C.R.No.6834 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.6834 of 2011 Date of decision: 8.11.2011 Vinay Kumar ...Petitioner vs Jawahar Lal ....Respondent CORAM: MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Arun Nehra, Advocate, for the petitioner. -- Rakesh Kumar Garg,J. The brief facts giving rise to this petition are that the respondent-landlord filed an ejectment application against the petitioner on 9.4.2007 seeking his ejectment on the ground that he has failed to pay the rent at the rate of Rs.2400/- per month of the demised premises with effect from 1.8.2004. As per the defence taken by the petitioner the rate of rent for the demised premises was Rs.1400/- per month and the rent stood paid upto June 2006. The petitioner had further taken the stand that he was ready to pay rent at the rate of Rs.1400/- per month with effect from 1.7.2006. Petitioner had also taken a plea that a Panchayati compromise had taken place between the parties and it was resolved that upto 31.12.2007 petitioner was to pay a sum of Rs.5000/- only. It is a matter of record that Rent Controller vide order dated 17.4.2010 assessed provisional rent at the rate of Rs.2400/- and directed the petitioner to pay the arrears of rent at the aforesaid rate with effect from 1.8.2004 till the date of filing of the petition with statutory interest and C.R.No.6834 of 2011 2 costs of Rs.600/-, with a further direction to the petitioner to continue to pay rent during the pendency of the proceedings. Vide aforesaid order petitioner was directed to make payment of said provisional rent on the next date of hearing which was fixed as 7.6.2010. However, petitioner challenged the aforesaid order dated 17.4.2010 by filing C.R.No.3581 of 2010 before this Court, While issuing notice of motion for 18.8.2010, this Court vide its order dated 25.5.2010 stayed operation of the impugned order dated 17.4.2010. The said revision petition was disposed of by this Court vide judgment dated 1.10.2010 observing as under:- “ The impugned order, assessing the provisional rent, is interim in nature. As per the dicta of law laid down in Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation AIR 2002 Supreme Court 2004, any deficiency can be made good lateron. Therefore, in the present case, the parties shall adduce their evidence for determination of the quantum of rent. In case, the Rent Controller, lateron, on basis of the evidence, comes to the conclusion that the rate of rent is Rs.2,400/- per month, then the petitioner/tenant is bound to make the deficiency good along with the interest and costs. At the moment, balance of convenience weighs in favour of the tenant. The impugned order, passed by the Rent Controller, is modified and the provisional rent is assessed at the rate of Rs.1,400/- instead of Rs.2,400/- per month. The petitioner/tenant shall pay the rent at the rate of Rs.1,400/- per month for the period, as specified by the Rent Controller, along with the interest and costs. Anything stated herein shall not be construed as the final expression on the merits of the case. With the observations made above, the present revision petition is disposed.” C.R.No.6834 of 2011 3 In the meantime, petitioner filed C.M.No.26935-CII of 2010 in Civil Revision No.3581 of 2010. The said application was disposed of by this Court vide order dated 28.10.2010, which reads thus:- “ No ground, to entertain the present application, is made out as specifically in the order dated 01.10.2010, the rate of rent was modified from Rs.2400/- to Rs.1400/- per month. The period, for which the Rent Controller, Narwana, had assessed the rent was upheld. Hence, no interference is warranted in the present application and the same is dismissed.” Thereafter, the matter was taken up by the Rent Controller on 26.11.2010. No provisional rent was paid on that date and a request for adjournment was made submitting that petitioner shall pay rent on the next date because 26.11.2010 was fixed for effecting orders from this Court. Respondent-landlord also filed an application for eviction of the petitioner due to non payment of provisional rent. On 2.12.2010 petitioner made a statement before the Rent Controller maintaining that he had already paid rent at the rate of Rs.1400/- per month to the respondent upto 31.12.2007 except a sum of Rs.5000/- and rent at the rate of Rs.1400/- per month was due only for the period from 1.1.2008 to 31.12.2010 amounting to Rs.50,400/- and he was ready to pay Rs.50,400/- with costs of Rs.600/- and another sum of Rs.5000/ i.e.56000/- with statutory interest to be calculated by the Court. The respondent did not accept the said rent and stated that as per orders of this Court provisional rent at the rate of Rs.1400/- was fixed with effect from 1.8.2004 and as such tender was not in accordance with the orders of the Court, as rent was not paid with effect from 1.8.2004 as the tenant was tendering rent with effect C.R.No.6834 of 2011 4 from 1.1.2008. Keeping in view the aforesaid facts and the submissions made on behalf of the learned counsel for the parties, the Rent Controller vide order dated 2.2.2011 while placing reliance upon a Division bench judgment of this Court in the case of Rajan alias Raj Kumar vs. Rakesh Kumar 2010 (1) R.C.R.(Rent) 386 held that since the petitioner has failed to pay/deposit the provisional rent as assessed the eviction order has to follow. The relevant part of the aforesaid order reads thus:- “ Now coming to the circumstances of the case in hand, it is a fact on record that provisional rent was assessed vide an order dated 17.04.2010 passed by this court whereby respondent-tenant was directed to pay provisional rent @ Rs.2400/- w.e.f.01.08.2004 till date of petition with cost of Rs.600/- and statutory interest and respondent was also directed to continue to pay rent becoming due during the pendency of the proceedings till disposal of main petition. Respondent was directed to pay rent on the next date of hearing which was 07.06.2010 passed in C.R.No.3583/2010 by Hon'ble High Court operation of provisional assessment order dated 17.4.2010 was stayed and said CR was finally disposed off vide an order dated 01.10.2010 passed by Hon'ble High Court with modification made only in the rate of rent from Rs.2400/- per month to Rs.1400/- per month and period of rent was upheld vide another order dated 28.10.2010 passed in Civil Misc.No.26935-CII of 2010. Thus, it is a matter of fact that respondent-tenant was required to pay provisional rent @ Rs.2400/- per month w.e.f. 01.08.2004 till date of petition with costs of Rs.600/- and statutory interest, but respondent-tenant did not pay such rent even on 02.12.2010 i.e. next date fixed in this Court and rather from the statement made by respondent on 02.12.2010 it C.R.No.6834 of 2011 5 was clear that respondent had refused to pay rent (w.e.f.) 01.08.2004 till date of petition (09.04.2007) and rather respondent had taken the stand that he had already paid rent @ Rs.1400/- per month till 31.12.2007. Further it is also a fact on record that respondent offered to pay rent for the period @ Rs.1400/- for the period 01.01.2008 to 31.12.2010 amounting to Rs.50,400/- with cost of Rs.600/- and another outstanding sum of Rs.5000/- i.e. total Rs.56000/- besides interest, but petitioner refused to receive such tender on the ground that it was not in accordance with provisional assessment order passed this Court. In such a situation respondent-tenant was of course, under an obligation to pay provisional rent, assessed by the Court but he failed”. Therefore, in such facts and circumstances, mandate of ruling of Division Bench of Hon'ble Punjab & Haryana High Court in case titled Rajan alias Raj Kumar Versus Rakesh Kumar 2010(1)HRR 264 fully applies wherein it has been held that this court is left with no option except to pass an order of ejectment. As such, misc.application, filed by petitioner- landlord, is allowed and as a sequel thereof rent petition is hereby allowed. Respondent-tenant is directed to hand over the vacant possession of the demised premises to the petitioner- landlord within a period of two months from today. Memo of cost be prepared. File be consigned to the record room after due compliance”. The appeal filed by the petitioner against the aforesaid order was also dismissed by the Appellate authority vide judgment dated 26.8.2011,the relevant part of which reads thus: “ In this case relationship of landlord and tenant is admitted one. According to landlord/petitioner, tenant has failed to pay rent from 1.8.2004 till the date of filing of petition i.e.9.4.2007. Tenant objected it claiming to have paid it. He has disputed rate of rent also. According to him same is Rs.1400/- C.R.No.6834 of 2011 6 per month. However, learned Rent Controller passed an order thereby assessing provisional rent of Rs.2400/- per month to be paid by tenant from 1.8.2004 till the date of filing petition i.e. 9.4.2007. Later on it was challenged before Hon'ble High Court and rent was fixed at the rate of Rs.1400/- per month. But he did not offer to pay it from 1.8.2004. Consequently, this ejectment order was passed. Even after filing of the present petition he has failed to pay demanded rent even at the rate of Rs.1400/- per month claimed by him and accepted by Hon'ble High Court. In such situation payment of rent for current period does no entitle him an opportunity to contest the case. There, his appeal has no merit.” Still not satisfied, the tenant petitioner has filed the instant revision petition before this Court. Challenging the aforesaid orders, learned counsel for the petitioner while relying upon judgments of this Court in the case of Gurpreet Singh and another v. Brijinder Bhardwaj and another, 2011 (1) RCR (Rent) 319 and Sharda Sharma vs. Sohan Lal, 2011 (2)RCR (Rent) 89, has vehemently argued that it is the duty of the Rent Controller to assess the provisional rent, costs and interest and if there is any mistake in the calculation of any amount or if it is not properly assessed by the Rent Controller, the tenant cannot be held liable for non payment of provisionally assessed rent. Elaborating his argument further, learned counsel for the petitioner has further argued that the Rent Controller is obliged under the Act to assess the exact amount of rent accrued thereon, cost of the petitioner and the exact total amount which is liable to be paid by the tenants as a provisional rent on the date fixed by the Court. Since in the instant case, C.R.No.6834 of 2011 7 Rent Controller has not assessed the amount of provisional rent to be paid to the respondent-landlord, the petitioner was not liable to be evicted and thus the impugned orders are liable to be set aside. I have heard the learned counsel for the petitioner and perused the impugned order as well as other documents placed on record of the case and the judgments cited by the learned counsel for the petitioner. The facts as noticed in the earlier part of the judgment are not disputed. Counsel appearing on behalf of the petitioner has also very fairly admitted that in case of default in payment of provisionally assessed rent the eviction order has to follow in view of the Divisional Bench judgment of this Court in the case of Rajan alias Raj Kumar's case(supra). However, the contention of the learned counsel for the petitioner before this Court is that the Rent Controller had not assessed the actual rent and interest thereon which was payable by him for the period with effect from 1.8.2004 till the date of filing of the petition and in the absence of the actual assessment of the rent by the Rent Controller and also non fixation of the period for which payment of the rent was to be made the eviction of the petitioner could not have been ordered in view of the law laid down by the Supreme Court in the case of Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation, 2002 (1) R.C.R.(Rent) 514. However, it may be noticed that vide order dated 17.4.2010 while assessing the provisional rent it was held by the rent Controller that petitioner was liable to make payment of arrears of rent @ Rs.2400/- per month with effect from 1.8.2004 along with costs of Rs.600/- and statutory interest till the date of filing of the petition i.e.9.4.2007 whereas the petitioner has taken a specific stand that he C.R.No.6834 of 2011 8 had already paid the rent upto 31.12.2007 and the rate of rent was Rs.1400/- per month and the said order was modified by this Court vide its order dated 1.10.2010 and while modifying the order of assessment of provisional rent to the extent of rate of rent, (i.e. instead of Rs.2400/- per month the rate of rent was assessed at Rs.1400/- per month for the purpose of provisional assessment) it was specifically ordered that the petitioner shall pay the provisional rent at the rate of Rs.1400/- per month for the period as specified by the Rent Controller along with the interest and costs. In spite of the application moved by the petitioner, this Court vide order dated 28.10.2010 upheld the period for which the Rent Controller, Narwana, had assessed the rent to be paid. In view of the aforesaid orders of this Court dated 1.10.2010 and 28.10.2010 passed in Civil Revision No.3581 of 2010, it does not lie in the mouth of the petitioner to say that the Rent Controller has not fixed the exact period for which provisionally assessed rent was to be paid. No other grievance was raised by the petitioner against any other ingredient of assessment of provisional rent as per order dated 17.4.2010. At no stage before this Court in C.R.No.3581 of 2010 petitioner had sought to raise the grievance on the other necessary components of provisional rent except the rate of rent and the period for which the same was to be paid. The judgments relied upon by the learned counsel for the petitioner before this Court in the case of Gurpreet Singh (supra) and Sharda Sharma (supra) are not applicable in the facts and circumstances of the case, as in the case of Gurpreet Singh (supra), the tenant had tendered the provisional rent on the date fixed. However, rent for period of 12 months was not paid because of miscalculation and on coming to know of the said mistake the tenant C.R.No.6834 of 2011 9 himself had moved an application and offered to make the payment of the said amount. In Sharda Shama's case (supra) also the provisional rent was assessed and ordered to be paid with interest at the rate of 6% per annum. A short tender was made due to mis-calculations and the tenant had made an application immediately after making the payment of the provisionally assessed rent, whereas, in the instant case there is no grievance of calculation and petitioner has taken a specific stand that he has already paid rent upto 31.12.2007 and he was not liable to pay the rent with effect from 1.8.2004 upto 31.12.2007 except Rs.5000/- and further that petitioner tendered the amount of provisional rent on 2.12.2010 before the Rent Controller by making specific statement that he was ready to make the payment with effect from 1.8.2008 at the rate of Rs.1400/- per month plus Rs.5000/- as balance upto 31.12.2007 along with statutory interest. Thus, in the instant case, petitioner had taken a specific stand that he had already paid the rent for the period in dispute whereas petitioner failed to prove his said assertion that he had already paid the rent for the period with effect from 1.8.2004 to 31.12.2007 except Rs.5000/-. It is well settled that it is for the tenant to prove the payment of rent. In the instant case there is not an iota of evidence to prove the aforesaid averment of the petitioner. Having failed to prove his defence petitioner cannot be allowed to make up deficiency in payment of the rent as argued. In fact, the judgment of the Supreme Court in Rakesh Wadhawan's case (supra) has already been explained by a Division Bench of this Court in the case of Rajan alias Raj Kumar (supra), holding that the tenant is liable to pay the entire amount of provisional rent on the date fixed by the Rent Controller and on his failure C.R.No.6834 of 2011 10 to do so, he is liable to be evicted as an automatic consequence. Thus, for the reasons recorded above, I find no merit in this petition and the same is dismissed. (Rakesh Kumar Garg) Judge November 8, 2011 rk