C.R.No.6607 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R.No.6607 of 2011(O&M) Date of Decision: December 12, 2011 Sat Paul Jindal .....Petitioner v. Smt.Sushma .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.H.R.Nohria, Advocate for the appellant. Mr.Amarjit Markan, Advocate for the respondent. ...... Ram Chand Gupta, J.(Oral) C.M.Nos.27685-86-CII of 2011 Learned counsel for the respondent requests for placing on record Annexures R1 to R3. The same are taken on record subject to all just exceptions. Both the applications stand disposed of accordingly. C.R.No.6607 of 2011 The present revision petition filed under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short `the Act') against order dated 28.7.2011 passed by learned Rent Controller, Panchkula, accepting the petition of respondent-landlady for ejectment of present petitioner from the premises in dispute on the ground of non- payment of rent as well as against order dated 18.10.2011 passed by learned appellate authority, Panchkula, dismissing the appeal filed by present petitioner against the said order. C.R.No.6607 of 2011(O&M) -2- I have heard learned counsel for the appellant and have gone through the whole record carefully including the orders passed by learned Courts below. It has been vehemently contended by learned counsel for the petitioner that both the Courts committed illegality in ordering for eviction of present petitioner on the ground of non-payment of rent as provisional assessment of rent as made by learned Rent Controller is not legal. It has been further contended that admittedly present respondent-landlady has purchased the premises in dispute vide registered sale deed dated 22.11.2010 and that there was no assessment of any alleged arrears of rent in favour of respondent-landlady at the time of registration of sale deed and hence, it is contended that she is not entitled to claim rent for the period prior to 22.11.2010. Further contends that rent for the earlier period was already paid by petitioner to the previous landlord. It is further contended that however, without considering the said plea of petitioner, learned Rent Controller directed the petitioner to pay rent for the period from 1.2.2008 to 31.3.2011 alongwith interest and cost, i.e., total `2,58,740/-. It is further contended that appellate authority also without considering the plea of present petitioner dismissed the appeal in a summary manner. He has also placed reliance upon Harjit Sngh Uppal v. Anup Bansal 2011(2) Apex Court Judgments 305 (S.C.) and contends that petitioner is having right to challenge the assessment order in appeal. On the other hand, it has been contended by learned counsel for the respondent that order of learned Rent Controller making provisional assessment of rent on 28.3.2011 was already challenged by the present petitioner by filing a revision petition before this Court which was C.R.No.6607 of 2011(O&M) -3- dismissed vide detailed order, Annexure P5, dated 22.7.2011 and it was specifically held that present petitioner-tenant was liable to make payment of provisional rent as assessed by learned Rent Controller within the period granted and on failure he is liable to be ejected and Rent Controller is having no other choice but to pass an order for ejectment of the petitioner- tenant. It is further contended that the said judgment rendered by this Court has become final and hence, it is contended that in view of the said judgment, the impugned ejectment order was passed by both the Courts below and hence, it is contended that it cannot be said that any illegality has been committed by learned Courts below warranting interference by this Court. Admitted facts are that rent was assessed by learned Rent Controller in this case vide order dated 28.3.2011 and present petitioner was called upon to pay `2,58,740/-. There is also no dispute that within stipulated period the payment was not made and rather an application was filed for refixation of provisional rent, which was also dismissed on 20.4.2011, Annexure P4, and another opportunity was given by learned Rent Controller to the present petitioner to make the payment of the provisional rent. The said orders, i.e., orders making provisional assessment of rent as well as second order dismissing application of petitioner for refixation of the rent was challenged by way of filing of a revision petition bearing No.2703 of 2011 by present petitioner and another revision petition was also filed by respondent-landlady, i.e., Civil Revision No.4312 of 2011, challenging the order of rent Controller granting another opportunity to petitioner to tender the rent. Both the revision petitions were decided together by this Court vide order dated 22.7.2011, Annexure P5, dismissing C.R.No.6607 of 2011(O&M) -4- revision petition filed by present petitioner and allowing the revision petition filed by present respondent-landlady and the order passed by learned Rent Controller granting another opportunity to petitioner to tender the assessed rent was declined. The relevant paragraph of the judgment reads as under:- “Admittedly, the provisional rent was assessed by the Rent Controller on 28.3.2011 and the tenant was directed to make the payment by 29.3.2011. The aforesaid order of provisional assessment was never challenged by the tenant within the statutory period as provided and in this view of the mater since the tenant had committed the default by not paying the provisionally assessed rent upto the stipulated date, the Rent Controller had no jurisdiction to extend the time for tendering of provisionally assessed rent. It there is a fault on the part of the tenant, the eviction order has to follow, the order dated 22.4.2011 granting opportunity to the tenant to make the payment of provisionally assessed rent cannot be sustained and is liable to be quashed to that extent.” Law on the point has been settled by Hon'ble Apex Court in Rakesh Wadhawan v. M/s.Jagdamba Industrial Corporation (2002-2) 131 PLR 370 (SC): AIR 2002 SC 2004, relevant paragraphs of which read as under: To sum up, our conclusions are: 1. In Section 13(2) (i) proviso, the words 'assessed by the Controller' qualify not merely the words 'the cost of C.R.No.6607 of 2011(O&M) -5- 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 cost of application'. 2. The proviso to Section 13(2)(i) of East Punjab Urban 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 cost 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. 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 C.R.No.6607 of 2011(O&M) -6- 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 from 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 regularity the rent falling due month by month during the pendency of the proceedings.” While placing reliance upon the judgment of Hon'ble Apex Court rendered in Rakesh Wadhawan and others' case (supra), a Division Bench of this Court in a judgment rendered in Civil Revision No.4234 of 2008 decided on 9.4.2010 (Harish Kumar and others v. State Bank of India) observed as under:- “18 In view of the fact that the respondent-tenant has failed to deposit the amount of provisional rent and costs etc., as ordered by the Rent Controller vide order dated 19.3.2007 within the stipulated period, the Rent Controller was duty bound to pass ejectment order against the tenant. By not doing so, an error in law has been committed, which needs to be rectified by this Court. Case of the petitioners- C.R.No.6607 of 2011(O&M) -7- landlords is fully covered by ratio of the judgment of the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra) and the judgment of a Division Bench of this Court in Rajan alias Raj Kumar's case (supra).” This point of law is being followed by this Court consistently. Reference can be made to Rajan alias Raj Kumar v. Rakesh Kumar Vol.CLVIII-(2010-2) PLR 201, wherein it was observed as under:- “11. The view taken in Rakesh Wadhawan's case (supra) was reiterated by a three Judges Bench of the Hon'ble Supreme Court in Vinod Kumar Vs. Prem Lata, 2003 H.R.R. 699. The afore said case was disposed of by the Hon'ble Supreme Court by making a reference to the ratio of earlier judgment of the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra). Thereafter a review application was moved, wherein it was contended that when the judgment was passed in the above said case, two earlier decisions of the Hon'ble Supreme Court in Rajinder Kumar Joshi Vs. Veena Rani, 1992 H.R.R. 529 and Rubber House Vs. Excelsior Needle Industries (Private) Limited, 1989, H.R.R. 183 were not taken into consideration. A three Judge Bench of the Hon'ble Supreme Court in Vinod Kumar's case (supra) held that the judgments in the cases of Rajinder Kumar Joshi's case (supra) and Rubber House's case (supra) did not lay down correct proposition of law and the ratio of judgment of Rakesh Wadhawan's case (supra) was reaffirmed.” On the same point, reference can also be made to Madan lal C.R.No.6607 of 2011(O&M) -8- and another v. Baldev Raj, 2004(2) PLR 834; Mrs.Birinder Khullar v. Maninder Singh, 2011(2) RCR (Civil) 751; Smt.Titu Peter v. Shri Mohinder Raj Singh, 2010(2) HLR 358; Sardar Trilochan Singh v. Sardar Balwant Singh 2010(2) HLR 348; Sudhir Kumar v. Kuldip Singh Malhotra Vol.CLX-(2010-4) 658; and M/s. S.Nihal Singh Motors and others v. Smt.Shama Malhotra and another, 2004(3) PLR 389. So far as Harjit Singh Uppal's case (supra) is concerned, upon which reliance has been placed upon by the petitioner, it has been contended by learned counsel for the respondent that the same is not applicable to the facts of present case as in that case the order assessing provisional rent was challenged for the first time in appeal and that the same was not challenged earlier and hence, order passed by appellate authority remanding the case with direction to rent Controller to re-assess the rent was upheld. However, it is contended that in this case the order assessing provisional rent has already been challenged by present petitioner by filing revision petition before this Court, which was dismissed by this Court and the order has become final and hence, it is contended that the Courts below were having no alternative but to pass order of eviction pursuant to order of this Court passed in Annexure P5. There is force in the argument of learned counsel for the respondent. Order making provisional assessment of rent by rent Controller and declining application of present petitioner for reviewing the said order and for refixation of provisional rent was already considered by this Court and the request was declined vide detail order passed in Annxure P5. The said order was never challenged by present petitioner and the same has attained finality. C.R.No.6607 of 2011(O&M) -9- In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned courts below while passing the impugned orders or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 12.12.2011 ( Ram Chand Gupta ) meenu Judge Note: Whether referred to Reporter? Yes/No.