CR No.680 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.680 of 2011 (O&M) Date of Decision: 05.05.2011 Ajmer Singh . . .Petitioner Versus Jagwinder Singh . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Gagandeep Toni, Advocate, for the petitioner. Mr.M.S. Cheema, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The landlord is in revision against the order dated 27.10.2010 passed by Rent Controller, SAS Nagar, Mohali by which an application filed by him for ejectment of the tenant for non-payment of provisional rent on the stipulated date has been dismissed. In brief, the case set up by the landlord is that he had let out 3rd floor of SCF No.66, Phase VII, Mohali to the tenant on rent for the period of 1.6.2005 to 31.5.2006 @ `5500/- per month, 1.6.2006 to 31.5.2007 @ `5885/- per month and 1.6.2007 to 31.5.2008 @ `6297/- per month. As the tenant did not pay the rent @ `6297/- per month w.e.f. September 2007, the landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) on 14.12.2007 in which after service of the tenant, order of assessment of provisional rent was passed on 5.8.2009 to the following effect: - “Reply to application for assessment of provisional rent filed. Heard. Petitioner has claimed the rent @ `6297/- per month w.e.f. Sept. 2007. On the contrary, respondent has not controverted the rate of rent to be Rs.6297/- per CR No.680 of 2011 (O&M) - 2 - month. However, respondent has averred that the rent already stood paid upto Jan. 2008. No rent receipt for the intervening period between September, 2007 and Jan. 2008 has been placed on record by respondent. So the plea of respondent that he has paid the rent upto Jan. 2008 is not sustainable in view of the law laid down by the Hon’ble High Court of Punjab & Haryana in pronouncement titled as “Rajinder Kumar Vs. Bachan Singh” 2008(2) RCR 171 wherein it has been observed that: “Contention of tenant that he had paid the rent, but landlord did not issue the rent receipts – contention of tenant not believed – Held – In case, the landlord was not issuing the receipts to him, against the payment of rent, then he could move an application in the Court of Rent Controller for the deposit of the same. He could also sent the rent to the landlord by way of money order – He could also deposit the rent in the account of the landlord by way of cheque. With these observations I am of the considered opinion that the rent @ `6297/- per month is due from September, 2007. Accordingly, I assess the provisional rent @ `6297/- per month to be due w.e.f. September 2007 alongwith cost which are assessed as `300/- and interest @ 6% p.a. Accordingly, respondent is directed to tender rent @ `6297/- p.m. w.e.f. September 2007 till date CR No.680 of 2011 (O&M) - 3 - alongwith interest @ 6% per annum and cost of `300/-. To come up for tender of rent for 22.9.2009.” The aforesaid order was passed in the presence of counsel for the tenant but on 22.9.2009 when tenant was supposed to tender the rent, neither he nor his counsel appeared, consequently the learned Rent Controller passed the following order: “Present: Petitioner with Sh. Gagandeep Toni, Advocate. Case repeatedly called. None has come present on behalf of respondent. Neither respondent nor his counsel has appeared. It is now 3.25 P.M. Respondent is proceeded against ex parte. An application for passing eviction order for non tender of provisional rent filed by petitioner. To come up for consideration for 31.10.2009.” On the same day, the landlord filed an application before the Rent Controller for passing an order of eviction against the tenant on the ground that he has failed to pay the rent on the date fixed by the Rent Controller.. The learned Rent Controller instead of passing the eviction order immediately adjourned the matter to 31.10.2009 for consideration. On that day, the tenant had appeared and filed an application for setting aside ex parte order dated 22.9.2009. The landlord suffered two statements - (i) Statement of Sh. Gagandeep Toni, counsel for the petitioner – I have no objection if ex parte proceedings against the respondent may be set aside without prejudice to the rights of the petitioner; (ii) Statement of Ajmer Singh, petitioner on S.A. – I accept the above mentioned rent under protest being insufficient and delayed and without prejudice to my rights in the petition and application dated 22.9.2009. Be that as it may, the proceedings before the Rent Controller continued and the tenant made the payment of rent for the month of November CR No.680 of 2011 (O&M) - 4 - 2009 to March 2010 amounting to `31,485/- through cheque No.091117 dated 10.3.2010 drawn on State Bank of India, Bassi Road, Sirhind (Punjab) which was bounced because of insufficiency of funds and bank returned the cheque to the landlord with its Memo dated 23.3.2010. In any case, the learned Rent Controller, who was seized of the application of the landlord dated 22.9.2009 wherein he had prayed for eviction of the tenant on the ground of non-tendering of rent on the first date of hearing, dismissed the same vide the impugned order. Assailing the impugned order, learned counsel for the petitioner has submitted that the impugned order is patently illegal because the learned Rent Controller had no jurisdiction to extend the period of time for the purpose of tendering the rent. It is submitted that he should have ordered eviction on 22.9.2009 itself when he did not tender the assessed rent and should not have proceeded with the application of the landlord for the purpose of passing the order of eviction. In this regard, he has relied upon a decision of this Court in the case of “Sudhir Kumar Vs. Kuldip Singh Malhotra” 2010(4) PLR 658 wherein it has been held that the Rent Controller has no jurisdiction to extend the time to make deposit of the amount as assessed by him beyond the period already fixed while assessing the rent and a decision of the Division Bench of this Court in the case of “Rajan alias Raj Kumar Vs. Rakesh Kumar” 2010 (2) PLR 201 in which this Court had held that the view expressed by this Court in “Rajinder Lal Vs. Gopal Krishan” 2006(2) PLR 124 in which it has been held that in case of failure of the tenant in payment of arrears of provisional rent as assessed by the Rent Controller an opportunity for regular trial has to be given to the tenant is incorrect and the view expressed by this Court in the case of “Madan Lal and another Vs. Baldev Raj” 2004(2) PLR 834 in which it was held that in case the tenant fails to make the payment of rent assessed by the Rent Controller provisionally, the order of ejectment has to follow and nothing more is required to be done by the Rent Controller, has been approved. He has also relied upon a decision in the case of “Vikas alias Raju and another Vs. Harkesh Kumar” 2010(2) RLR 429 to contend that the tenant cannot seek extension of time on the hypothetical eventualities. He also submits that he had given no objection with regard to ex parte proceedings dated 22.9.2009 meaning thereby, he had allowed the tenant to join the proceedings but he had never condoned the act of the tenant of not CR No.680 of 2011 (O&M) - 5 - tendering the rent on the first date of hearing as is evident from the statement of the landlord which was recorded on 22.9.2009 where he had stated that he is receiving rent under protest being insufficient and delayed and without prejudice to his right in the petition and application dated 22.9.2009. It is thus, argued that the Rent Controller has committed an error of law while adjourning the case on 22.9.2009 for 31.10.2009 and further allowing the tenant to tender the rent and proceeded with the trial of the eviction petition which runs contrary to the Division Bench judgment of this Court in the case of Rajan alias Raj Kumar (Supra). He also submitted that even the subsequent conduct of the tenant is not pardonable as he had tendered the rent by way of cheque which has been dishonoured and is still in arrears of rent of subsequent months till date. In reply, learned counsel for the respondent has argued that admittedly the order dated 5.8.2009 was not challenged by the tenant but he was ready and willing to tender the rent on 22.9.2009 had he not noted the date of hearing wrongly as 25.9.2009, he would have definitely appeared before the Rent Controller. He also submits that the case was adjourned on 22.9.2009 because of the application filed by the landlord and on the adjourned date i.e. 31.10.2009, he had tendered the arrear of rent which was provisionally assessed by the Rent Controller and was accepted by the landlord, who had made the statement that ex parte proceedings may be set aside. Meaning thereby the explanation given with regard to non-appearance on 22.9.2009 was accepted. It is submitted that in the facts and circumstances of the case, the learned Rent Controller has rightly granted the opportunity to the tenant. I have heard both the learned counsel for the parties and perused the record. The facts of this case are not much in dispute, therefore, I would not refer to the facts again but the question arises as to whether the Rent Controller had the jurisdiction to extend the time for the purpose of tendering the rent in the given facts and circumstances of the case? Admittedly, order of assessment of provisional rent remained unchallenged and no rent was tendered on the stipulated date. Instead of passing an order of eviction simultaneously, the learned Rent Controller chose to proceed ex parte against the tenant and put up the application filed by the landlord for CR No.680 of 2011 (O&M) - 6 - hearing. On the adjourned date, the landlord had only made a statement for setting aside ex parte proceedings and not the order meaning thereby, he allowed the tenant to join the proceedings but he did not condone the lapse on the part of the tenant for not tendering the rent on the date fixed which is obvious from the statement made by the landlord that he was receiving the rent under protest being insufficient and delayed and without prejudice to his right in the petition and application dated 22.9.2009 which was filed for the purpose of eviction on the ground of non-tendering of rent on the date of hearing as stipulated in the order of assessment of provisional rent. In the case of Sudhir Kumar (Supra), the provisional rent was assessed on 10.9.2009, which was directed to be paid on 1.10.2009. Order dated 10.9.2009 was challenged by the tenant by way of revision i.e. CR No.5521 of 2009 which was dismissed on 25.9.2009 but liberty was granted to the tenant to approach the Rent Controller for extension of time to tender the arrears of rent so permissible under law. After that, the tenant moved an application before the Rent Controller on 1.10.2009 for extension of time to tender the arrear of rent but the learned Rent Controller vide his order dated 1.10.2009 passed the order of eviction for failure to make the payment in compliance with the provisional assessment order dated 10.9.2009 which was upheld in appeal vide order dated 7.1.2010 against which the tenant came up in revision before this Court where the tenant had alleged that the tender was short because the Rent Controller did not calculate the amount correctly. On the other hand, it was argued by the other side that in view of the decision of the Supreme Court in the case of “Rakesh Wadhawan and others Vs. M/s Jagdamba Industrial Corporation and others” 2002(2) PLR 370 (SC) and Division Bench judgment of this Court in the case of Rajan @ Raj Kumar (Supra), if the tenant fails to tender the arrears of rent on the stipulated date, order of eviction has to follow and nothing remains to be decided by the Rent Controller. Thus, it was held that the Rent Controller has no jurisdiction to extend the time to make deposit of the amount as assessed by the Rent Controller beyond the period already fixed by him. In the case of Rajan @ Raj Kumar (Supra) the Division Bench was to opine about the correctness of the conflicting views expressed by the two Single Benches of this Court in the case of Rajinder Lal (Supra) and Madan Lal and another (Supra) and had ultimately observed in view of the ratio of the judgment CR No.680 of 2011 (O&M) - 7 - in the case of Rakesh Wadhawan and others (Supra) that first date of hearing would mean the date of hearing after determination of provisional rent and if the tenant fails to deposit the rent on the said date, nothing remains to be done and an order of ejectment of the tenant has to follow. In the case of Vikas alias Raju and another (Supra), the provisionally assessed rent was not tendered on the first two dates of hearing on account of non-availability of funds with the tenant. This Court has held that “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 hospitalized 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 tenant and was also possessed of funds adequate enough for the purpose of aforementioned but he was disabled in the relevant behalf by facts beyond his control.” However, it was held that “Any extension of the hypothesised eventualities to the case of this category would be a travesty of law.” In nutshell, I am of the view that the landlord had not condoned the act of the tenant for not tendering the rent on the date stipulated in the order of assessing the provisional rent as is evident from the statement of the landlord and the Rent Controller has no jurisdiction to extend the time, unless the Court itself is not at fault for some reason, in view of the decision of the Division Bench of this Court in the case of Rajan @ Raj Kumar (Supra). In view of the aforesaid circumstances coupled with the fact that the tenant had paid the rent by way of cheque dated 10.3.2010 which has been dishonoured and is still in arrears of rent, he does not deserve to remain in possession and for that matter the impugned order is found to be patently illegal and hence the same is hereby set aside and revision petition is allowed. However, in the facts and circumstances of the case, parties shall bear their own costs. (RAKESH KUMAR JAIN) MAY 05, 2011 JUDGE Vivek