Madan Lal And Another Petitioners v. Baldev Raj

M.M Kumar, J. — This is tenants' petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, ‘the Act’) challenging concurrent findings of facts recorded by both the Courts below holding that the tenant-petitioners have failed to make payment of rent as assessed by the Rent Controller vide his order dated 5.5.2003 and consequently their ejectment was ordered. Both the Courts have found that the tenants were liable to pay rent from 1.1.1993 till the date of assessment order i.e 5.5.2003 The observations made by the Supreme Court in Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others, AIR 2002 SC 2004 : 2002 (1) RCR (Rent) 514 (SC) have been followed because the tenant-petitioners have failed to comply with the provisional order of assessment dated 5.5.2003

2. Brief facts of the case necessary for disposal of the instant petition are that the landlord-respondent filed an ejectment petition on 28.11.2002 under Section 13 of the Act seeking ejectment of the tenant-petitioners inter alia on the ground that the tenant-petitioners had taken the demised premises on rent on 1.8.1993 on an agreed rate of Rs. 600/- p.m along with house tax at the rate of 10 per cent. He claimed arrears of rent w.e.f 1.4.1993 and sought ejectment on that ground. The tenant-petitioners contested the claim made by the landlord-respondent and asserted that they have been paying rent regularly without fail and the rent was paid upto August, 2002. The learned Rent Controller vide his order dated 5.5.2003 made assessment of the provisional rent at the rate of Rs. 600/- p.m from 1.1.1993 to 31.5.2003 and directed the tenant-petitioners to pay the arrears. Order dated 5.5.2003 reads as under :—

“Consideration for the purpose of assessing rate of rent is heard. On going through the pleadings as well as of argument of counsel for the parties, it is clear that there is no dispute over the rate of rent Rs. 600/- per month. Rent has been claimed w.e.f 1.1.1993 In reply it has been submitted that in fact rent stood paid and no receipt has been issued by the landlord. This fact has been categorically denied by the petitioner. It is settled principle of law the payment of rent is to be proved by the tenant. At this stage, there is no document or proof of rent. In the circumstances, it is provisionally the rate of rent is Rs. 600/- per month is due from 1.1.93 The interest will be payable at the rate of 6% per annum with Rs. 500/- as costs assessed in the presence of both counsel for the parties and it is found that from 1.1.93 to 31.5.2003 @ Rs. 600/- as arrears of rent with interest as Rs. 23,438/- and adding Rs. 500/-, we find total provisionally due amount against respondent is Rs. 98,938/-. Now to come upon 5.6.2003 for payment.”

3. On 5.6.2003 instead of making payment of the aforesaid amount, the tenant-petitioners moved an application for recalling the order dated 5.5.2003 Reply to the application was filed and on 23.12.2003, the application for recalling the order dated 5.5.2003 filed by the tenant-petitioners was dismissed. By a separate order the Rent Controller also allowed the petition of the landlord-respondent and ordered ejectment of the tenant-petitioners. The tenant-petitioners were directed to vacate the demised premises and hand over its vacant possession to the landlord-respondent within three months from the order i.e 23.12.2003 Aggrieved against the aforementioned order, the tenant-petitioners filed an appeal before the Appellate Authority which upheld the view taken by the Rent Controller by placing heavy reliance on a judgment of the Supreme Court in the case of Rakesh Wadhawan (supra). Referring to the observations of the Supreme Court made in Vinod Kumar's case (infra), Rubber House's case (infra) and Rajinder Kumar Joshi's case (infra), the Appellate Authority observed as under :—

“Such like eventualities were taken into account by their Lordships of the Hon'ble Supreme Court of India while deciding the case Vinod Kumar v. Prem Lata., 2003 (2) RCR (Rent) 329 (SC). It was observed by the Hon'ble Supreme Court of India having discussed the citation Rubber House v. Excelsior Needle Industries (P) Ltd.., 1989 (2) SCC 413 : 1989 (2) RCR (Rent) 530 (SC) and Rajinder Kumar Joshi v. Veena Rani, 1990 (4) SCC 526 : 1990 (2) RCR (Rent) 573 (SC) : The Court felt the need for striking a balance between the two situation so as not to render the protection given by the Act to the tenant illusory, and at the same time not to deprive the landlord of his minimum legitimate expectation to be paid regularly the rent for the use and occupation of his premises. The solution which the Court provided was in the background of the facts of that case, and is hence a limited one. The Court said that if the rate of rent is not fixed or becomes the subject matter of dispute, the tenant may have resort to Section 4 of the Act and apply to the Controller to fix the fair rent failing which he must deposit the rent at the rate as demanded by the landlord. If there is any dispute as to the period of default, the tenant may deposit the rent which he thinks to be in arrears, but he must take the risk for doing so, it is proved ultimately that the rent paid or tendered by him was less than what was due, he must face eviction. Such an interpretation gives an uncertainty to the litigation and does not take care of several situations which may emerge in a litigation other than the one as arose in that case before the Court.”

4. The argument based on Roshan Lal's case (infra) that the Court could extend the time for making payment of rent was also rejected by observing as under :—

“As regards the contention raised by the learned counsel for the appellants that his clients are still ready to tender the rent in terms of the order dated 5.5.2003 and that the appellate court is empowered to extend the time in this regard, as per the citation Roshan Lal v. Ashok Kumar, 1995 (2) RLR 57 : 1995 (1) RCR (Rent) 611 (P&H), no such request was made by the appellants in writing either to the learned Rent Controller or this court so as to show their bona fide request explaining the circumstances as to why earlier the rent could not be tendered on the next date of hearing that is on 5.6.03, in the absence of which the request made by the learned counsel for the appellant cannot be accepted which is bound to prejudice the right of the landlord having accrued because of the impugned order, in the passing of which no illegality has occurred. The order can be said to have been passed strictly in accordance with the guidelines laid down by the Hon'ble Supreme Court of India in the case of the citation Rakesh Wadhawan v. Jagdamba Industrial Corporation (supra). Consequently there does not appear any merit in the appeal and the same is here dismissed.”

5. It was further held that the tenant-petitioners could not take advantage of their own wrong and were bound by the order dated 5.5.2003 The observations of the Appellate Authority in this regard read as under :—

“The appellants cannot take any advantage from the fact that the learned Rent Controller made a wrong assessment of the rent due and consequently the interest having accrued thereon because once the order was passed either the appellants should have challenged the same or they should have tendered the rent assessed due as also the interest calculated thereon alongwith the costs on the next date of hearing but they had the intention of prolonging the matter for the reasons best known to them.

The proposition of law having been settled by their Lordships of the Hon'ble Supreme Court of India in case Rakesh Wadhawan v. Jagdamba Industrial Corporation (supra) the appellants cannot wriggle out of the consequence that follow from the order dated 5.5.2003, whereby the learned Rent Controller assessed the amount of the arrears of rent alongwith interest. It was not difficult for the appellant Madan Lal to have tendered the rent which actually had fallen due on the date of the filing of the ejectment petition and he could certainly satisfy the learned Rent Controller that the rent due on the date of the filing of the ejectment petition was for the period 1.1.193 to November, 2002 but the appellant Madan Lal had no intention in tendering the rent which had fallen due on the date of the filing of the petition or the one which was assessed by the learned Rent Controller.”

6. Mr. Arun Palli, learned counsel for the tenant-petitioners has argued that the order of assessment dated 5.5.2003 suffers from an inherent defect as no assessment could have been framed for the period December, 2002 to May, 2003. According to the learned counsel, once this order is found to be illegal, then the benefit of the provisions of Section 148 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’) should have been accorded to the tenant-petitioners by extending the time to make the payment after modifying the order of assessment. Learned counsel has placed reliance on a judgment of this Court in Roshan Lal's case (supra) and argued that even the Appellate Authority could have afforded opportunity to deposit the rent after modifying the assessment order by slashing the period from December, 2002 to May, 2003. According to the learned counsel in cases where the period for payment has been fixed by the order of the Court, Section 148 of the Code would be applicable.

7. After hearing the learned counsel and perusing the order passed by both the Courts below, I am of the considered view that once a finding of fact has been recorded by both the Courts below to the effect that the arrears of rent were payable from 1.1.1993 either to May, 2003, then it was for the tenant-petitioners to choose his course of action. If the tenant-petitioners were confident about their case that the arrears were payable up to November, 2002 only, then they could have deposited that amount and could have contested the order of assessment to the extent that the period of December, 2002 to May, 2003 could not be included for the purposes of calculating arrears. However, the case pleaded by the tenant-petitioners is that they were not in arrears of rent as they were regularly making the payment of rent to the landlord-respondent and they did not deposit any arrears in pursuance to order dated 5.5.2003 passed by the Rent Controller. It is further the case of the tenant-petitioners that the landlord-respondent is carrying on his business in the adjoining premises and, therefore, he could not have kept quiet for such a long period of 10 years. It is, thus, evident that if it had not been the case of the tenant-petitioners that the assessment order of the Rent Controller was wrong to the extent of including the period from December, 2002 to May, 2003. Therefore, I do not find any substance in the aforementioned submission made by the learned counsel. Once the tenant-petitioners have taken the risk of not paying the rent in terms of the order passed by the Rent Controller, the ejectment of such a tenant is bound to follow.

8. The Supreme Court in Rakesh Wadhawan's case (supra) has interpreted the provisions of Section 13(2)(i) of the Act to conclude that the Act has been framed for the benefit of the tenants and, therefore, the tenants should not suffer on account of self assessment or for short tender. On that basis, the provision was so interpreted to conclude that the Rent Controller is under an obligation to pass a provisional order of assessment calling upon the tenants to make payment of arrears of rent and if they fail to make the payment of rent in accordance with the assessment order, then nothing requires to be done except ordering the tenants' eviction. The observations of the Supreme Court in Rakesh Wadhawan's case (supra) read as under :—

“23. The purpose of enacting such a provision as in Section 13(2)(i) proviso, which acts almost in terrorem on the tenant, in several rent control laws is dual. It ensures recovery of rent to the landlord and saves him from the recalcitrant tenant by building pressure on tenant to make payment under pain in eviction. At the same time it protects the tenants from the unscrupulous devices of landlords. Both the purposes are defeated by too simplistic an interpretation placed on Section 13(2)(i) proviso of the Punjab Act by the High Court of Punjab and Haryana, as already referred to.

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30. To sum up, our conclusions are :

(1) In section 13(2)(i) proviso, the words ‘assessed by the Controller’ qualify not merely the words ‘the cost of application’ but the entire preceding part of the sentence i.e the arrears of rent and interest at six percent per annum on such arrears together with the cost of application.

(2) The proviso to Section 13(2)(i) of East Punjab Urban Rent Restriction Act, 1949 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.

(3) Of necessity, ‘the date of first hearing of the application’ would mean the date of falling after the date of such order by Controller.

(4) On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the Controller.

(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 deficit amount/failing which alone he shall be liable to be evicted. Compliance shall save him from eviction.

While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings.

The view of the law so taken by us advances the object sought to be achieved by the legislation, serves best the interests of landlord and tenant both, removes uncertainty in litigation and obscurity in drafting of the provisions and also accords with the principles of justice and equity. Even if, it is an innovation, it is in the field of procedural law, without affecting the substantive rights and obligations of the landlord and the tenant and such innovation is permissible on the basis of authority and supported by principles of justice, good sense and reason. We have not touched the substantive rights of landlord and tenant, and are feeling satisfied with a do little in the field of procedure so as to effectuate the purpose of enactment.

9. When the principles laid down in Rakesh Wadhawan's case (supra) are applied to the facts of the present case, it becomes evident that the landlord-respondent has claimed rent from 1.1.1993 till the date of filing of the petition i.e? 28.11.2003 (28.11.2002?). The Rent Controller has passed the order on 5.5.2003 calling upon the tenant-petitioners to pay rent at the rate of Rs. 600/- p.m They did not pay the rent as assessed by the Rent Controller on the plea that they have been regularly paying the rent. However, at the trial they failed to prove any payment of rent to the landlord-respondent. Consequently, an order of ejectment was a natural consequence as has been followed by both the Courts below following the view taken by the Supreme Court in Rakesh Wadhawan's case (supra).

10. The argument of Mr. Palli that under Section 148 of the Code, this Court or the Appellate Authority could exercise the power of extending time to deposit the arrears of rent has not impressed me because the language of Section 13(2)(i) of the Act does not admit of any such extension. According to the aforementioned provisions if the tenant has not paid or tendered the rent due within 15 days after the expiry of time fixed in the rent note or he has failed to pay the rent in compliance with the order of assessment drawn by the Rent Controller in accordance with the law laid down in Rakesh Wadhawan's case (supra) by the time fixed by the Rent Controller, the tenant is liable to be ejected. The provision has been interpreted by the Supreme Court in Rakesh Wadhawan's case (supra) itself and it has been held that if the tenant does not comply with the provisional order of assessment made by the Controller, then nothing more is required to be done and an order of eviction shall follow. It is also pertinent to mention that the Supreme Court while interpreting the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 has refused to read Section 5 of the Limitation Act, 1963 into that Act in the case of Nasiruddin v. Sita Ram Agarwal, (2003) 2 SCC 577 : 2003 (1) RCR (Rent) 337 (SC). I am of the view that no extension could be granted to the tenant-petitioner for depositing the arrears of rent. Even otherwise, such an extension if granted would defeat the very purpose of the provisions made by Section 13(2)(i) of the Act and every tenant would dispute his liability to pay rent and then would apply for extension. Therefore, I have no hesitation in rejecting the contention raised on behalf of the tenant-petitioners.

11. For the reasons recorded above, this petition fails and the same is dismissed.

Petition dismissed.