CR No.6750 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6750 of 2009 (O&M) Date of Decision: 03.05.2011 Ashwani Kumar . . .Petitioner Versus Sudarshan Gupta . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Anil Chawla, Advocate, for the petitioner. Mr.Sunil Chadha, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J (ORAL) This revision petition is filed by the tenant against the orders passed by the Courts below by which eviction petition filed by the landlord has been allowed. In brief, the landlord filed eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) on 11.2.2006 seeking ejectment of his tenant on the ground of arrears of rent w.e.f. 13.8.2004 @ `400/- per month till the filing of the petition. The case set up by the landlord is that the tenant was in possession of the demised premises @ `400/- per month whereas tenant had alleged that rate of rent was `300/- per month. The learned Rent Controller vide its order dated 10.4.2007 assessed the provisional rent by passing the following order: “Present: Counsel for the parties. Arguments on the provisional assessment of rent heard. From the pleadings of the file from documents of this Court to originally assessed rent as `300/- payable by the respondent to the applicant with effect from 13.8.2004 to the date of the filing of the petition. Applicant is also CR No.6750 of 2009 (O&M) - 2 - entitle to the statutory rate of interest and the costs are assessed at `400/- on request, case is now adjourned to 20.4.2007 for payment.” On 20.4.2007, the tenant tendered the rent and recorded his statement which reads as under: “As per the order of the Court, I am tendering the rent with effect from 13.8.2004 to 14.2.2006 at the rate of `300/- per month. I am also tendering `400/- by way of cost and `270/- by way of interest at the rate of 6 per cent. The total sum of `6070/- which includes `5400/- towards the arrears of rent.” On the same day, learned counsel for the respondent also recorded his statement which reads as under: “Smt. Sudharshan Gupta substituted in place of Mohan Lal Gupta now deceased. I accept the tender under protest as the tender is short and invalid. The rate of rent is `400/- per month but however, even the tender is short even in view of provisional rent assessed by the Hon’ble Court.” Thereafter, the tenant moved an application on 26.4.2007 for making supplementary tender of rent which was allowed on 30.10.2007 by the Rent Controller, who had found that the earlier tender was short because of the fault of the Court as exact amount of rent to be tendered was not quantified. Hence, the tenant was allowed to tender rent of `372.50 paisa on 22.11.2007. Besides that it was ordered that rejoinder, if any, be also filed on the date fixed and the case would be considered for framing of the issues as well. Order dated 30.10.2007, however, was not challenged by the tenant as he was satisfied with the quantum of supplementary rent assessed by the Rent Controller. When the case was listed on 22.11.2007, the following order was passed: “Present: Counsel for the parties. CR No.6750 of 2009 (O&M) - 3 - Pleadings are complete. From the pleadings of the parties, following issues arises and are framed as under: 1) Whether the petitioner is entitled to get the respondent evicted from the demised premises on the ground of non-payment of rent? OPA 2) Relief. No other issue arises or pressed for. Case is adjourned to 28.1.08 for evidence of applicant. AWs be summoned on filing of PE/DM/List of witnesses within seven days.” Though the case was adjourned for 28.1.2008 but it was taken up on 25.1.2008 as the Court was going on leave. Hence, it was adjourned to 11.3.2008. On 11.3.2008, the landlord filed an application for passing order of ejectment. Copy of the application was supplied to the tenant and it was adjourned to 16.1.2008 for reply. In the meantime, tenant had filed an application for making supplementary tender by way of money order as it was alleged that the supplementary tender was sent by money order but it was returned by the landlord. On 16.1.2008, reply was filed by the landlord to the application filed by the tenant with regard to tender of rent by money order and reply by the tenant on the application filed by landlord where he had prayed for ejectment for non-tendering the rent. Thereafter, the case was adjourned for a few days but ultimately the impugned order was passed by the Rent Controller on 2.2.2009 in which he had observed that as the tenant had failed to tender the rent in time which cannot be further extended. Insofar as the tender by money order is concerned, that was not accepted. Aggrieved against the order dated 2.2.2009, tenant filed the statutory appeal which was dismissed by the Appellate Authority with the similar observations, vide its order dated 14.10.2009. Still aggrieved, the tenant came in revision before this Court and at the time when revision petition was admitted, following order was passed: CR No.6750 of 2009 (O&M) - 4 - “Admit. To be heard with Civil Revision No.3577 of 2006. Meanwhile, petitioner’s dispossession shall remain stayed subject to the condition that he deposits the entire arrears of rent and shall keep on paying the future rent by 10th day of every calendar month.” During the pendency of the revision petition, the landlord had filed a CM No.10221-CII-2011 for fixing actual date of hearing of the aforesaid revision petition on the ground that since the present revision petition was ordered to be heard with Civil Revision No.3577 of 2006, which has already been dismissed by this Court, therefore, no cause is left out for the tenant to pursue in the present revision petition. In this application, notice was issued and counsel for the non- applicant/tenant had appeared. While hearing this application, learned counsel for the tenant has argued the main case de hors the fact that the revision petition was not ordered by this Court to be heard for an actual date. However, with the consent of both the learned counsel for the parties and keeping in view the fact that CR No.3577 of 2006 with which present revision petition was ordered to be heard was already dismissed, arguments of both the learned counsel for the parties have been heard. So far as CR No.3577 of 2006 is concerned, the issue involved in that case was as to whether in case of non-tendering of rent on the stipulated date, the tenant could be given an opportunity of regular trial or eviction would automatically follow. Since, there were conflicting views in the Case of “Rajinder Lal Vs. Gopal Krishan” 2006(2) PLR 124 and “Madan Lal and another Vs. Baldev Raj” 2004(2) PLR 834, therefore, the matter was listed before the Division Bench of this Court where the view taken in the case of Madan Lal and another (Supra) was approved and it was held that the moment tenant fails to tender the provisionally assessed rent, eviction order would follow. In the present case, the tenant was given opportunity by the learned Rent Controller vide its order dated 30.10.2007 when it had found that there was a mistake on its part in not quantifying the rent to be paid. Hence, the case was adjourned for 22.11.2007 and 22 days time was given to tender `372.50 paisa in the Court, however, on the said date, as per order dated 22.11.2007, neither the CR No.6750 of 2009 (O&M) - 5 - tenant appeared, as the Court had recorded the presence of the counsel for the parties only nor counsel for the tenant offered the amount of `372.50 paisa for the purpose of its tender. Learned counsel for the petitioner has argued that tenant was present but his statement was not recorded. I am not ready to accept this contention of the learned counsel for the tenant because had the tenant been present in Court on 22.11.2007, he would have definitely recorded his statement in the Court that he is ready and willing to tender the rent which would have been accepted by the landlord or his counsel, who was present in Court. It is now well settled that the record of the Court cannot be held to be wrong on the ipse dixit of the parties as it has been held by the Supreme Court in the case “State of Maharashtra Vs. Ramdas Shrinivas Nayak” AIR 1982 Supreme Court 1249 that if a party has any grievance about the wrong recording of the zimini orders, he should immediately file application along with affidavit for its correction and since the said correction was not sought, therefore, it can be very well assumed that the tenant was not present at the time when tender of rent was to be made. Now the question arises whether time can be extended even if amount is very small. In my view, time could be extended by the Court only in case where Court is at fault but not the tenant. The tenant should have made efforts even by depositing the amount of rent with his counsel if he was not interested to appear on 22.11.2007 but since he did not tender the rent, the time can not be extended. In view of the above discussion, there is no error in the order of the Courts below by which the tenant has been ordered to be evicted for non-tendering of rent on the stipulated date especially in view of the decision of the Division Bench of this Court in the case of “Rajan alias Raj Kumar Vs. Rakesh Kumar” 2010 (1) HLR 264. Hence, present revision petition is found to be devoid of any merit and as such the same is hereby dismissed. No cost. (RAKESH KUMAR JAIN) MAY 03, 2011 JUDGE Vivek