Ashwani Kumar vs Roshan Lal and Another

Satish Kumar Mittal, J.—The Landlord Ashwani Kumar has filed this petition against the order dated 9.2.2005, passed by the Appellate, Authority, Ambala under the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as ''the Act''), dismissing the petition for ejectment filed by him on account of non-payment of rent, after setting aside the order of ejectment dated 1.4.2004, passed by the Rent Controller.

The brief facts of the case are that initially, the demised shop was rented out to the respondents-tenants on the monthly rent of Rs. 1,000/-. Subsequently, on 13.6.1997, the landlord filed a petition u/s 4 of the Act for fixation of fair rent. The said petition was allowed by Rent Controller vide order dated 30.4.1999 and the rent of the demised shop was fixed at Rs. 1,836/- per month with effect from 13,6.1997.

The tenants filed appeal against the said order. On 10.6.1999, the Appellate Authority stayed the operation of the order dated 30.4.1999 passed by the Rent Controller. Ultimately, on 29.9.2001, the said appeal was partly accepted and the fair rent of the demised shop was fixed at Rs. 1,329.50 per month.

During the pendency of the aforesaid petition for fixation of fair rent before the Appellate Authority, on 1.6.1999, the landlord filed the ejectment application against the tenants on the ground of non-payment of rent. In the petition, he claimed Rs. 836/- per month as difference in the monthly rent from 13.6.1997 to 30.5.1998, as for the said period, the tenants had paid rent at the rate of Rs. 1,000/-per month, whereas as per the order dated 30.4.1999, passed by the Rent Controller, the fair rent of the demised shop with effect from 13.6.1997 was fixed at Rs. 1,836/- per month. For the further period i.e. from 31.5.1999 to 31.5.1999, the landlord claimed rent at the rate of Rs. 1,836/- per month.

In the said ejectment application, the respondent-tenants appeared and placed on record the order dated 10.6.1999, passed by the Appellate Authority, staying the operation of the order dated 30.4.1999, passed by the Rent Controller, fixing the monthly fair rent of the demised shop at Rs. 1,836/-.

The Rent Controller, after taking into consideration all the facts, assessed the provisional rent along with interest and costs to be paid by the tenants on the first date of hearing. The Rent Controller assessed the said rent at the rate of Rs. 1,000/- per month, as on that day, the stay order passed by the Appellate Authority was in operation. The respondents-tenants tendered an amount of Rs. 12,765/- to the landlord, on 19.11.1999, according to the assessment made by the Rent Controller. This amount included the arrears of rent at the rate of Rs. 1,000/- per month for the period claimed in the ejectment application as well as the amount of cost and interest, as calculated by the Rent Controller.

Subsequently, vide order dated 29.9.2001, passed by the Appellate Authority, fair rent of the demised shop was fixed at Rs. 1,329.50 per month. Keeping in view this fact, the Rent Controller passed the order of ejectment on 1.4.2004, after holding that the tender made by the respondents on the first date of hearing was short tender, therefore, they were liable to be ejected. The Rent Controller further directed the tenants to deposit the arrears of rent at the rate of Rs. 1,329,50 for the period in question within a period of one month. The tenants tiled appeal against the above order.

The Appellate Authority has set aside the order of ejectment passed by the Rent Controller, while coming to the conclusion that the tender made by the tenants :u the rate of Rs. 1,600/- per month, on the first date of hearing i.e.19.11.1999, was a valid tender, as on that day, operation of the order dated 30.4.1999 passed by the Rent Controller, whereby the monthly rent of the demised shop was enhanced from Rs. 1,000/- to Rs. 1,836/-, was stayed. A contention was raised by learned Counsel for the landlord that in the appeal filed by the tenants against he order dated 30.4.1999, fixing the fair rent, it was pleaded that in their view the fair rent of the shop should be fixed at Rs. 1,083.60, therefore the said amount should be taken as admitted rent, in view of the decision of the Supreme Court in Padmakar v. Madhukar 1995 H.R.R. 283. This contention has been rejected by the Appellate Authority, while observing that on 19.11.1999, the rent of Rs. 1,000/- per month was to be treated as admitted rent and the tenants have tendered the arrears of rent with cost and interest at the said rate, on the provisional assessment made by the Rent Controller.

I have heard the arguments of learned Counsel for the parties.

The aforesaid factual position has not been disputed by the learned Counsel for the petitioner-landlord. However, he submits that the Appellate Authority has erred in'' law while coming to the conclusion that on 19.11.1999, the admitted rent of the demised shop was Rs. 1,000/- per month. According to the learned Counsel, it should have been taken at the rate of Rs. 1,083.60, as was so pleaded by the tenants themselves in the grounds of appeal filed against the order dated 30.4.1999, passed by the Rent Controller. I do not find any force in this submission of the learned Counsel. Undisputedly, the Rent Controller assessed the arrears of rent for the claimed period of non-payment at the rate of Rs. 1,000/- per month along with cost and interest. This assessment was made in view of the order dated 10.6.1999, passed by the Appellate Authority, whereby operation of the order dated 30.4.1999 passed by the Rent Controller, was stayed. The arrears of rent, interest and costs, so calculated by the Rent Controller by the provisional order, were tendered by the tenants. Merely because in the grounds of appeal against the order dated 30.4.1999, the tenants had pleaded that in their opinion, the fair rent should not be more than Rs. 1,083.60 does not mean that the said figure has become admitted rent between the parties. Therefore, in my opinion, the Appellate Authority has rightly rejected the said contention and held that on the first date of hearing, the tenants rightly tendered the arrears of rent for the claimed period at the rate of Rs. 1,000/- per month along with interest and costs and the said tender cannot be said to be short tender. Thus, I do not find any illegality in the impugned order.

Even otherwise, the instant case can be considered from another angle. In Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors. (2002) 131 P.L.R. 370, it has been held by the Supreme Court that in a petition of ejectment on the ground of non-payment of rent, it is the duty of the Rent Controller to make an assessment of arrears of rent, interest on such arrears and 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. To save his eviction, the tenant is required to tender the amount, so calculated by the Rent Controller vide its provisional order, on the first date of hearing. 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 pleas raised by the landlord and the tenant before the Rent Controller. However, if at the time of final adjudication of the matter, the Rent Controller comes to the conclusion that the arrears of rent, so assessed, was short or deficient, then before passing the order of ejectment, he will provide second opportunity to the tenant to tender the deficient arrears of rent and pass a conditional order, but he cannot straight way pass the order of ejectment against the tenant on the ground that the tender made by the tenant under the provisional order was short. In the instant case, on 19.11.1999, the tenants tendered the arrears of rent at the rate of Rs. 1,000/- per month, along with interest and cost, as assessed by the Rent Controller. If subsequently, it was found by the Rent Controller that the rate of rent was Rs. 1,329.95, then he should have provided second opportunity to the tenants to tender the deficit amount, but no order of ejectment should have been passed. I have been informed that subsequently, the tenants have paid the deficit amount for the claimed period. Thus, in view of this fact also, no order of ejectment could have been passed.

In view of the above, I do not find any illegality or infirmity in the impugned order, passed by the Appellate Authority.

Dismissed.