CR No.1687 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1687 of 2011 (O&M) Date of Decision: 16.03.2011 Gurvinder Singh . . .Petitioner Versus Vinayak Bahl . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.O.P. Goyal, Sr. Advocate, with Ms.Savita Tanwar, Advocate, for the petitioner. ***** RAKESH KUMAR JAIN, J (ORAL) CM No.6757-CII-2011 By this application the petitioner is seeking exemption from filing certified copies of Annexures P-1 to P-16 and also seeking permission to place them on record. Learned counsel for the applicant/petitioner has very fairly stated that except for Annexures P-1 to P3 other documents are part of the record. Hence, application is allowed. . CR No.1687 of 2011 (O&M) This revision petition is directed against order dated 14.12.2010 passed by the learned Rent Controller by which petitioner has been ordered to vacate the demised premises within a period of two months from the date of order. In brief, the petitioner occupied Flat No.597, Ist Floor, Punjab, Haryana IAS, Punjab IPS and Swati Cooperative House Building Society Complex, Sector 49-A, Chandigarh as tenant for three years in terms of lease deed initially executed on 27.5.2002 @ of rent of `7100/- per month which was further extended for another three years on 10.8.2005 and then on 28.8.2008. The landlord filed petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) seeking eviction of the petitioner/tenant on the grounds of arrears of rent, subletting, change of user and personal necessity. CR No.1687 of 2011 (O&M) - 2 - On account of arrears of rent an order fixing provisional rent was passed by the learned Rent Controller on 8.10.2010 which reads as under: “Heard on the point of provisional assessment of rent to be tendered by the respondent. The respondent has admitted the rate of rent to be `7100/- per month. At this stage only a prima facie case is to be seen for the purpose of provisional assessment of rent. In the given circumstances the provisional rate of rent is assessed at the admitted rate of `7100/- per month, for the period with effect from 1.8.2008 onwards with interest @ 6% per annum and cost `500/-. Now to come up on 2.12.2010 for tendering rent by the respondent.” On 2.12.2010, the petitioner/tenant after calculating the rent due in terms of order dated 8.10.2010 i.e. `1,98,800/- as rent w.e.f. 1.8.2008 to 30.11.2010 @ `7100/- per month, `14,500/- as interest and `500/- as cost, total amounting to `2,13,800/- tendered it by cheque drawn on HDFC Bank Ltd. Sector 46, Chandigarh. According to the learned counsel for the petitioner, cheque was presented by the landlord on 3.12.2010, which was dishonored by the Bank on 4.12.2010. Thereafter on 7.12.2010, the landlord filed an application to the Rent Controller for passing an order of eviction on the ground that order dated 8.10.2010 has not been complied with in its letter and spirit in terms of order passed by the Supreme Court in the case of “Rakesh Wadhawan and others Vs. M/s Jagdamba Industrial Corporation and others” JT 2002 (Suppl.I) SC 11. While that application was pending another application was filed by the tenant in order to tender the rent and suffered a statement on 13.12.2010 (Annexure P-11) where he offered to make the payment of rent in cash provided the time is extended. The matter ultimately was taken up by the Rent Controller on 14.12.2010 along with the application of the landlord dated 7.12.2010 which was filed for the purpose of passing order of eviction for non-compliance of the order dated 8.10.2010. The learned Rent Controller while passing the impugned order had taken into account the fact that Cheque Ex.P-1 was presented, which was CR No.1687 of 2011 (O&M) - 3 - dishonored by the Bank vide memo Ex.P-2. Meaning thereby, order of payment of provisional rent was not complied with and as such it was in violation of the order of the Supreme Court in the case of Rakesh Wadhawan and others (Supra). The prayer of the petitioner/tenant for extension of time was also declined. Aggrieved against the said order, the petitioner had filed statutory appeal under Section 15(1) of the Act which too met with the same fate vide order dated 17.2.2011 although it is alleged that the draft amounting to `2,30,100/- was attached but still he could not persuade the Appellate Authority to save his tenancy. Aggrieved against the order of the Courts below, present revision petition has been filed in which the primary argument raised by learned counsel for the petitioner is that the learned Rent Controller has failed in his duty in not assessing the provisional rent in terms of the proviso to Section 13(2)(i) of the Act. He submits that even according to the Rakesh Wadhawan and others (Supra), the Rent Controller is obliged to quantify the provisional rent, which is to be tendered by the tenant on the first date of hearing along with exact amount of interest. He submits that since order dated 8.10.2010 is silent in this regard, therefore, eviction order passed by the Rent Controller on 14.12.2010 cannot be allowed to sustain. He also submits that the learned Rent Controller has further committed an error in not granting extension of time despite the fact that the petitioner was ready and willing to make the payment of rent due as per the statement made on 13.12.2010. In this regard, he has relied upon decision of this Court in the case of “Vijay Kumar Vs. Anand Parkash Goel and another” 2007 (1) RCR 242, “Roshan Lal Vs. Ashok Kumar” 2005(2) RLR 47, judgment of the Jammu and Kashmir High Court in the case of “Ali Mohd. Wani Vs. Qazi Abdul Rashid” 2005(1) RCR 474 and judgment of the Supreme Court in the case of “Sayeda Akhtar Vs. Abdul Ahad” 2003(2) RCR 213. Besides the above issues, he has also urged that the assessment of the provisional rent has to be made not from the date of application but from the date of non-payment till the date the rent has become due. I have heard learned counsel for the petitioner and perused the record with his able assistance. In this case, admittedly, petitioner/tenant was in arrears of the rent and the provisional rent was assessed on 8.10.2010 in which rate of rent, period of rent, rate of interest and cost was specifically mentioned by the Rent Controller CR No.1687 of 2011 (O&M) - 4 - and the date on which rent was to be tendered was also conveyed. Thus it is not a case where the tenant was mislead because of the non-calculation of the exact amount which he was liable to pay because the tenant himself had calculated the amount of arrears of rent, amount of interest payable and the cost and calculating all the three components of payment due, he had prepared a cheque of a sum of `2,13,800/-, which was tendered at the time and date fixed by the Court and when it was presented by the landlord for the purpose of realization, it was dishonored by the Bank as per Bank memo Ex.P-2. The question is thus, whether the plea that there is an error on the part of Rent Controller in not assessing the exact amount, which is to be paid on the first date of hearing, can be raised in this case? Answer is empathetically ‘No’ because this is not a case where due to non-quantifying of the exact amount, which was to be paid by the tenant/petitioner, he was misled and deposited lesser amount rather it is a case where a deliberate attempt was made by the tenant tendering the rent by a cheque which was not honored by the Bank on the next date when it was presented for realization. Whether law should protect such a tenant? In my opinion such type of a tenant should not be shown any leniency or given extension of time rather such type of cases should be dealt with firmly. Now dealing with the judgments relied upon by the learned counsel for the petitioner, in the first judgment i.e. in the case of Vijay Kumar (Supra), it was held that tenant directed to pay arrears and date for payment also fixed, tenant failed to pay full amount of arrears, Court has jurisdiction to enlarge such period under Section 148 of C.P.C. as it has been provided that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed, the Court may in its discretion, from time to time, enlarge such period. In the case of Roshan Lal (Supra), again this Court had taken help of Section 148 of CPC for the purpose of enlargement of payment. Similar is the position in the case of Ali Mohd. Wani (Supra), where non-deposit of rent within stipulated period causes striking off defence, the Court has power to extend the time if sufficient cause is shown. In the case of Sayeda Akhtar (Supra), the Court has observed that in case arrears of rent not deposited within time granted by Court, the Court can extend time but it is necessary to make an application to Court showing sufficient cause as to why such deposit could not be made within the time granted by the Court because the Court does not extend time or condone the delay on mere sympathy. CR No.1687 of 2011 (O&M) - 5 - All these judgments are not applicable to the facts of this case in view of the fact that judgment in the case of Rakesh Wadhawan and others (Supra) has been further clarified by the Division Bench of this Court in the case of “Rajan alias Raj Kumar Vs. Rakesh Kumar” 2010(2) PLR 201 which has been further relied upon by Single Bench of this Court wherein it has been held that once there is a default on the part of the tenant of not depositing the provisional rent on due date as determined by the Rent Controller then the tenant is liable to vacate the demised premises and time cannot be extended in any case. In view thereof, I do not find any merit in the first contention raised by learned counsel for the petitioner especially when this Court is of the view that the petitioner was not honest. In view thereof, present petition is dismissed with cost of `25,000/-. (RAKESH KUMAR JAIN) MARCH 16, 2011 JUDGE Vivek