Case: Bishan Paul Vs. Mothu Ram

In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The tenant himself paid rent for 2 days to the Custodian and deposited rent for the use of the new landlord from October 3, 1956. His defence originally was that he had tendered the rent from October 3, 1956 and even sent it by money order but the landlord refused to receive it, He thus acknowledged the new landlord and attorned to him from October 3, 1956. It was only when the decision in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , was given that he changed his stand. That case, however, did not decide the precise point on which he rested his new defence. The rulings on which he relies also erroneously accepted the decision of this Court in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289 , to have decided the point when title commences. As has been rightly pointed out in Jaimals case, 66 Pun LR 99 (AIR 1964 Punj 99), the point was at large. In our judgment, the landlord in the present case could maintain the proceedings for ejectment. We agree generally with the observations of Tekchand, J. in Roshanlal Goswami v. Gobind Ram, 65 Pun LR 852 : (AIR 1963 Punj 532), that the landlords right to bring a suit for ejectment need not necessarily depend on the issuance of the certificate. In this case the landlord had paid the full price, his bid was approved and he had received a certificate mentioning the date of confirmation. In our judgment, he obtained title on the date of confirmation of the sale and could demind rent from that date as indeed he was informed and he himself understood to be the true state of affairs. 17. It remains to consider whether there ought to have been relief from forfeiture in this case. Here the difficulty in the way of the appellant is insuperable. Section 13 of the East Punjab Urban Rent Restriction Act provides inter alia : "13. Eviction of tenants. (1) * * * * (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied. (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable : Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. (ii) * * * * (iii) * * * * the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application. Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in aggregate. (underlined (here in ) by us) * * * * * * * * 18. It is contended that the section confers a discretion on the Controller which is indicated by the word "may" and by way of contrast the word "shall" used in the latter part of the same section is referred to. There is much force in this contention but the question is not res integra. This section was interpreted by this Court in Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215 ). In that case the tenant had admittedly not paid rent as required by S. 13(2) of the East Punjab Urban Rent Restriction Act as applied to Himachal Pradesh. The Rent Controller and the District Judge, on appeal, did not order eviction. The Judicial Commissioner was moved under Arts. 226 and 227 of the Constitution and he held that "in view of the admitted failure to pay rent as provided by the rent deed or at the first hearing of the Court under the proviso to S.13 (2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants". The Judicial Commissioner, therefore, set aside the orders of the Courts below and ordered ejectment. This Court observed : "As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment facted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by S. 13 (2) (i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so." The decision is binding us and as pointed out by Kapur, J. (as he then was) in 56 Pun LR 284: (AIR 1954 Punj 231), the ruling of this Court makes it incumbent on the Rent Controller to order eviction. In this view of the matter there is no relief possible to the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. It may be stated at once that there is no proof on record that the standard rent was tendered by money order by the appellant. The only money order receipts are Exs. R. 27 and R. 28 but they show tender of rent respectively for two months from January 24, 1957 and for four months from April to July, 1959. These receipts neither cover the period from October 3, 1956 nor from December 4, 1956Unfortunately, the Rules do not indicate clearly the point of time from which the title of the auction purchaser is to commence as is done by S. 65 of the Code of Civil Procedure. Neither side claims to apply the provisions of the Transfer of Property Act and the case was argued on the basis of the Rules to determine the time from which title can be said to commence11. This fiction cannot apply here for the simple reason that no such provision is made in the rules8. The rules which we have earlier reproduced show that the auction is held on a date fixed and is subject to a reserve price which is confidential. The officer conducting the sale declares at the fall of hammer who is the highest bidder. The highest bid is subject to the approval of the Settlement Commissioner or an officer appointed by him. A period of seven days must elapse before the bid is approved and there is also a limitation of seven days from the acceptance of the bid for making an application to set aside the sale. If the bid is approved and if no application meanwhile for setting aside the sale is made, the highest bidder is recognised as the auction purchaser and he is required to produce a treasury challan in respect of the balance of the purchase money within a period of fifteen days (which period may be extended without limit of time) before the Settlement Commissioner or the Officer appointed by him. When the full purchase price is paid a Certificate issues in Form No. XXII and is sent to ther for registration. If the balance of the price is not paid, the amount of advance in deposit is forfeited and the auction purchaser has no claim to the property16. It seems to us that the matter must be considered on general principles. In this case the highest bid was of the respondent and he paid the full price before the sale in his favour was confirmed. The sale certificate, though issued later, mentioned the date of the confirmation of the sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate reproduced in Jaimals case, 66 Pun LR 99 : (AIR 1964 Punj 99). No doubt till the price is paid in full there is no claim to the property, but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The tenant himself paid rent for 2 days to the Custodian and deposited rent for the use of the new landlord from October 3, 1956. His defence originally was that he had tendered the rent from October 3, 1956 and even sent it by money order but the landlord refused to receive it, He thus acknowledged the new landlord and attorned to him from October 3, 1956. It was only when the decision in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289  , was given that he changed his stand. That case, however, did not decide the precise point on which he rested his new defence. The rulings on which he relies also erroneously accepted the decision of this Court in the Bombay Salt and Chemical Industries case, AIR 1958 SC 289  , to have decided the point when title commences. As has been rightly pointed out in Jaimals case, 66 Pun LR 99 (AIR 1964 Punj 99), the point was at large. In our judgment, the landlord in the present case could maintain the proceedings for ejectment. We agree generally with the observations of Tekchand, J. in Roshanlal Goswami v. Gobind Ram, 65 Pun LR 852 : (AIR 1963 Punj 532), that the landlords right to bring a suit for ejectment need not necessarily depend on the issuance of the certificate. In this case the landlord had paid the full price, his bid was approved and he had received a certificate mentioning the date of confirmation. In our judgment, he obtained title on the date of confirmation of the sale and could demind rent from that date as indeed he was informed and he himself understood to be the true state of affairsThere is much force in this contention but the question is not res integra. This section was interpreted by this Court in Waryam Singh v. Amarnath, 1954 SCR 565   : (AIR 1954 SC 215  ). In that case the tenant had admittedly not paid rent as required by S. 13(2) of the East Punjab Urban Rent Restriction Act as applied to Himachal Pradesh. The Rent Controller and the District Judge, on appeal, did not order eviction. The Judicial Commissioner was moved under Arts. 226 and 227 of the Constitution and he held that "in view of the admitted failure to pay rent as provided by the rent deed or at the first hearing of the Court under the proviso to S.13 (2) (i) the Courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants"The decision is binding us and as pointed out by Kapur, J. (as he then was) in 56 Pun LR 284: (AIR 1954 Punj 231), the ruling of this Court makes it incumbent on the Rent Controller to order eviction. In this view of the matter there is no relief possible to the appellant.