CR No.177 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.177 of 2010 (O&M) Date of Decision:04.03.2011 Smt. Sharda Sharma . . .Petitioner Versus Sohan Lal . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.D.P. Gupta, Advocate, for the petitioner. Mr.G.S. Bal, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The landlady has challenged order dated 28.11.2009 passed by the Rent Controller, Mohali by which her application for seeking eviction of the tenant on the ground of short tender of provisional rent on the next date of hearing has been dismissed. In brief, the case set up by the landlady is that the tenant was inducted in half portion/left portion comprising two rooms of Kothi No.10, Phase-I, SAS Nagar, Mohali at a monthly rent of `3,500/- per month excluding electricity and water charges. She filed petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) against the tenant on the ground of non- payment of rent w.e.f. 1.10.2005 to 31.3.2008 at the aforesaid rate. In the written statement, the tenant alleged the rate of rent to be `1,600/- per month excluding electricity and water charges, which was claimed to have been paid upto January 2008. Thus, there was a dispute with regard to rate of rent and period. The landlady then filed an application before the Rent Controller, Mohali for the CR No.177 of 2010 (O&M) - 2 - assessment of provisional rent. The said application was disposed of on 17.1.2009 with the following order: - “Heard on the question of determination of provisional rent. Petitioner has claimed rent at the rate of `3500/- per month w.e.f. 1.10.2005. On the contrary, respondent has alleged the rate of rent to be `1600/- w.e.f. February 2008. No rent agreement or any other document has been placed on record to deduce the rate of rent. Ld. counsel for the respondent has submitted that he has already deposited rent upto January, 2008 and dispute arose only in February, 2008 when respondent filed a civil suit for permanent injunction against petitioner qua dispossession of respondent. On the contrary ld. Counsel for the petitioner has vehemently contended that the rent is due from 1.10.2005. After hearing the rival contentions of the parties and after giving considerable thought to the same I have found there is no rent receipt on record and I am of the considered opinion that since there is no document on record to determine the actual rate of rent and actual period qua which the rent is due, so I assess rent provisionally at the rate of `2400/- per month due w.e.f. January 2007. So respondent is directed to make the payment of rent provisionally at the rate of `2400/- per month w.e.f. January 2007 till date along with costs which is assessed as `300/- along with interest at the rate of 6% per annum. To come up for tender of rent for 25.2.2009.” CR No.177 of 2010 (O&M) - 3 - It is apparent from the above order that neither the Rent Controller assessed the interest except for mentioning the rate nor pronounced the exact amount, which was to be paid by the tenant on the date of tender. On 25.2.2009, following proceedings were recorded: “I am depositing `61,500/- as per order dated 17.1.2009 under protest being excess rate of rent and time period. Rent is from Jan. 2007 till Feb. 2009 at the rate of `2400/- per month and with interest at the rate of 6% per annum and cost `300/-. I have received under protest the tender `61,500/- being short invalid and insufficient.” According to the landlord, the total amount of rent, which was required to be tendered as per her calculation was `66,444/- and since the tenant had tendered `61,500/-, the rent was found to be short and as such she filed an application on 20.3.2009 seeking eviction on this ground alone. The application was replied by the tenant in which he alleged that the amount of `61,500/- was tendered on the date fixed and if it is found short, he is ready to pay the same with immediate effect. He also offered a sum of `10,000/- in terms of the order dated 17.1.2009, which was declined by the landlady. The said proceedings are reproduced as under: “I offer to tender `10,000/- as rent as per order dated 17.1.2009 under protest being excess amount. Earlier I had deposited `6,1500/- in compliance to order dated 17.1.2009 I refused to accept the said tender being late and invalid, since the respondent has made a default in making the tender at the first date of hearing i.e. 25.2.2009.” The tenant further offered `20,000/- in terms of order dated 17.1.2009 but it was not accepted by the landlady. The said proceedings are reproduced as under: CR No.177 of 2010 (O&M) - 4 - “I offer to tender `20,000/- as rent till the period of August, 2009 as per order dated 17.1.2009 under protest being excess amount. Earlier I had deposited `61,500/- in compliance to order dated 17.1.2009 I refuse to accept the above mentioned rent offered as the petitioner’s application for eviction of the respondent due to earlier short tender of rent is pending in this Hon’ble Court and is yet to be decided.” The application filed by the landlady for eviction was ultimately dismissed by the learned Rent Controller by the impugned order relying upon the decision of this Court in the case of “Rajinder Kumar Vs. Bachan Singh” 2008 (2) RCR (Civil) 171 holding that the tenant is required to be offered another opportunity to pay the arrears of rent at the final stage of eviction and on his failure to do so, he would be held liable to ejectment. Aggrieved against the said impugned order, the present revision petition is filed by the landlady in which notice of motion was issued on 13.1.2010 and in the meantime, further proceedings in the mater were ordered to be stayed. Opening his submissions, learned counsel for the petitioner has argued that in view of a decision of 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, a Division Bench judgment of this Court in the case of “Rajan alias Raj Kumar Vs. Rakesh Kumar” 2010 (2) PLR 201 and also a Single Bench judgment of this Court in the case of “Sudhir Kumar Vs. Kuldip Singh Malhotra” 2010(2) RLR 381, tenant is liable to be evicted if he does not tender the provisional rent assessed by the Rent Controller on the date fixed and the Rent Controller has no jurisdiction to extend the time for depositing the same. It is also submitted by the learned counsel for the petitioner that there is a grave error in the exercise of jurisdiction by the Rent Controller in not passing the order of eviction in the event of short tender of provisional rent on the first date of hearing. CR No.177 of 2010 (O&M) - 5 - In reply, learned counsel for the respondent has submitted that it is not a case where no provisional rent has been tendered by the tenant on the date fixed by the Rent Controller rather it is a case where except for a meager amount, substantial amount was tendered by the tenant on the date fixed by the Rent Controller and the short tender was result of the miscalculation. He also submits that it is the obligation on the part of Rent Controller to assess the accurate amount of provisional rent, which is the liability of the tenant to tender on the date fixed by the Rent Controller and if accurate amount is not assessed leading short tender due to miscalculation, it is the fault of the Rent Controller for which the tenant should not be made liable to suffer. In support of his submissions, he has relied upon a decision of the Supreme Court in the case of “Jang Singh Vs. Brij Lal and others” AIR 1966 Supreme Court 1631, “Umesh Chand Gandhi Vs. Ist Addl. Distt. & Sessions Judge” 1994(1) RCR (Rent) 137, “Vinod Kumar Vs. Prem Lata” 2003(2) RCR (Rent) 329 and CR No.7374 of 2010 titled as “Lambher Singh and another Vs. Saurav Thakur and another” and decision of this Court in the case of CR No.8076 of 2010 titled as “Gurpreet Singh and another Vs. Brijinder Bhardwaj and another” decided on 4.3.2011 I have heard both the learned counsel for the parties and perused the record. Undisputedly, the tenant is liable to pay the entire amount of provisional rent on the date fixed by the Rent Controller and on his failure to do so he is liable to be evicted in terms of the decision of the Supreme Court in the case of Rakesh Wadhawan and others (Supra), which has been clarified by this Court in the case of Rajan alias Raj Kumar (Supra). It is also equally true that the Rent Controller has no jurisdiction to extend the time for depositing the provisional assessed amount of rent, if nothing is deposited by the tenant on the date so fixed by the Rent Controller as held by this Court in the case of Sudhir Kumar (Supra). But the question before this Court is as to whether the tenant is liable for ejectment in case he has deposited substantial amount of rent on the first date of hearing as assessed by the Rent Controller, which was ultimately found to be short due to his miscalculation and in that circumstance whether tenant is entitled for depositing the same on the date to be fixed by the Rent Controller or is liable for eviction. CR No.177 of 2010 (O&M) - 6 - I have already held in the case of Gurpreet Singh and another (Supra) that in such circumstance, the tenant is not liable to be evicted because it is the duty of the Rent Controller to assess accurate amount of provisional rent to be tendered by the tenant. The Rent Controller cannot simply say that the tenant is liable to pay 6% interest, which is otherwise provided under the Statute rather he is required to assess the exact amount of interest himself and thereafter give an accurate amount to the tenant by multiplying the period into the exact amount of the rent. Unless this procedure is followed and the tenant fails to pay the exact amount then the matter is altogether different and he is entitled to an opportunity from the Court on the principal of actus curiae neminem gravabit i.e. no one should be harmed because of the fault of the Court. Sensing this problem, I have already issued a direction to all the Rent Controllers in the State of Punjab, Haryana and Chandigarh to assess accurate provisional rent by first multiplying the rate of rent with the period for which it is due, by assessing the exact amount of interest besides the cost imposed and then give an accurate amount to the tenant for the purpose of tendering the rent on the date fixed by the Rent Controller so that the tenant may not have to face any hardship in case of any miscalculation leading to short tender. All the judgments relied upon by the learned Court for the respondent have already been considered by me in the case of Gurpreet Singh and another (Supra) on the basis of which it has been held that there was no fault of the tenant for which he can be made liable to vacate the demised premises on the ground of short tender. In view thereof, I do not find any merit in the present revision petition and the same is hereby dismissed. No costs. (RAKESH KUMAR JAIN) MARCH 04, 2011 JUDGE Vivek