IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.8098 of 2010 (O&M) Date of Decision : 13.12.2010 Ram Bhaj ....Petitioner Versus Balbir Chand ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.O.P.Goyal, Sr.Advocate with Ms.Shilpa Sahi, Advocate and Ms.Ranjeeta Gill, Advocate for the petitioner. ..... MAHESH GROVER, J. This revision petition by the tenant is directed against the orders of the Rent Controller and that of the Appellate Authority dated 20.8.2008 and 14.10.2010, respectively. The respondent-landlord preferred a petition against the petitioner on two counts – i) non-payment of rent @ Rs.2,000/- from 1.10.2004 till the date of filing of the petition in the year 2007; and ii) personal necessity. The petitioner is the tenant in a shop and claims that he is occupying the demised shop for the last 20 years and that the rate of rent on the date of filing of the petition was not Rs.2,000/- per month as claimed by the respondent-landlord, but was, in fact, Rs.800/- and at the inception of the tenancy the rate of rent was Rs.350/-. It was also pleaded that the tenancy was oral and that no receipts had been issued to him by the respondent-landlord even C.R.No.8098 of 2010 (O&M) -2- though he had been paying the rent regularly and that he was only in arrears of rent for three months preceding the filing of the petition and not for three years as is claimed by the respondent. The Rent Controller proceeded to assess the provisional rent and concluded that the rate of rent was Rs.800/- per month which was also the rate of rent as pleaded by the petitioner in his response to the rent petition. The petitioner was thus required to pay the provisional rent @ Rs.800/- subject to the final adjudication of the matter inter se between the parties, which he failed to do inviting an adverse order by the Rent Controller in August 2008. In appeal, the findings of the Rent Controller were affirmed which resulted in filing of the instant petition, wherein learned counsel for the petitioner contends that the findings of the Rent Controller and that of the Appellate Authority are erroneous. He has contended that the tenancy was oral and no receipt was ever issued by the respondent even though he was in occupation of the premises in dispute for the last 20 years. He further contended that the Rent Controller ought to have appreciated the fact that he was in arrears of rent for the last three months and not three years as claimed by the respondent and once the rate of rent as claimed by the landlord has been falsified, this should have been sufficient for the Rent Controller to examine the plea of the petitioner that the arrears were only for a period of three months and not for a period of three years. Reliance was placed on Faquir Chand v. Bhagwan Dass, 1994(2) RCR 303 to contend that it is not expected of a landlord to remain quiet for three years in the eventuality of the tenant not paying the C.R.No.8098 of 2010 (O&M) -3- rent. He further contended that the entire case as set up by the landlord is false and should have been rejected whereas the plea of the petitioner should have been accepted. After hearing the learned counsel for the petitioner, I am of the opinion that there is no merit in the petition. The rate of rent which was claimed by the petitioner was accepted by the Rent Controller as provisional rent and an opportunity was given to the petitioner to satisfy the demand of rent as raised by the landlord. The petitioner throughout the proceedings never demonstrated his bona fides by either stating that he was willing to make the payment of the rent subject to the final adjudication of the matter in which eventuality his plea of being in arrears of rent could have been tested subject to adjustment of the rent which he would have paid in excess. Having missed the bus completely it is not for this Court to grant any indulgence to the petitioner at this stage of the proceedings, more so when the observations of Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others (2002)5 SCC 440 are straightway attracted to the facts of this case. The Supreme Court in Rakesh Wadhawan's case (supra) observed as follows :- “30. To sum up, our conclusion 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 entire proceeding 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”. C.R.No.8098 of 2010 (O&M) -4- 2. The proviso to Section 13(2)(i) of the East Punjab Urban Rent 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 the 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 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 C.R.No.8098 of 2010 (O&M) -5- order directing the 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.” A Division Bench of this Court in Rajan alias Raj Kumar v. Rakesh Kumar 2010(1) RCR 386 has recently answered a reference wherein ratio of Rakesh Wadhawan's case supra) was accepted. Having regard to the aforesaid there is no merit in the petition. At this stage, learned counsel for the petitioner contends that he will not press the instant petition in the eventuality of his being granted some time to vacate the demised premises and also further that he will furnish an undertaking before the Rent Controller that he will vacate and hand over the physical possession of the shop to the respondent-landlord on or before 31.12.2011. The prayer of the petitioner is seemingly justified for the reason that the petitioner is an occupant of the shop and may require some time to make alternate arrangements. C.R.No.8098 of 2010 (O&M) -6- Having regard to the aforesaid the petition is dismissed as not pressed with the following observations :- i) That the petitioner shall furnish an affidavit before the Rent Controller, Ludhiana within a period of four weeks from today undertaking to vacate the premises in question and hand over the physical possession of the premises to the respondent on 31.12.2011. ii) That the petitioner shall restore the possession of the premises in question to the respondent without damage to the property and he shall not make any alteration or addition to the property and also continue to pay the rent at the agreed rate by the 7th of each month and shall also pay all the arrears, if any, on account of rent or any other terms of the tenancy while furnishing the undertaking. iii) That the petitioner shall be bound by the undertaking and any single default made by the petitioner on account of non-payment of rent shall invite eviction of the petitioner and for this purpose on an application being made by the respondent to the Executing Court the said Court shall be free to execute the order of eviction against the petitioner forthwith by any mode including granting police help to the respondent to retrieve possession of the shop. 13.12.2010 (MAHESH GROVER) JUDGE dss