present case. In the light of foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed. The learned counsel for the petitioner states that petitioner-tenant has a number of dependents to support and his being on the road without any commercial premises at his disposal would amount to starvation of the family. It is argued that little extra large time may be afforded to the petitioner-tenant to vacate the tenanted premises in view of the fact that the grant thereof would enable the tenant to look for an Civil Revision No. 2809 of 2010 -4- **** appropriate alternate accommodation which would enable him to keep on earning bread and butter for his family. It is ordered, in the circumstances of the case, that the petitioner herein shall have one year time from today to vacate the premises aforementioned. Further, the petitioner-tenant shall keep on paying rent regularly. The petitioner shall file an undertaking to the above effect within fifteen from today before the Registry of this Court. In case of a default, the petitioner-tenant shall be liable to eviction forthwith from the premises aforementioned. Disposed of accordingly. May 11, 2010 (S.D.Anand) Pka Judge