Case: Dalip Kaur Brar Vs. M/S. Guru Granth Sahib Sewa Mission (Regd.)

3. On 1 June 2005 a lease was executed by the appellant by which a residential property, bearing House No. 2535 in Sector 35-C at Chandigarh, was let out to the respondents. The term of the lease was three years commencing on 1 June 2005, to end on 31 October 2008. The rent agreed was Rupees 25,000 for an initial period of one year which was to be enhanced to Rupees 28,000 commencing from 1 June 2006 for the remainder of the term.4. On 8 November 2006, the appellant filed an ejectment application under Section 13 of the Act on the ground that : (i) the respondents failed to pay the rent from 1 November 2005 to 31 May 2006 at the agreed rate of Rupees 25,000 per month and with effect from 1 June 2006 at the rate of Rupees 28,000 per month, and the cheques which were issued were dishonoured; (ii) the premises have been kept locked and were not being used for sufficient reason since December 2005.5. The respondents contested the ground of default by claiming that they had paid an advance of six months rent and hence no arrears were due.6. The Rent Controller by an order dated 14 November 2007 made a provisional assessment of rent and directed the respondents to deposit an amount of Rupees 19,000 per month with effect from 1 June 2005 together with interest at the rate of 6 per cent per annum and costs quantified at Rupees 500. The order of the Rent Controller fixed the proceedings on 14 December 2007 for payment or tender of the rent as provisionally assessed.7. On 14 December 2007 the respondents filed an application for review on the ground that though the appellant had claimed rent with effect from 1 November 2005 the direction for deposit was with effect from 1 June 2005. The fact that the respondents were in arrears appears not to have been in dispute for even in the application for review the prayer was in the following termsis, therefore, respectfully prayed that the order dated 14.11.2007 may kindly be reviewed and set aside and the Respondent, be allowed to tender the rent from 01.03.2007 to 14.11.2007, in the interest ofrespondents failed to comply with the order of provisional assessment.8. Since the respondents failed to comply with the order by which provisional rent was determined together with interest and costs, the Rent Controller passed an order of eviction on 14 December 2007. The respondents filed an appeal against the order. On 7 January 2008 a conditional stay was granted by the District and Sessions Judge, Chandigarh, acting as the appellate authority, by which the order of eviction was stayed subject to the deposit of rent within a period of one month before the Rent Controller and the continued deposit of the monthly rent by the seventh day of every succeeding month. The respondents failed to comply with the conditions subject to which stay was granted. Instead, they filed on 7 February 2008 an application for modifying the order dated 7 January 2008. On 11 February 2008, the respondents filed an application for extension of time. The appellate court by its order dated 18 February 2008 dismissed the applications for modification and for extension of time.9. The first round of proceedings before the High Court was then initiated by the respondents by instituting a civil revision application (RA 1948 of 2008)in which they sought to challenge the order of eviction dated 14 December 2007, the order granting conditional stay dated 7 January 2008 and the order of the appellate court dated 18 February 2008 dismissing the application for modification and extension of time. A learned Single Judge of the High Court by an order dated 31 March 2008 dismissed the civil revision.10. The appellant thereupon filed an application before the Rent Controller for executing the order of eviction dated 14 December 2008. On 3 June 2008 the Rent Controller issued a warrant of possession. The appellate court declined to stay execution on 14 June 2008. This led to a second round of proceedings before the High Court in the form of a Civil Revision Application (RA No. 3922 of 2008) by which the respondents challenged the order of the Rent Controller dated 14 November 2007 making a provisional determination of the rent, the order of eviction dated 14 December 2007 and the order dated 14 June 2008 of the appellate authority declining to stay the execution proceedings.11. A learned Single Judge of the High Court dismissed the Civil Revision on 14 June 2008 though by then, the respondents claim to have deposited an amount of Rupees 6.50 lakhs towards the arrears of rent. The High Court held that on 31 March 2008 it had already dismissed the civil revision against the interim order passed by the appellate authority and hence a fresh application was barred. Moreover, the High Court noted that a substantive appeal against the order of eviction was pending before the appellate authority. The appellate authority was directed to dispose of the appeal expeditiously, by 28 February 2009.12. A Special Leave Petition was filed before this Court against the order of the High Court dismissing the Civil Revision. During the pendency of the special leave petition the appellate authority dismissed the appeal against the order of eviction on 25 February 2009. The respondents failed to comply with the order passed by this Court for depositing the entire arrears within two months. Eventually, the special leave petition was dismissed on 2 April 2012 and an interim order passed by this Court earlier was vacated.13. Thereafter a third round of proceedings was initiated before the High Court in the form of a Civil Revision Application (RA No. 3202 of 2009) in which the order of eviction and the order of the appellate authority dismissing the appeal of the respondents was questioned. The High Court by its judgment and order dated 29 April 2015 has allowed the civil revision and set aside the order of eviction. The High Court has principally relied on the fact that by the provisional order of assessment the Rent Controller had directed the respondents to deposit rent with effect from 1 June 2005 though the tenant was alleged to have been in default with effect from 1 November 2005. Since the order of provisional assessment has been held to be flawed on this ground, the consequential order of eviction has been held to be contrary to law. However, the proceedings have now been remanded for consideration of the ground of non-use on which a decree for eviction has also been sought. The judgment of the High Court is called into question in these proceedings.

Reasoning:
19. Hence the position is that the tenant must pay or tender the rent within 15 days of the expiry of the time fixed in the agreement of tenancy or in the absence thereof "by the last date of the month next following that for which the rent is payable". If the tenant fails to do so, the Rent Controller upon being moved by the landlord is empowered to order the eviction of the tenant. This consequence is however obviated upon compliance with the terms of the proviso. Before a tenant can claim the benefit of the proviso, it is necessary that its terms must be observed. Where the tenant upon an assessment being made by the Rent Controller has on the first hearing of the application for eviction paid or tendered the arrears of rent together with interest and costs as assessed by the Controller, by a deeming fiction of law, the tenant would be treated to have duly paid or tendered the rent within the period as stipulated in the statutory provision. In order to seek the benefit of the proviso, there has to be first an assessment by the controller; second, the payment or tendering of the rent, interest and costs by the tenant in terms of the order of the Rent Controller and third, such payment or tender must be on the first hearing of the application for ejectment. But for the proviso, a tenant in default would be liable to suffer an order of eviction for default in paying rent. The proviso makes a concession but conditions the benefit of the concession granted to the tenant subject to compliance with its conditions. If the tenant complies with the conditions, the deeming fiction comes into existence. If the tenant fails to fulfil the conditions, the Rent Controller will be empowered to order eviction. To protect himself against suffering the consequence of eviction, the tenant has no option but to tender or pay the rent, interest and costs assessed by the Rent Controller on the first hearing of the application for ejectment. If he fails to do so, the tenant will not have the benefit of the deeming fiction by which the consequence of a default in payment is obviated.One line of interpretation for construing the provisions of Section 13 is that which has been suggested on behalf of the respondents. According to this interpretation (which seeks to draw sustenance from the observations in Harjit Singh Uppal (supra)), the tenant would be at liberty to ignore the order of provisional assessment passed by the Rent Controller and upon the passing of an order of eviction for non-compliance, to pursue the remedy of an appeal under Section 15(1) (b). According to this line of interpretation, in the appeal under Section 15(1)(b) the tenant may demonstrate that the order of provisional assessment was erroneous and as a consequence thereof, the order of eviction must fail. The issue is whether such an interpretation must be adopted invariably in all cases. In our view, the interpretation of the provisions of Section 13 must bring about a just balance between the rights of the tenant and those of the landlord. On the one hand, there is a need for protecting the tenant against being subjected to a disproportionate demand by the landlord and of suffering in consequence, an unjust decree of eviction. On the other hand there is a need to protect the landlord against the tactics which a recalcitrant tenant may adopt by deploying every gambit in the rule book to defeat the just claims of the landlord to the payment of rent. The judgment rendered by this Court in Wadhawan (supra) and reaffirmed by a Bench of three Judges in Vinod Kumar (supra) brings about a just balance by interposing the function of the Rent Controller who determines on a provisional basis the arrears of rent, interest and costs. This determination ensures on the one hand that while the tenant is protected against an unjust demand by the landlord, the landlord in turn is not deprived of the just dues owing on account of the use and occupation of the property by the tenant. Upon a provisional determination being made by the Rent Controller, the tenant must deposit the amount of the demand, on the first hearing of the application for ejectment. What needs to be kept in mind is, that the proviso under 13(2) (i) is a concession, and also, that it is based on a provisional "assessment". A tenant admitting to be in arrears of rent, within the parameters provided for under Section 13(2)(i), is liable to eviction forthwith. To avail of the concession, the provisional "assessment", must be complied with. If the tenant does so the payment is deemed to have been made within time. If the tenant fails to do that, the Rent Controller is empowered to pass a decree for eviction. The manner in which a wrongful provisional "assessment" will be remedied have been laid down in Wadhawan and Vinod Kumar (supra). The tenant upon complying with the order of the Rent Controller is not left without a remedy. When the Rent Controller subsequently makes a final determination of the rent payable, if it is found that the tenant has paid an amount in excess, the Rent Controller can issue directions for refund or adjustment, as the case may be. A tenant who complies with an order of provisional assessment by the Rent Controller is to be protected against eviction. At the same time, the tenant is entitled to pursue the challenge to the assessment made by the Rent Controller. A tenant who fails to observe the order of provisional assessment will not be protected against an order of eviction. That will, however, not deprive the tenant of a right of appeal, as held in Harjit Singh Uppal (supra).28. The dispute which the tenant seeks to raise in regard to the rent which is payable may straddle several aspects. There may be a dispute of the rate of rent. The period over which the rent has not been paid may be in dispute. Where the tenant has admitted that the rent is due and payable at least for a certain period, it is necessary that the Court should adopt an interpretation which does not permit the tenant to defeat the just claim of the landlord. The present case is an object example of such a situation. The lease agreement between the parties provided for a rent of Rupees 25,000 for the first year of the lease ending on 31 May 2006, and which was to stand enhanced to Rupees 28,000 for the remaining two years. The Rent Controller directed the tenant to deposit only an amount of Rupees 19,000 (representing the component of the basic rent for the first year, the remaining amount of Rupees 6,000 being towards furniture and fixtures). After the Rent Controller made his provisional determination on 14 November 2007 the tenant sought to dispute essentially that part of the determination by which the Rent Controller had fixed the amount due and payable from 1 June 2005. The prayers made by the tenant in the review petition would indicate that even according to the tenant, rent was due and payable at least for the duration which was referred to therein. The tenant was granted, in the appeal filed against the order of eviction, a conditional stay requiring the tenant to deposit the arrears and to continue to pay the rent for the subsequent period on a monthly basis. The tenant failed to comply with this order. An application for modification and for extension of time was moved which was rejected by the appellate Court. The civil revision against the order of rejection was also dismissed by the High Court. The appellant has provided in the special leave petition a table setting out the cheques that were issued by the respondents in favour of the appellant both towards the rent and towards furniture and fixtures which were dishonoured.In these circumstances when either the petitioners are unable to pay the rent due to lack of funds or they deliberately dont want to pay the same, no case to interfere with the impugned orders in exercise of the revisional jurisdiction of this Court is madefacts before the Court leave no manner of doubt that there was a stubborn and steadfast unwillingness on the part of the tenant to comply with the order passed by the Rent Controller even to the extent of non-deposit of rent for the period for which it was admittedly due and payable. The tenant even went to the extent of claiming that a direction could have only been issued for the deposit of the arrears and not for the payment of the rent for subsequent months as directed by the appellate court as a condition for the grant of stay. Accepting the line of interpretation which has been suggested by the respondents would lead to a situation where, though the rate of rent is not in dispute and the tenant admits that rent is due and payable for a certain duration of time (while disputing the quantum of arrears) the landlord in pursuance of a determination made on a provisional basis by the Rent Controller would be deprived of the rent due and payable, while the tenant takes a chance of being able to demonstrate in the course of an appeal against the order of eviction that the initial determination for a certain part of the period was not payable. In our view such an interpretation would defeat the object and purpose of Section 13 and the rationale for the decision of this Court in Wadhawan (supra) which has brought about a balance between the rights of the landlord and the tenant. If the respondents intended to dispute the claim of arrears for a specified period, there was no reason or justification for them not to deposit the rent. It needs to be kept in mind, that the legislative concession, extended to tenants through the proviso under Section 13(2)(i), is available conditionally. To be entitled to be saved against eviction, the tenant must satisfy the conditions laid down. To understand the words "assessed by the Rent Controller", as "correctly assessed", would not be proper. Arrears payable by a tenant, would be correctly assessed only after evidence is recorded and concluded. The instant assessment is clearly provisional. It is made, even before evidence has commenced to be recorded. Therefore, it would be improper to understand and extend to such assessment, any further meaning. Every kind of excuse was made by the tenant for not paying the rent due and payable. As we have set out earlier the cheques that were issued to the appellant were dishonoured. In this view of the matter, the tenant cannot have the benefit of the observations contained in the judgment of this Court in Harjit Singh Uppal (supra) for the simple reason that they would not come to the aid of a tenant who has not deposited even the admitted dues in pursuance of the determination which has been made by the Rent Controller, even though the proviso extends the concession, only to tenants who have complied. The High Court while determining whether the provisional determination of the Rent Controller was correct or otherwise could not have ignored the position that while the rent payable was Rupees 25,000 per month till 31 May 2006 and Rupees 28,000 per month from 1 June 2006, the Rent Controller had directed a deposit only of Rupees 19,000 per month. The Respondents deposited nothing within the period fixed and a deposit made in May 2008 would not enure to their benefit.29. For these reasons, we are of the view that the High Court fell into error in allowing the revision application against the judgment and order of the appellate authority and in setting aside the order of eviction. The Civil Revision filed by the respondents was liable to be dismissed and we order accordingly.