IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4754 of 2007 Date of decision: 15th December, 2008 Ashok Kumar … Petitioner Versus Malkiat Kaur … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.S. Dhandi, Advocate for the petitioner. Mr. J.S. Ahluwalia, Advocate for respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Malkiat Kaur landlady had filed eviction petition on two grounds. Firstly, it was stated that the tenant is in arrears of rent w.e.f. 1st December, 1983 and the rate of rent is Rs.800/- per month. Secondly, it was stated that the building has become unfit and unsafe for human habitation. Tenant appeared and filed written statement, in which he stated that the landlady had entered into an agreement and had borrowed Rs.25,000/- as advance, vide writing dated 2nd November, 1992 and the amount of rent was to be adjusted as interest towards the amount of Rs.25,000/- borrowed by the landlady. Rent Controller and the Appellate Authority held that tenant had only produced (Ex.R-1 and R-2), photocopies of the agreements. No evidence has been led to prove these agreements. Therefore, they are to be ruled out of consideration. Rent Controller further held that no ground is Civil Revision No.4754 of 2007 made out to say that building has become unfit and unsafe for human habitation. Controversy in the present case revolves around narrow compass. Once, the agreements were not proved and it was held that there was no agreement and no amount was borrowed by the landlady, whether tenant can be evicted on the ground of non-payment of rent or not. Two courts below have held that in the present case, no amount was tendered, therefore it is not a case of short tender. For the non-payment of rent, tenant is liable to be evicted. Mr. H.S. Dhandi appearing for the tenant has placed reliance upon ‘Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation’, 2002 (1) RCR (Rent) 514 (SC), to say that para 29 envisages that opportunity should be given to the tenant to make the payment of arrears of rent. Relevant portion of judgment rendered in Rakesh Wadhawan’s case (supra) reads as under: “29. The result of the discussion may be summarized. Under proviso to Section 13(2)(i), the Controller having 'discharged his obligation of passing an order under the proviso, either suo moto or on his attention in this regard being invited by either of the parties, it will be for the tenant to pay or tender the amount provisionally assessed by the Controller on the first date of hearing of the application for ejectment. On compliance, the Controller would proceed to adjudicate upon the controversy arising for decision by reference to pleadings of the parties and by holding a summary enquiry for the purpose. Such adjudication shall be provisional and subject to the later final adjudication. The finding that may ultimately be arrived at by the Controller may be one of the following three. The Controller may hold that the quantum of arrears as determined finally is (i) the same as was found to be due and payable under the provisional order, (ii) is less than what was 2 Civil Revision No.4754 of 2007 determined by the provisional order, or (iii) is more than the one what was held to be due and payable by the provisional order. In the first case the Rent Controller has simply to pass an order terminating the proceedings. In the second case the Controller may direct the amount deposited in excess by the tenant to be refunded to him. In the third case it would not serve the purpose of the Act if the tenant was held liable to be evicted forthwith as is the view taken by the Punjab High Court in the case of Dial Chand (supra). The Controller directing the eviction of the tenant may pass a conditional order affording the tenant one opportunity of and a reasonable time for depositing the amount of deficit failing which he shall be liable to be evicted. This power in the Rent Controller can be spelled out from the use of the word "may" in the expression "The Controller may make an order directing the tenant to put the landlord in possession", as also from the principle of equity and fair play that the tenant having complied with provisional order passed by the Controller should not be made to suffer if the finding arrived at by the Controller at the termination of the proceedings be different from the one recorded in the provisional order. While exercising the discretion to make a conditional order of eviction affording the tenant an opportunity of purging himself of the default the Controller may also take into consideration the conduct of the tenant whether he has even after the passing of the provisional order continued to pay or tender the rent to the landlord during the pendency of the proceedings as a relevant factor governing the exercise of his discretion. Such a course would be beneficial to the landlord too as he would be saved from the trouble of filing a civil suit for recovery of rent which fell due during the pendency of proceedings for eviction before the Controller.” Thus, it is apparent that it is not a case, where there is deficiency in the amount of rent paid and the same can be made good. In the present case, a false plea was raised by the tenant and photocopies of 3 Civil Revision No.4754 of 2007 two agreements were sought to be projected, to say that landlord had borrowed the amount and accrual of interest was to be adjusted towards rent. This fact he failed to prove. Therefore, there is no payment of rent. Hence, two courts below have rightly held that he is liable to be evicted. There is no merit in the present revision petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE December 15, 2008 rps 4