Civil Revision No. 676 of 2009. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 676 of 2009. [O&M] Date of Decision: 17th August, 2009. Shaymal Ghata Petitioner through Mr. Rupesh Kumar, Advocate Versus Dr. Ashwani Kumar Bhayana. Respondent through Mr. G.S.Jaswal, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. This Revision Petition is directed by the tenant, who has been ordered to be evicted by the Rent Controller, Chandigarh vide order dated 3.10.2008 and his appeal against the said order, has also been dismissed by the Appellate Authority, Chandigarh vide judgment dated 16.01.2009. [2]. The respondent – landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [ in short 'the Act'] seeking the petitioner's eviction from the demised premises comprising second floor of SCF No. 20, Sector 23-C, Chandigarh. The respondent – landlord alleged that the premises was rented out to the petitioner @ Rs.3900/- as monthly rent excluding water and electricity charges and that the petitioner was liable to be evicted, inter-alia, on the grounds that [i] he is in arrears Civil Revision No. 676 of 2009. ::-2-:: of rent w.e.f. 1.1.2005; [ii] the premises was taken on rent for residential purposes, whereas the petitioner is running commercial activities of supplying tiffin-services to various persons for which he fries Pakoras, fish and eggs etc., vegetarian and non-vegetarian snacks are prepared in the premises; [iii] the petitioner has caused damage to the entire tenanted premises by misusing the same and has made a sale-counter in the street behind the Shop-cum-Flat for the eatables and snacks etc. prepared in the tenanted premises; [iv] the petitioner allows some of his customers to sit inside the premises for taking liquor etc. and causes nuisance for the building as well as for locality; and [v] the respondent – landlord requires the premises for his personal use and occupation as he is a Doctor by profession and is running his Clinic on the ground floor and some times he is required to have patients under observation for which there is no space available. The landlord also averred that several complaints have been made against the petitioner by his neighbours, against the attitude of the tenant. [3]. Upon notice, the petitioner appeared and filed written statement, inter-alia, taking a preliminary objection against maintainability of the eviction petition as the premises allegedly being used for commercial purposes can not be got vacated for residential purposes and that the landlord has not approached the Court with clean hands. The petitioner also disputed the rate of rent which he claimed to be Rs.1800/- per month only. The grounds of eviction pleaded by the landlord were specifically denied and it was averred that he is not involved in any tiffin business or selling eatable items. Civil Revision No. 676 of 2009. ::-3-:: The food is cooked for the petitioner and his family only. He also disputed the arrears of rent and claimed that the rent up to 30.06.2007 has already been paid. The personal necessity was also disputed as the respondent -landlord does not have any Clinical Lab and that the existing accommodation with him is sufficient. [4]. It is not in dispute that on 12.08.2008 the Rent Controller assessed the provisional rent @ Rs.1800/- per month [as was claimed by the petitioner – tenant] along with costs and interest and adjourned the case to 3.10.2008 for tender of the arrears of rent. The aforesaid order was passed in the presence of the counsel for the petitioner – tenant. [5]. On 3.10.2008 the petitioner – tenant did not turn up, though his counsel remained present. As the provisionally assessed rent and that too at a rate pleaded by the petitioner himself was not tendered, the Rent Controller, following the dictum of the Hon'ble Supreme Court in Rakesh Wadhawan & Ors. V M/s Jagdamba Industrial Corporation & Ors., [2002] 5 SCC, 440, passed the impugned order of eviction giving 45 days' time to the petitioner – tenant to vacate the premises. [6]. The petitioner – tenant went in appeal with a specific plea that his counsel did not inform him the date of hearing, i.e., 3.10.2008 and, therefore, he could not go to the Court and tender the arrears of rent. While attributing motive to his counsel engaged before the Rent Controller, the petitioner alleged that he made an inquiry from the counsel on 15.11.2008 about the next date of hearing and then only he came to know that an eviction order had Civil Revision No. 676 of 2009. ::-4-:: already been passed against him. The Appellate Authority turned down the aforesaid contention after observing that it was the duty of the petitioner – tenant to inquire the status of his case from his counsel and deposit the rent in Court. The appeal has been consequently dismissed vide the impugned judgment dated 16.10.2009 giving rise to this revision petition. [7]. I have heard learned counsel for the parties at some length and perused the impugned orders. [8]. Learned counsel for the petitioner vehemently contended that on account of non-deposit of the arrears of rent, no order of eviction could be passed automatically and at best, the petitioner's defence could be struck off. He argued that the default, if any, committed by the petitioner – tenant is of technical nature which should not cause miscarriage of justice. He urged that the Court has ample powers to condone the delay in tendering the arrears of rent and ought to have adopted a liberal approach in such like matters. He also argued that a party can not be allowed to suffer for any lapse on the part of his counsel. Reliance has been placed on the decisions of the Hon'ble Supreme Court in [i] Shyamcharan Sharma v Dharamdas, 1980[1] RCR, 548; [ii] M/s B.P.Khemka Pvt. Ltd. v Birendra Kumar Bhowmick & Anr. 1987[1] RCR, 256; [iii] Gopal Chandra Ghosh v Smt. Renu Bala Majumdar, 1994[1] RCR, 328 as well as of this Court in [i] Shera v Asha Ram, 1987[1] PLR, 463 and [ii] Paramjit Singh v Faquir Singh, 2000[1] PLR, 375. [9]. After giving my thoughtful consideration to the rival contentions, I do not find any merit in this revision petition. It is not in Civil Revision No. 676 of 2009. ::-5-:: dispute that the petitioner – tenant was aware of the fact that the eviction petition was listed on 12.8.2008. The petitioner as well as his counsel both are residents of Chandigarh and it is against all human probabilities that a litigant would have no anxiety to find out from his counsel as to what happened on 12.08.2008 or what was the next date of hearing. The petitioner's own case is that he contacted his counsel on 15.11.2008 only. The conduct of the petitioner speaks largely that he had no intention or he did not have sufficient funds to tender the arrears of rent on 3.10.2008. The accusation against the counsel for not informing the next date of hearing is totally baseless and appears to be an afterthought. Not only this, the petitioner does not appear to have offered the arrears of rent even before the Appellate Authority [10]. Learned counsel for the petitioner then contended that the petitioner has now deposited the entire arrears of rent in terms of the interim order dated 6.2.2009 passed by this Court, therefore, the very basis of the eviction order has disappeared. [11]. In Rakesh Wadhawan's case [supra], their Lordship's of the Supreme Court held as follows:- “29. 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 Civil Revision No. 676 of 2009. ::-6-:: 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 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 Civil Revision No. 676 of 2009. ::-7-:: 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”. [Emphasis applied]. [12]. The proposition laid down in Paragraph 29, if read together with Paragraph 30[2] and [4] of the report, there remains no ambiguity that once the tenant has failed to tender or offer the arrears of rent as may be assessed by the Rent Controller provisionally, nothing remains to be done by the Rent Controller except to pass an order of eviction. That is what precisely has been done in the instant case. The discretion, if any, left with the Rent Controller is also dependent upon the conduct of the tenant post the provisional assessment. Here is a tenant who not only failed to tender the arrears of rent assessed provisionally, not a single penny towards rent was paid by him till directed by this Court as pre- condition to stay dispossession. [13]. Insofar as the second contention that the petitioner has now tendered the arrears of rent as per the order dated 6.2.2009 is concerned, I am of the considered view that the said arrears have been tendered by the petitioner on account of the conditional stay order granted by this Court. This does not take away the right already accrued in favour of the landlord to seek petitioner's eviction as per the law laid down by the Hon'ble Supreme Court in Rakesh Wadhawan's case [supra]. Civil Revision No. 676 of 2009. ::-8-:: [14]. Consequently, there is no merit in this revision petition and the same is accordingly dismissed, leaving, however, the parties to bear their own costs. August 17, 2009. ( SURYA KANT ) dinesh JUDGE