CR No.7571 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7571 of 2011 (O&M) Date of decision: 7.12.2011 Sunder Lal son of Chiman Lal ......Petitioner(s) Versus Narinder Sethi son of Bhagat Ram ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vijay Kumar Jindal, Advocate for the petitioner. Rakesh Kumar Garg, J. This is tenant's revision petition challenging the order dated 25.11.2010 of the Rent Controller, Kurukshetra ordering his ejectment from the shop in question and the judgment dated 28.11.2011 of the Appellate Authority dismissing his appeal against the aforesaid order. As per the averments, the respondent inducted the petitioner as a tenant on a monthly rent of Rs.700/- plus house tax in the shop in dispute being the owner and landlord of the said shop. The rent was increased from time to time after every five years and lastly the rent was fixed at Rs.700/- per month plus house tax and the receipts of payment of rent were issued to the petitioner every time whenever it was paid. It was further averred that the petitioner was liable to be evicted on the ground that he had not paid the rent of the said shop @ Rs.700/- per month plus house tax w.e.f. 1.11.2003 till date i.e. amounting to Rs.25,200/- plus house tax as imposed by the Municipal Council which was not deposited by the petitioner for the last more than five years for which he was liable to CR No.7571 of 2011 (O&M) 2 deposit. It was also submitted that the shop in dispute was unfit and unsafe for human habitation. It was further pleaded that the petitioner had committed acts of impairing the value and utility of the shop in question and was also guilty of his such acts of nuisance to the occupants of the neighbourhood. Since the petitioner refused to pay the arrears of rent and to hand over the vacant possession of the shop, the instant petition was filed. The petitioner objected the petition raising various preliminary objections. It was further submitted that the rate of rent was Rs.300/- per month and not Rs.700/- per month. He had already tendered the rent, costs, interest etc. as calculated by the Court. The shop in question was quite fit for human habitation. Other averments were also denied and dismissal of the ejectment petition was prayed. On the pleadings of the parties, the following issues were framed: “1. Whether the respondent is in arrears of rent and he is liable to be ejected for non payment of rent? OPP 2. Whether respondent is liable to be ejected on the ground of diminishing value and utility of the shop in question?OPP 3. Whether respondent is liable to be ejected for change of user of the shop?OPP 4. Whether the present petition is not maintainable?OPR 5. Whether petitioner has no cause of action to file and maintain the present petition? OPR 6. Whether petitioner is estopped by his own act and conduct from filing the present petition? OPR 7. Whether petitioner has concealed the true and material facts from the court? OPR 8. Relief.” Thereafter, the parties led their respective evidence. CR No.7571 of 2011 (O&M) 3 On 25.5.2007, the petitioner made a statement that the shop in question was taken on a monthly rent of Rs.300/- excluding house tax and was paying the rent regularly but the respondent never issued any receipt to him. He wanted to tender the rent for the period w.e.f. 1.11.2003 to 31.10.2006 at the rate of Rs.300/- per month and prayed for assessment of interest and cost. On the other hand, the respondent-landlord also made statement that the rate of rent of shop was fixed at the rate of Rs.700/- per month plus house tax and that rent was not paid w.e.f. 1.11.2003 and prayed for assessment of provisional rent and claimed house tax also. Accordingly, vide order dated 25.5.2007, the provisional rent at the rate of Rs.700/- per month was assessed at Rs.25,200/- for the period 1.11.2003 to 31.10.2006 and house tax of Rs.3696/-, interest of Rs.3696/- and cost of Rs.500/-. Thus, a total sum of Rs.33,092/- was assessed. However, the petitioner tendered the amount of Rs.10,800/- and cost of Rs.500/- and interest of Rs.1684/- ie. a total sum of Rs.12,964/-. The said tender was made under protest and the respondent-landlord also received the same under protest. Thereafter, the case was fixed for further consideration. Subsequently, on 24.3.2009, the landlord through his counsel made a statement in the Court to the effect that he had no objection if issue regarding short tender of rent was decided with the main petition and thereafter, the Rent Controller proceeded further. Vide order dated 25.11.2010, the Rent Controller held that the rate of rent of the demised shop was Rs.700/- per month plus house tax and therefore, taking into account the rate of rent to be Rs.700/- per month, the tender made on behalf of the petitioner was short and since the tenant has failed to pay the rent as assessed, he was liable to be evicted on this ground. Issue No.2 was also held in favour of the respondent- CR No.7571 of 2011 (O&M) 4 landlord observing that the acts of the petitioner had diminished the value and utility of the shop in question. Issue No.3 was decided against the respondent holding that the same was not proved. Issues No.4 and 5 were held against the petitioner holding that there was no sufficient evidence on record. Issues No.6 and 7 were also held against the petitioner as the same were not pressed. Resultantly, the eviction of the petitioner was ordered from the shop in dispute on the ground of non-payment of arrears of rent and that the petitioner by his acts had diminished the value and utility of the shop in question. The petitioner filed an appeal against the aforesaid order of the Rent Controller which was accepted partly reversing the findings on issue No.2 in favour of the petitioner-tenant. However, under issue No.1, it was held that since tender made by the petitioner-tenant was short, therefore, he was liable to be ejected from the shop in question and his appeal to the said extent was dismissed. Para 15 of the impugned judgment of the Appellate authority reads thus: “15. Now it is to be seen as to whether the appellant/tenant was still liable to be ejected from the disputed property even if rate of rent was proved to be Rs.300/- per month. It will be relevant to mention here that on appearance of the appellant/tenant before learned Rent Controller, the learned Rent Controller had proceeded for provisional assessment of rent and had assessed the provisional rent at the rate of Rs.700/- per month and also assessed house tax, interest and costs. The appellant/tenant had tendered the amount of arrears of rent at the rate of Rs.300/- per month, costs and interest and did not tender the house tax. A perusal of record of lower court file reveals that though at that stage, the respondent/landlord had prayed for striking off the defence of the appellant/tenant but the matter CR No.7571 of 2011 (O&M) 5 kept on being adjourned for consideration and then subsequently on 24.3.2009, the landlord through his counsel made a statement in the court to the effect that he had no objection if issue regarding tendering of less rent was decided with the main petition and at this statement, the learned Rent Controller had proceeded further. It is clear from the order dated 25.5.2007 that at the time of making provisional assessment, the learned Rent Controller had not only assessed the rent at the rate of Rs.700/- per month, he had also assessed house tax amounting to Rs.3696/- which had not been tendered by the tenant. In paras nos.2, 3 and 4(iii) of the petition, the petitioner/landlord categorically pleaded that the rate of rent as agreed to be paid by the respondent/tenant was Rs.700/- per month plus house tax. In the written statement filed by him, the appellant/tenant did not plead at all that the house tax was not payable by him. In fact there was no pleading in the written statement to this effect. The fact that the tenant did not controvert the plea as taken by the landlord in his petition to the effect that the house tax was also payable along with rent amounted to admission on the part of the tenant of the fact that he was also liable to pay the house tax of the disputed shop. In Smt. Gita Devi's case (supra), it was held that where was a stipulation between landlord and tenant and the tenant agreed to pay house tax imposed by Municipal Committee alongwith rent for the use and occupation of the demised building, such tax forms part of rent payable by the tenant and in the absence of the tender of the same, there is no legal or valid tender and tenant cannot escape the liability of the eviction. In view of this proposition of law, I am inclined to hold that since the tenant did not dispute the plea taken by the landlord in his petition in this regard, therefore, it is to be assumed that there is an agreement between the parties that the tenant will pay the house tax imposed by the Municipal CR No.7571 of 2011 (O&M) 6 Committee and as he did not tender the arrears of house tax which were provisionally assessed by learned Rent Controller, therefore, he had become liable to be ejected on this ground. At this juncture, it has been argued by learned counsel for the appellant/tenant that the learned Rent Controller could not directly pass an order of the ejectment of the appellant/tenant from the disputed shop and even if it arrived at the conclusion that the tender was short, opportunity must have been granted to the appellant/tenant to tender the arrears of house tax and therefore, he argued that on this ground alone, the impugned order was liable to be set aside. To fortify his argument, learned counsel for the appellant/tenant has placed reliance upon ratio of law as laid down in Ravi Ahuja's case (supra), Kausalya Rani (Dead) through LR's case (supra), Gian Singh's case (supra), Mehar Chand and another's case (supra) and Rakesh Wadhawan's case (supra). The ratio of law as laid down by Hon'ble Apex Court in Rakesh Wadhawan's case (supra), is that the rent controller has to assess arrears of rent, the interest on such arrears and the cost of application and the amount so assessed by rent controller is payable on the first date of hearing after the passing of such order. Failure of tenant to comply means an order of eviction and compliance means inquiry as to arrears of rent to continue. If final adjudication is at variance with interim or provisional order, then in case amount deposited by tenant is in excess, the same is to be refunded and if amount deposited by tenant is short or deficient , then conditional order of ejectment is to be passed that in case within a reasonable time the tenant does not deposit the same, he is liable for eviction. In case amount deposited by the tenant is deficient or short, then affording the tenant an opportunity of making good the deficiency is to be exercised by taking into consideration whether tenant has deposited regularly CR No.7571 of 2011 (O&M) 7 the rent due of month by month during the pendency of the proceedings. Applying the ratio of law as laid down by Hon'ble Apex Court, it is to be seen as to whether an opportunity was required to be granted to the tenant by the rent controller for the purpose of depositing the arrears of house tax which were part of rent or not. In the present case, learned rent controller assessed the arrears of rent at the rate of Rs.700/- per month and house tax at the rate of Rs.3696/-. The tenant tendered the arrears of rent as provisionally assessed by learned Rent Controller at the rate of Rs.300/- per month and did not tender the house tax at all by claiming that he was not liable to pay the same. As discussed above, he was also liable to pay the same. It is also well settled that when provisional rent is fixed and the tenant does not pay the same, the consequence of such non payment is to be decided by the rent controller while disposing of the main ejectment petition. In Mohan Lal's case (supra), which is an authority cited by learned counsel for the respondent, it was held by our own Hon'ble High Court that when once a tenant takes the risk of not paying the rent in terms of the order passed by learned Rent Controller, the ejectment of said tenant is bound to follow. The appellant did not express any desire at the time of passing of impugned order by learned Rent Controller to the effect that he was ready to pay the arrears of rent as provisionally assessed by learned rent controller. The appellant could not wriggle out of the consequences that followed from the order dated 25.5.2007 whereby the learned rent controller assessed the amount of arrears of rent and house tax. It was not difficult for the appellant to have tendered rent which was provisionally assessed by the rent controller. If he was confident that no house tax was payable by him even then he could have deposited the amount and could have contested the order of assessment to the extent that the house tax was not payable by him. CR No.7571 of 2011 (O&M) 8 However, he did not either plead in the written statement that no house tax was payable by him nor deposited the same in pursuance of order dated 25.5.2007 by learned rent controller. Therefore, he had become liable to be ejected. Undoubtedly, at the time of provisional assessment of rent, the learned rent controller did not pass an order of ejectment of the appellant when he did not tender rent at the rate as assessed by him and did not tender house tax, but the said fact does not come to the rescue of the appellant for the purpose of claiming that he was entitled to be afforded time and opportunity to make good the deficiency. As per the ratio of law as laid down in Rakesh Wadhawan's case (supra), such situation comes only when the tenant tenders rent at the rate which was provisionally assessed by the rent controller and had been paid by him. In such a situation, if final adjudication is at variance with interim or provisional order, then the rent controller could have been afforded opportunity to make up the deficiency. The ratio of law as laid down in the authorities cited by learned counsel for the appellant is also to be same effect. Moreover, in view of ratio of law as laid down in Rakesh Wadhawan's case (supra) opportunity to make up the deficiency is to be granted to the tenant in case amount of rent tendered by him is found to be deficient or short only by taking into consideration the fact that whether he had been depositing regularly the rent due of month by month during the pendency of the proceedings. The appellant in the present case has brought no material on record to show that he had been making regularly payment of rent due of month by month during the pendency of the rent petition filed by the respondent/landlord. Therefore, in my opinion, there is no force in the plea taken by the learned counsel for the appellant to the effect that opportunity should have been granted by learned rent controller to make up the deficiency of short tender at the time of final CR No.7571 of 2011 (O&M) 9 adjudication. With these observations, I hold that since the rent tendered by the appellant at the time of provisional assessment of the same by the learned rent controller was short, therefore, he took a risk of facing the ejectment by not paying the rent in terms of order passed by learned rent controller and as the tender made by him was short, he was rightly ordered to be ejected by the learned rent controller.” Aggrieved against the aforesaid order of allowing eviction of the petitioner from the demised premises under issue No.1 on the ground of non-payment of arrears of rent plus house tax, the instant revision petition has been filed before this Court by the tenant. Challenging the impugned orders/judgments of the Authorities below, learned counsel appearing on behalf of the petitioner has vehemently argued that the order of provisional assessment of rent was passed by the Rent Controller on the statements of the parties, which was tendered under protest and even was accepted by the landlord under protest and thus, the Authorities below erred at law while not granting an opportunity of 15 days. Therefore, the order dated 25.5.2007 of the Rent Controller assessing the provisional rent is defective. It has been further argued that the Rent Controller was supposed to grant 15 days' time to the tenant to tender the rent which would be considered as first date of hearing and then tenant was supposed to tender rent and in case the rent was not paid only then the consequence would be the order of ejectment in view of the non-payment of rent. Since, in the case in hand, no such opportunity to tender provisional rent was given, the impugned order is liable to be set aside. Learned counsel has relied upon para No.5 of judgment of this Court in Sqn.Ldr.Gurdial Singh etc. versus Narinderpal Singh CR No.7571 of 2011 (O&M) 10 etc.2009(2) HLR 49 which reads thus: “The procedure to be adopted by the Rent Controller while applying the provisions of Section 13(2) with the proviso under the East Punjab Rent Restriction Act, 1949 have been dealt with by the Hon'ble Supreme Court in Rakesh Wadhawan & Ors. Vs. Jagdamba Industrial Corporation and Ors., 2002 HRR 367 S.C. While adverting to the said provision, the Hon'ble Supreme Court said that the provision 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. The first date of hearing, the Hon'ble Supreme Court said would mean the date following the date of such assessment order by the Controller. If the amount deposited by the tenant is found to be deficient, the Hon'ble Supreme Court said that the Controller may pass a conditional 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 deposited amount, failing which alone he shall be liable to be evicted on this ground. This judgment clearly spells out the procedure which has not been followed by the learned Rent Controller. If the amount of Rs.2500/- deposited was made under protest and the landlord was receiving the same under protest, there was a duty on the Rent Controller to make a provisional assessment of rent and afford an opportunity to tender the rent at the next hearing which in law would be the first date of hearing and if only the amount had not been paid, the consequence of eviction would have followed. This consequence could be incorporated in the order of assessment itself by imposing the payment as a CR No.7571 of 2011 (O&M) 11 condition and the effect of failure of such payment. Since the Rent Controller has not adopted the procedure, the ground canvassed by the landlord to order the eviction on this ground cannot be attracted. The landlord's application was upheld in the Appellate Court on a different ground and the Courts below did not have the occasion to deal with this issue.” It is the further case of the petitioner that in case the landlord- respondent has made a statement that the question of short tender of rent is to be decided at the stage of final hearing, then variance in rent also mandates that tenant-petitioner should have been granted an opportunity to tender short rent in compliance of the directions 5 and 6 of the judgment of the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra) which read thus:- “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 possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficient amount, failing which alone he shall be liable to the 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 facts to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularly the rent falling due month by month during the pendency of the proceedings.” CR No.7571 of 2011 (O&M) 12 According to the learned counsel for the petitioner, in the present case, the Appellate Authority has set aside the findings of the Rent Controller that rate of rent was Rs.700/- per month and has held that the rate of rent of the demised premises was at the rate of Rs.300/- per month, so there is a variance in the assessment of the amount which mandates the opportunity for the tenant to tender the short rent in view of directions 5 and 6 of the concluding para 30 of the judgment. I have heard learned counsel for the petitioner and perused the impugned order/judgments and have also perused the judgments cited by the learned counsel for the petitioner. There is no dispute with the proposition of law as held by the Hon'ble Supreme Court in Rakesh Wadhawan's case (supra). However, it may be noticed at this stage that facts of the case in hand are entirely different. Herein the respondent-landlord had claimed the rent of the demised premises at the rate of Rs.700/- per month plus house tax whereas the petitioner had categorically taken a stand that the rate of rent was Rs.300/- per month and he was not liable to pay any house tax. Vide impugned order though the rate of rent has been held to be Rs.300/- per month, however, it has been further held that the petitioner was liable to pay house tax of the demised premises. In fact before this Court, counsel for the petitioner has not challenged the said findings of the authorities below that he was liable to pay the house tax of the demised premises. It may also be noticed that there is no dispute between the parties with regard to non-payment of arrears of rent and the period for which it was payable. The only dispute between the parties is with regard to payment of house tax. It may also be noticed that the petitioner has been ordered to be evicted, as despite provisional assessment of the house tax, he has not paid the same and has taken a definite stand disputing his liability to pay CR No.7571 of 2011 (O&M) 13 the same. Once