IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.95 of 1992 Date of decision:28.04.2009 Dhanpat Rai Taneja ...Petitioner versus Jagdish Chand ...Respondent CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.Ashok Sharma,Advocate for Mr. Rajinder Singh Sihota, Senior Advocate for the petitioner. Mr. Adarsh Jain, Advocate for the respondent. ----- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J.(Oral) 1. The tenant who was successful in resisting an action for eviction suffered a reversal of fortune in the Appellate Court when he was directed to be evicted upholding the contention of the landlord that the tenant had not paid rent as agreed between the parties and that he was hence liable to be evicted on the ground of non-payment of rent. Yet another ground of eviction namely the conduct of the respondent that had caused material impairment of the building was later given up at the Appellate Court by the landlord and therefore the revision was admitted only on the consideration of the issue relating to non-payment of rent. Civil Revision No.95 of 1992 - 2 - 2. Admittedly, there was no written document of tenancy between the parties and quantum of rent was a matter for adjudication before the Rent Controller. While the tenant had contended that the rent was received at Rs.180/- per month which included the house tax, the tenant's contention was that he had come by possession of the property undertaking to pay rent at Rs.23/- per month since 1968, but however as per the assessment of the Municipal Committee, he had been tendering the rent at Rs.75/- which according to the tenant was accepted without demur by the landlord. The Rent Controller found, on appreciation of evidence of both the parties, that the rent was only Rs.75/- and not Rs.180/- as contended by the landlord and dismissed the petition for eviction. At the Appellate Court, while setting out the burden of proof correctly on the landlord, the Appellate Authority looked for evidence whether he had established that the rent was only Rs.180/- per month. His line of reasoning was that the copy of the house tax assessment which was marked as P-2, showed that the annual value of set of six shops was Rs.11,220/- and if the annual value was to be divided by six, the annual value of a unit measuring 12' x 8' under the occupation of the tenant i.e. came to Rs.1870/-. Monthly rate of rent in such circumstance was arrived at Rs.155.85 and adding the house tax component also the Appellate Authority found that the amount was only Rs.180/-. Such arithmetic calculation which the Appellate Authority was making was really a case of special pleadings on behalf of the landlord, when such elaborate details had not been set forth even in the petition. Civil Revision No.95 of 1992 - 3 - 3. In a case where there existed a clear dispute on the quantum of rent and there was no document bringing out the admitted rent, the Authority could not have directed eviction, when it found that the rent which the tenant was paying was not really agreed the rent and the rent must have been still higher. If the rent paid by the tenant which was accepted by the landlord was the agreed rent and the Appellate Authority took a different view that it was not Rs.75/- but it was Rs.180/- per month, in my view, the Appellate Authority could not have directed eviction without actually calling upon the tenant to make up the short tender which had occasioned during the pendency of the proceedings and before the institution. 4. The scheme of the Act under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, that allows the landlord to obtain an eviction spells out that a direction for eviction would be issued after giving the tenant a reasonable opportunity to show cause against the application if it was satisfied that the tenant had not paid or tendered rent due from him in respect of the building either within 15 days after the expiry of time fixed in the agreement of tenancy or if the tenant had in spite of the original default paid the rent within a period of 15 days from the first hearing of the application for ejectment after due service along with interest and cost, the tenant would be deemed to have paid the rent within time as aforesaid. The Act itself provides that a landlord would not be entitled to claim arrears of rent for a term exceeding three years immediately preceding the date of the application under the provisions of the Act. The Act that condones the Civil Revision No.95 of 1992 - 4 - delay of a tenant in not paying the rent within time specified in the agreement but who makes up for the default by making the payment within 15 days of the first hearing of the application contains an inbuilt mechanism that a tenant is not visited with an order of eviction, unless there had been a case of defiance on his part. 5. In a case coming under the East Punjab Urban Rent Restriction Act that contains, though not similar provisions with reference to a ground of eviction for non-payment. Hon'ble the Supreme Court held out in Rakesh Wadhawan and others Versus Jagdamba Industrial Corporation and others -131(2002-2) PLR 370, a procedure that the Rent Controller shall determine the rent provisionally and give an opportunity to the tenant to make the payment so determined which would arise after the determination. Hon'ble the Supreme Court termed the date that falls subsequent to the date on such determination to be the first hearing. Under the Haryana Act, the period which the law spells out is a period of 15 days after due service as the first hearing of the application for ejectment. It still states that it shall be an arrears of rent and interest as calculated by the Controller to be payable by the tenant. This expression casts a duty on the Rent Controller to stipulate a particular sum as payable by the tenant and if a default still arises, that would be a ground for eviction. In this case, no such determination was made during the pendency of the proceedings. On the other hand, the Rent Controller accepted the contention of the tenant and found that there had been no default. The Appellate Authority did not itself have any evidence other than the municipal assessment register to hold what Civil Revision No.95 of 1992 - 5 - the rent could have been. It is clearly a case of estimation of what the rent could have been and not a definite finding rendered on what the landlord stated the rent was. In a situation like this, if there had been a default by the tenant, it could not have been taken to be actionable without affording an opportunity to the tenant to pay such an amount. The Act itself sets out certain other limitations for a landlord to claim against the tenant in that it states, unlike other rent legislation across the other States, the landlord cannot claim also for more than three years prior to the filing of the petition. The petition which is intended to grant a right to a landlord to obtain eviction must be considered strictly and the eviction order made by the Appellate Authority in reversal of the judgment of the Rent Controller without affording any further opportunity to pay the amount which it determined as payable, in my view, is against the grain of the legislative intendment that could be seen through the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 . 6. Under the circumstances, I set aside the order of the Appellate Authority and restore the order of dismissal of the petition as made by the Rent Controller. However, having regard to the factual consideration that the rent was Rs.180/-, I do not propose to reverse such a finding. Learned counsel appearing for the revision-petitioner is not in a position to inform whether the tenant was paying Rs.180/- per month as the Appellate Court found or whether he was paying only at the rate of Rs.75/-. As a matter of fact, by reference to a docket order passed by this Court on 29.05.1992, it appears that the rent was directed to be paid only Civil Revision No.95 of 1992 - 6 - at the rate of Rs.75/- per month. The tenant shall have an opportunity to pay the entire amount of rent w.e.f. 01.07.1983 till date at the rate of Rs.180/- per month and any amount that he may have paid during the pendency of the rent petition before the Rent Controller and the Appellate Authority as well as before this Court, shall be given due credit and the balance shall be payable within 15 days from the date of receipt of the copy of this order. If he fails to pay the amount for any reason, the order of ejectment that is passed by the Appellate Authority shall be sustained. If however the amount is paid, the order of eviction shall not operate. 7. The Civil Revision is disposed of in the above terms. No costs. (K.KANNAN) JUDGE 28.04.2009 sanjeev