IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2513 of 2009 Date of decision:11.05.2009 Ashok Kumar Gulati ...Petitioner versus K.K.Dhir ...Respondent CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.Baljeet Singh, 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. K.Kannan, J. 1. The revision is against an order issuing summary ejectment for failure of the tenant to pay or deposit the provisional rent as determined by the Rent Controller. 2. By an order dated 06.08.2007, the Rent Controller upheld the contention of the tenant that even the non-payment of rent could not result in eviction without giving an opportunity to “convert the rent assessed by this Court (Rent Controller) after sending the case for trial” (sic). The Rent Controller had made reference to a decision of this Court in Rajinder Lal versus Gopal Krishan-(2006-2) PLR 124, as laying down a proposition that even the failure to deposit the provisional rent would not entail passing of eviction order and that such an order Civil Revision No.2513 of 2009 - 2 - could be passed only after the conclusion of the trial after giving opportunities for hearing to the parties as required under Section 13(2) of the Act. 3. Against this decision, the landlord had come on revision to this Court in Civil Revision No.4807 of 2007. The learned Judge recorded the statement on behalf of the tenant that the tenant shall make a specific statement with regard to tender of unpaid rent. After the matter was remitted to the Rent Controller, the tenant made a statement that he was not ready to pay the amount assessed by the Rent Controller, as nothing was due against him and that he would pay the same only after the final decision was made in the petition finding, if at all, he was liable to pay the rent. The Rent Controller found the statement to be contrary to the undertaking given by the tenant before the High Court, and while applying the law laid down by Rakesh Wadhawan and others Versus M/s Jagdamba Industrial Corporation and others-AIR 2002 SC 2004, the Rent Controller found that the defendant had not tendered the assessed rent on the date fixed for the same and hence it had no option but to pass an order of ejectment against him. This order was challenged in appeal to the Appellate Authority who confirmed the same line of reasoning by pointing out that by the original order dated 08.05.2007, the tenant had been directed to make the provisional rent of Rs.2,81,732/- and since the amount had not been paid or deposited, it confirmed the decision of the Rent Controller ordering eviction. Civil Revision No.2513 of 2009 - 3 - 4. The learned counsel for the petitioner states that he was still ready and willing to pay the amount if there was a direction from the Court to make the payment. It is futile of the revision-petitioner to make such plea before this Court when the tenant was at all times bound to pay at the first hearing after the provisional rent had been determined. No further direction was necessary. A provisional rent is invariably rent that is not final but an amount which the tenant is bound to pay awaiting the conclusion of trial. The duty to pay to the landlord any amount found as payable is fundamental and exception could be made only if the order is modified in appeal or revision. The quantum of rent that is payable is determined by the order fixing the provisional rent and the question whether the tenant is entitled to any refund in case of excess payment or whether the tenant is liable to pay any additional amount if the amount tendered on the basis of provisional rent was less than the actual rent found payable on final adjudication are all matters that would fall for consideration in the final disposition by the Rent Controller. 5. The privilege of a tenant's entitlement to obtain a refund or a duty to pay an excess amount will arise only in cases where the tenant had paid the provisional rent without demur. That liability arose soon after the determination of provisional rent in the first instance but the tenant allowed himself a reprieve by inviting the Court to pass an order dated 06.08.2007 that the landlord cannot obtain summary eviction for non-payment of assessed rent. The order did not remain as it was and it was modified by the High Court in Civil Revision No.4807 of 2007 Civil Revision No.2513 of 2009 - 4 - when the High Court had directed the tenant to give an undertaking regarding tender of unpaid rent. In effect, the Court was actually giving him an opportunity to tender the unpaid rent. There was no merit in the contention of the tenant that such provisional rent would be tendered only at the conclusion of the trial. Such an offer makes meaningless the expression 'provisional rent'. If the rent could be paid only on the conclusion of the trial, there is no need for determination of a provisional rent at all. The decision of this Court in Rajinder Lal versus Gopal Krishan (supra) must be understood only in the context of Rakesh Wadhawan and others (supra). The Hon'ble Supreme Court's decision is specific that the duty to pay the provisional rent arises at the first hearing immediately after the amount is determined. The Hon'ble Supreme Court had also observed in the same judgment of what would happen if on a final adjudication, the rent found as payable was either in excess of the provisional rent or less than the provisional rent or same as the provisional rent. The final determination would arise only to assist a tenant who had abided by the order of the provisional determination of rent. So long as the order determining the provisional rent itself was not challenged the defiance before the Rent Controller not to pay the amount is is not tenable. The challenge must be made either by way of appeal or revision and cannot be done to the very same Court as it was done in this case. The Rent Controller himself has no power to recall his order determining the provisional rent and defeat the consequence of non-payment of provisional rent by a brazen defiance of a tenant that he Civil Revision No.2513 of 2009 - 5 - would not tender the rent till after the conclusion of proceedings after the full fledged trial. 6. The construction sought to be made on the decision of this Court in Rajinder Lal versus Gopal Krishan (supra) is clearly misconceived. There, this Court was dealing with the situation where the tenant was actually tendering the rent by deposit but that deposit was under a protest with right of counter claim after depositing the rent. The tenant applied for recall of the order determining the provisional rent on the ground that such determination was made without any enquiry and even before the defendant filed any written statement. The Rent Controller refused to recall the order and directed eviction. It was this order which was challenged in appeal and still later in revision. In a case where the tenant was depositing the provisional rent but still contending that the assessment had been made without any enquiry or even before the statement and seeking for recall of the order cannot be in the same position as the tenant who defied paying the provisional rent and insisted that he would pay the amount only after the conclusion of proceedings. 7. The case at hand had no similar situation as obtained in Rajinder Lal versus Gopal Krishan (supra). In any event, the decision of this Court in Rajinder Lal versus Gopal Krishan (supra) must be so read as to conform to the decision of Hon'ble the Supreme Court in Rakesh Wadhawan and others (supra) as it constitutes a binding precedent to all Courts in India including the Rent Controller and this Court. The decision in Rajinder Lal versus Gopal Krishan's case itself was indeed following the decision of Hon'ble the Supreme Civil Revision No.2513 of 2009 - 6 - Court in Rakesh Wadhawan's case and the interpretation must be so made as not to be inconsistent to the clear meaning that the decision of Hon'ble the Supreme Court's case carried and particularly, with reference to the consequence of non-payment of rent at the first hearing after the provisional rent is fixed. There is no merit in the Civil Revision and the prayer of the tenant seeking for further opportunity to deposit the rent does not arise. 8. The Civil Revision is consequently dismissed. (K.KANNAN) JUDGE 11.05.2009 sanjeev