CR No.5062 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5062 of 2010 (O&M) Date of decision: 8.9.2011 Sandeep Mehra ......Petitioner(s) Versus Sajesh Kumar Khanna ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Rahul Rampal, Advocate for the petitioner. Mr. Vineet Sharma, Advocate for the respondent. Rakesh Kumar Garg, J.(Oral) This is tenant's revision petition challenging the impugned judgment dated 2.6.2010 of the Appellate Authority whereby while accepting the appeal of the respondent-landlord against the dismissal of ejectment application by the Rent Controller, eviction of the petitioner has been ordered for non-payment of rent as assessed provisionally. Shorn of unnecessary details, it is suffice to say that the respondent-landlord has sought ejectment of the petitioner on the ground of non-payment of rent for the demised premises. The Rent Controller vide order dated 13.10.2008, assessed the arrears of rent along with costs as well as interest totalling to ` 70,455/- and fixed 8.11.2008 for making of tender. On 8.11.2008, the following order was passed: “Present: Sh. R.C. Gupta, Adv. For applicant. Sh. R.K. Mehra, Adv. For respondent. Payment of rent not tender. On request, adjourned to 11.11.2008 for tender the amount of Rs.70,455/-. Sd/- CR No.5062 of 2010 (O&M) 2 R.C. ASR 8.11.2008” It is not in dispute that the petitioner tendered the whole amount of provisional assessed amount on 11.11.2008. The Rent Controller dismissed the ejectment application observing as under: “The petitioner has demanded the arrears of rent w.e.f. 1.7.2006 onwards till date @ Rs.2676.64 per month and w.e.f 1.7.07 @ Rs.2783.70 per month. Respondent while appearing in the court tendered the rent w.e.f. 1.7.2006 to 30.6.2007 @ Rs.2676.34, w.e.f. 1.7.07 to 30.5.2008 @ Rs.2783.70 along with interest Rs.7215/- and Rs.500/- as cost totaling amount of Rs.70455/- vide order dated 11.11.2008 rent was tendered by the respondent as assessed by the court. So far as the question of tendering the rent is legal and valid is concerned, the respondent was ordered to be tendered the rent on 8.11.2008 and the same was tendered on 1.11.2008. So the rent tendered by the respondent is legal and valid. Hence, in view of my above discussion, both these issues are decided against the applicant and in favour of respondent.” Feeling aggrieved from the aforesaid order of the Rent Controller, the respondent-landlord filed an appeal which was accepted by the Appellate Authority observing as under: “Here in this case, the learned Rent Controller after assessing the arrears of rent, interest and cost of Litigation vide order dated 13.10.08, ordered to tender the arrears of rent on 8.11.08, but on 8.11.08, the tenant failed to tender the arrears of rent along with interest and cost assessed by the learned Rent Controller vide order dated 13.10.08, but tendered the same later on which was accepted by the landlord under protest that the tender is illegal. When the tenant failed to tender CR No.5062 of 2010 (O&M) 3 the arrears of rent on the date fixed by the learned Rent Controller, the eviction was to follow, but the learned Rent Controller committed error in adjoining the case and dismissing the application of the landlord for eviction of the tenant on the ground of non payment of arrears of rent. In view of the aforesaid law laid down by the Hon'ble High Court, the tenant was liable to be evicted from the premises in dispute on the ground of non payment of rent, when he failed to tender the arrears of rent on 8.11.2008.” Challenging the aforesaid order, learned counsel for the tenant-petitioner has relied upon the observations of the Hon'ble Supreme Court in Rakesh Wadhawan & Ors. Versus M/s Jagdamba Industrial Corporation & Ors. 2003(2) Civil Court Cases 0361 in para No.29 which read thus: “The result of the discussion may be summarized. Under proviso to Section 13(2)(i), the Controller having discharged his obligation of passing an order under the proviso, either suo moto or on his attention in this regard being invited by either of the parties, it will be for the tenant to pay or tender the amount provisionally assessed by the Controller on the first date of hearing of the application for ejectment. On compliance, the Controller would proceed to adjudicate upon the controversy arising for decision by reference to pleadings of the parties and by holding a summary enquiry for the purpose. Such adjudication shall be provisional and subject to the later final adjudication. The finding that may ultimately be arrived at by the Controller may be one of the following three. The Controller may hold that the quantum of arrears as determined finally is (i) the same as was found to be due and payable under the provisional order, (ii) is less than what was determined by the provisional order, or (iiI) is more than the one what was held to be due and CR No.5062 of 2010 (O&M) 4 payable by the provisional order. In the first case the Rent Controller has simply to pass an order terminating the proceedings. In the second case the Controller may direct the amount deposited in excess by the tenant to be refunded to him. In the third case it would not serve the purpose of the Act if the tenant was held liable to be evicted forthwith as is the view taken by the Punjab High Court in the case of Dial Chand (supra). The Controller directing the eviction of the tenant may pass a conditional order affording the tenant one opportunity of and a reasonable time for depositing the amount of deficit failing which he shall be liable to be evicted. This power in the Rent Controller can be spelled out from the use of the word 'may' in the expression 'The Controller may make an order directing the tenant to put the landlord in possession', as also from the principle of equity and fair play that the tenant having complied with provisional order passed by the Controller should not be made to suffer if the finding arrived at by the Controller at the termination of the proceedings be different from the one recorded in the provisional order. While exercising the discretion to make a conditional order of eviction affording the tenant an opportunity of purging himself of the default the Controller may also take into consideration the conduct of the tenant whether he has even after the passing of the provisional order continued to pay or tender the rent to the landlord during the pendency of the proceedings as a relevant factor governing the exercise of his discretion. Such a course would be beneficial to the landlord too as he would be saved from the trouble of filing a civil suit for recovery of rent which fell due during the pendency of proceedings for eviction before the Controller.” On the basis of the aforesaid observations, learned counsel for the petitioner has argued that once the petitioner had tendered the rent on CR No.5062 of 2010 (O&M) 5 the adjourned date and no objection was raised, his eviction could not have been ordered. However, learned counsel appearing on behalf of the respondent has referred to the observations of a Division Bench of this Court in Rajan alias Raj Kumar versus Rakesh Kumar 2010 (1) RCR Rent 386 wherein the principles of law as laid down in Rakesh Wadhawan's case (supra) have been explained. The aforesaid para reads thus: “This Court is of the view that the ratio of judgment in Rakesh Wadhawan's case (supra) leaves no manner of doubt that the provisional rent and other ancillary charges assessed by the Rent Controller had to be deposited by the tenant on the next date of hearing along with arrears, interest and costs etc., as may be determined by the above said authority. The first date of hearing has also been interpreted to mean, the first date of hearing after determination of provisional rent and other expenses by the Rent Controller. A reading of conclusions drawn in para No.30 of the judgment in Rakesh Wadhawan's case (supra) leaves no doubt that if after determination of the provisional rent, a tenant fails to deposit the same, nothing remains to be done and an order of ejectment of a tenant has to be passed. The language of conclusion No.4 in the said para is very clear and needs no further interpretation. The Court is further of the view that the benefit of conclusions No.5 and 6 would become available to a tenant only on his making a deposit of the provisional rent and other ancillary charges determined by the Rent Controller and not otherwise. It was implicitly made clear that it is the bounden duty of the tenant to deposit the provisional rent determined by the Rent Controller, otherwise it will entail the tenant's ejectment from the premises in dispute. This Court feels that if a tenant is CR No.5062 of 2010 (O&M) 6 dissatisfied with the interim order passed by the Rent Controller, he has an opportunity to challenge the same before the date fixed for payment, in the higher forum.” In view of the law laid down by the Division Bench as aforesaid wherein the judgment of the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra) has been explained, the argument as raised by the learned counsel for the petitioner is not tenable. In view of the aforesaid discussion, this revision petition, which has no merit, is ordered to be dismissed. September 8, 2011 (RAKESH KUMAR GARG) ps JUDGE