C.R. No.2606 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.2606 of 2010 (O&M) Date of Decision: 14.10.2010 Smt. Saroj Kapoor ……Petitioner VERSUS Sh. Joshwa Choudhary and another ……Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Sudhir Paruthi, Advocate for the petitioner. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Present petition is filed challenging the order dated 15.1.2010 passed by learned Appellate Authority, Jaland- har, whereby the appeal filed by the tenant (respondent herein) was allowed. 2. Brief facts of the present case are that landlord (petitioner herein) has filed eviction petition against the tenant/re- spondent contending that tenant is in arrears of rent w.e.f. C.R. No.2606 of 2010 (O&M) -2- 1.1.2004 and has ceased to occupy the demise premises for the period of four months without any reasonable cause. The ground of bona fide need was also alleged by the landlord/petitioner. 3. Tenant/respondent appeared before the learned Rent Controller and both the parties were heard by the learned Rent Controller on the question of provisional assessment of rent. Learned Rent Controller vide order 11.9.2009 di- rected the tenant to pay rent w.e.f. 1.1.2004 till 28.2.2008 @ Rs.900/- p.m. i.e. for the period of 50 months amount- ing to Rs.45,000/- alongwith interest amounting to Rs.6885/- and costs of petition as Rs.1000/- total to the tune of Rs.52,885/- on or before 15.10.2009. 4. In the present case, tenant has failed to deposit any amount in compliance of the order dated 11.9.2009, hence, learned Rent Controller while placing reliance on the judgment of Rakesh Wadhawan vs. M/s Jagdamba Industrial Corporation reported in 2002(1) R.C.R.(Rent) 514 has passed the eviction order against the tenant. Feeling aggrieved from the order passed by the learned Rent Controller tenant has filed statutory appeal before the learned Appellate Authority. Learned Appellate Authority having observed that tenant can ask for another opportunity for depositing the rent, allowed the appeal. C.R. No.2606 of 2010 (O&M) -3- 5. Respondents were reported having been served person- ally vide report dated 17.7.2010. None is appearing on behalf of the respondents, however, petition was ad- journed twice awaiting the respondents on 21.7.2010 and 9.9.2010. Petition is being heard ex-parte in the absence of the respondents. 6. The Hon’ble Apex Court in the matter of Rakesh Wadha- wan (supra) in paragraphs No.30, 31 & 32 has observed as under:- “30. 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 application' but the en- tire 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 as- sessment of (i) arrears of rent (ii) the interest on such arrears, and (iii) the cost of applica- tion 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 hear- ing' after the passing of such order of 'assess- ment' by the Controller so as to satisfy the requirement of the proviso. C.R. No.2606 of 2010 (O&M) -4- 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 com- pliance, the inquiry shall continue for finally adjudicating upon the dispute as to the ar- rears 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 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 pos- session of the premises by giving a reason- able 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 C.R. No.2606 of 2010 (O&M) -5- substantial regularity the rent falling due month by month during the pendency of the proceedings. 31. The view of the law so taken by us ad- vances the object sought to be achieved by the legislation, serves best the interests of landlord and tenant both, removes uncertainty in litigation and obscurity in drafting of the provision and also accords with the principles of justice and equity. Even if, it is an innova- tion, it is in the field of procedural law, without affecting the substantive rights and obliga- tions of the landlord and the tenant and such innovation is permissible on the basis of authority and supported by principles of jus- tice, good sense and reason. We have not touched the substantive rights of landlord and tenant, and are feeling satisfied with a do little in the field of procedure so as to effectu- ate the purpose of enactment. 32. We do not find that the Controller has, in the present passed any order under Section 13(2)(i) proviso as aforesaid and therefore the order for eviction stands vitiated on the view of the law which we have taken hereina- bove. The appeal is allowed. The im- pugned judgment of the High Court and the orders of the Rent Controller as also of the Appellate Authority are all set aside. The case is sent back to the Controller. The Con- troller shall, after affording the parties an op- C.R. No.2606 of 2010 (O&M) -6- portunity of hearing, pass a provisional order under the proviso to Section 13(2)(i) and af- ford the tenants an opportunity of making payment or tender and then proceed to de- cide the case afresh consistently with the law as settled hereby. The costs before the Appellate Authority, the High Court and this Court shall be borne by the parties as in- curred. The costs before the Controller shall abide the result.” 7. There were conflicting views of this Court in the matter of Rajinder Lal vs. Gopal Krishan reported in 2006 (2) HRR 265 and in the matter of Madan Lal vs. Baldev Raj reported in 2004(2) HRR 46. Learned Single Judge of this Court in the matter of Rajinder Lal (supra) has held that opportunity for regular trial has to be given to the pe- titioner despite of the fact that petitioner has failed to pay the arrears of provisional rent as assessed by the learned Rent Controller. However, another learned Single Judge of this Court in the matter of Madan Lal (supra) has held that no other opportunity is required to be granted to the tenant to deposit the rent if tenant has failed to deposit/tender the rent in compliance of the order of learned Rent Controller assessing the provisional rent. Ultimately, the matter has been placed before the Divi- sional Bench of this Court. In the matter of Rajan @ Raj C.R. No.2606 of 2010 (O&M) -7- Kumar vs. Rakesh Kumar reported in 2010(1) HLR 264, the Divisional Bench of this Court has held that view taken by the learned Single Judge of this Court in the matter of Madan Lal (supra) is correct and view taken by another learned Single Judge in the matter of Rajinder Lal (supra) is not correct. 8. In view of the dictum of the Division Bench of this Court in the matter of Rajan @ Raj Kumar (supra), I find that if tenant fails to deposit/tender the amount as per the order of the learned Rent Controller while provisionally assess- ing the rent, then straightway eviction order shall be passed without granting further opportunity to deposit the amount. In view of the dictum of the Hon’ble Apex Court in the matter Rakesh Wadhawan (supra) as interpreted by the Division Bench of this Court in the matter of Rajan @ Raj Kumar (supra), view taken by the Appellate Authority can not be sustained in the eyes of law. 9. Hence, the petition is allowed. Order impugned dated 15.1.2010 is set aside and order passed by learned Rent Controller dated 15.10.2009 is restored. ( ALOK SINGH ) 14th October, 2010 JUDGE ashish