Civil Revision No. 6169 of 2007 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6169 of 2007 Date of decision: 6.5.2010 Vikas alias Raju and another ...Petitioner Versus Harkesh Kumar ..Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Ms. Divya Sharma, Advocate for the petitioner. Mr. S.K.Sandhir, Advocate for the respondent. S.D.ANAND, J. Facts beyond the pale of controversy are as under:- The provisional assessment of rent came to be made on 9.5.2006 and the matter was adjourned to 5.6.2006 for tender of rent. No tender came to be made on that date and the matter was adjourned to 18.7.2006. On that date as well, the tender was not made. Ultimately, the ejectment order (on account of non making of tender of rent) came to be granted on 29.7.2006. The order came to be affirmed by the learned Appellate Authority. Ms. Divya Sharma, learned counsel appearing on behalf of the petitioner, argues that the tender could not made on the first date of hearing and on the adjourned date thereafter because the petitioner-tenant was not possessed of funds adequate enough to Civil Revision No. 6169 of 2007 -2- **** enable him to pay up. On the particular date fixed thereafter, it is argued, the tender could not be made as the Presiding Officer did not hold the Court, being busy in conducting an auction proceeding. (This averment is a reiteration of the presentation made at the time of motion hearing.). Learned counsel for the petitioner argues that the ratio of law in Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corproation AIR 2002 SC 2004 and a Division Bench Judgment dated 7.1.2010 in Civil Revision No.3577 of 2006 (Rajan alias Raj Kumar Vs. Rakesh Kumar) cannot be applied mechanically and this Court ought to take notice of the circumstances under which the tender could not be made. The plea is resisted by the learned counsel for the respondent who argues that the law laid down in Rakesh Wadhawan's case (supra) and Rajan alias Raj Kumar's case (supra) does not indicate any support to the plea raised. Insofar as the Division Bench judgment in Rajan alias Raj Kumar's case (supra) rendered by this Court is concerned, the judgment rendered by the Apex Court in Rakesh Wadhawan's case was interpreted and it was held on the basis thereof that “if a tenant does not comply with the order on the first date of hearing after determination of the provisional rent and other ancillary expenses by the Court, then eviction has to follow”. In the course of that very judgment, the Bench extracted the following observations made by the Apex Court in para 30 of the Civil Revision No. 6169 of 2007 -3- **** judgment in Rakesh Wadhawan's case:- “1. In Section 13(2)(i) proviso, the words `assessed by the Controller' qualify not merely the words “the cost of application” but the entire preceding part of the sentence i.e. `the arrears of rent and interest at six per cent per annum on such arrears together with the costs of application'. 2. The proviso to Section 13(2)(i) of East Punjab Restriction Act, 1949 casts an obligation on the Controller to make an assessment of (i) arrears of rent, (ii) the interest on 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. 3. Of necessity, `the date of first hearing of the application' would mean the date falling after the date of such order by Controller. 4. On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall 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 the tenant before the Controller.” (emphasis Civil Revision No. 6169 of 2007 -4- **** supplied). 5. If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct a refund. If on the other hand, the amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order directing 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. Compliance shall save him for eviction. 6. While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularly the rent falling due month by month during the pendency of the proceedings.” It would be apparent from a conjunctive perusal of the law laid down by the Apex Court in Rakesh Wadhawan's case (supra) and Division Bench of this Court in Rajan alias Raj Kumar's case (supra), that eviction order must follow on non making of tender on the first date of hearing after the provisional assessment of Civil Revision No. 6169 of 2007 -5- **** rent is made by the learned Rent Controller. Hypothetically speaking, there could be an eventuality where a tenant is involved in a mishap on way to the Court on the date the tender is to be made. There could well be an eventuality where a tenant has to be hospitalised on account of health condition which occurs when he is on way to the Court to make the tender. These hypothesised eventualities could be multiplied by any number of similar circumstances which must, however, be of the type that it can be held as a fact that tenant was throughout inclined to make the tender and was also possessed of funds adequate enough for the purpose aforementioned but he was disabled in the relevant behalf by facts beyond his control. However, hypothesised eventualities cannot be extended to the present case in view of the fact that it is the own plea on behalf of the petitioner that tender could not be made on the first two dates of hearing on account of non availability of funds with the petitioner-tenant. Any extension of the hypothesised eventualities to the case of this category would be a travesty of law. Insofar as the projected inability on the last date of hearing is concerned, that too does not deserve acceptance. In the grounds of revision, there is an averment that when the petitioner-tenant went to the Rent Controller on the date fixed, he was told that tender could not be made as the Presiding Officer was leaving to conduct certain auction proceedings and that he would be holding the Court after lunch. The averment proceeds to indicate that when the tenant went over to the Court at about 2.00 P.M. he was informed by the Reader Civil Revision No. 6169 of 2007 -6- **** to the Court that eviction order had already been granted. The Reader further told the petitioner-tenant that the learned Presiding Officer was not available as he had gone to attend some urgent meeting. It requires pertinent notice that these averments surfaced for the first time in the grounds of revision filed before this Court. This could be taken up for consideration (with whatever effect) only when these have been proved as a fact which the petitioner-tenant did not do in this case. There is not even an averment that the petitioner-tenant made a grievance of his being 'wronged' in the projected manner before any higher Administrative Authorities. The relevant matter was pending at Ludhiana which is the headquarters of a Sessions Division and there are about two dozens judicial Courts functioning over there. A person circumstanced like the petitioner would be expected to have given vent to his grievance before the learned District Judge who could be represented to assign the case to another Court to facilitate the making of tender. Nothing of this type is, however, averred to have been done by the petitioner- tenant in this case. In the light of foregoing discussion, it is apparent that there is no force in the petition which shall stand dismissed accordingly. Learned counsel, appearing on behalf of the petitioner- tenant, requests that a little extra large time may be afforded to the petitioner-tenant to vacate the tenanted premises so that the petitioner may be able to arrange alternative accommodation. It is Civil Revision No. 6169 of 2007 -7- **** ordered, in the circumstances of the case, that the petitioner herein shall have six months 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 06, 2010 (S.D.Anand) Pka Judge