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Jaswant Rai Vs. Devi Dass - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1278 of 1971
Judge
Reported inAIR1974P& H104
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 13 and 15(5); Punjab Relief of Indebtedness Act - Sections 31
AppellantJaswant Rai
RespondentDevi Dass
Cases ReferredKhushi Ram v. Shanti Rani
Excerpt:
.....and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it was thus evident that if the tenant chose to pay the arrears of rent due from him as soon as he came to know that an application for ejectment had been put in, or before the date of the first hearing was fixed by the controller, there could not be no question of his computing the arrears up to the date of the first hearing and he would thus be perfectly within his rights to claim protection from ejectment in paying the rent that was due from him on the date of such payment......is paid on the first hearing as required by section 13(2)(i) proviso, but it is found that the sum paid as rent was more than that due but the same paid as interest was less than due, the excess amount paid as rent can be adjusted towards the payment of rent. in the present case, even the amount unnecessarily paid as rent by the tenant on the first hearing would not quite cover the amount due as interest, but the small amount outstanding is far more than covered by rs. 130.00 which the tenant was able to conclusively establish that he had overpaid in the past, and this too in my opinion can be taken into account'. then, there is another unreported decision of s.b. capoor. j. in mool chand v. ghanshiam dass, civil revn. no. 480 of 1965, decided on 3-9-1965(punj) which also supports the.....
Judgment:
ORDER

1. This is a landlord's revision petition against the decision of the Appellate Authority reversing on appeal the order of the Rent Controller ordering ejectment of the tenant.

2. The shop situate in Jullundur and belonging to Jaswant Rai, was given on a monthly rent of Rs. 30/- to Devi Dass. On 21st August, 1968, an application for the eviction of the tenant was made by the landlord under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter called the Act, on a number of grounds. But in the present petition, we are only concerned with one of them, viz, non-payment of rent for 32 months, amounting to Rupees 960/-, with effect from 1st December, 1965, to 31st July, 1968.

3. The position taken by the tenant was that he had already deposited Rs. 90/- on 22nd March, 1966, in the Court of the learned Senior Subordinate Judge at Jullundur under Section 31 of the Punjab Relief of Indebtedness Act for payment of the landlord. Another sum of Rs. 870/- was similarly deposited by him on 14th August, 1968, after the had received the notice dated 1st August, 1968, from the landlord asking him to vacate the premises. Thus the rent according to the tenant, had been paid upto 31st July, 1968.

4. It is common ground that the amount of Rs. 960/- was withdrawn by the landlord on 31st of October, 1968. On the first date of hearing i.e. 29th November, 1968(it was so held both by the Rent Controller and the Appellate Authority) the tenant deposited Rs. 80/- as interest up to 31st October, 1968 the date on which the landlord withdrew the amount of Rs. 960/-, from the Court of the learned Senior Subordinate Judge, Jullundur, and Rs. 20/- as costs of the application as assessed by the Rent Controller.

5. The Rent Controller came to the conclusion that the tenant was guilty of non-payment of rent, because (a) Rs. 960/- which were already deposited by the tenant, though withdrawn by the landlord, would not amount to a valid payment in law and according to the Rent Controller, the tenant had to make this payment on the first date of hearing and (b) the interest paid was less. According to the Rent Controller, the correct amount of interest came to Rs. 82.66 Paise. On this finding, therefore the Rent Controller ordered the eviction of the tenant.

6. When the matter came in appeal before the Appellate Authority, he reversed the decision of the Rent Controller and held that as the landlord had already withdrawn Rs. 960/-, therefore, the tenant was not to deposit any arrears of rent on the first date of hearing. He also came to the conclusion that the interest deposited by the tenant was less by Rs. 2.65 Paise. But Rs. 960/-, which were withdrawn by the landlord, was in excess than the actual amount of rent due to him on the date when the ejectment application was filed. According to him, the tenant was liable to pay rent up to 30th June, 1968, and not 31st July, 1968, as claimed by the landlord, with the result that Rs. 30/- more had been deposited by the tenant, which had been with-drawn by the landlord and, therefore, the extra amount of interest, which was due to the landlord could be adjusted out of the excess amount of Rs. 30/-. As a result of these findings, he came to the conclusion that the tenant was not guilty of non-payment of rent and no arrears were due from him. The appeal was, consequently, accepted and the eviction application dismissed. The landlord has come here in revision.

7. The only point that has been argued by the learned counsel for the petitioner before me is that on 21st August, 1968, the landlord had a cause of action to file the ejectment application, because, admittedly, the tenant had not paid the rent that was due from him. It was only on 31st October, 1968, when the landlord, withdrew the amount of Rs. 960/-, that had been deposited by the tenant on two occasions, namely 22nd March, 1966 and 14th August, 1968 that no arrears were due from him. The landlord was, however, justified in filing the ejectment application on 21st August, 1968. According to the learned counsel, after the filing of the ejectment application, the tenant could only succeed if he had complied with the proviso to Section 13(2)(i) of the Act, which says:

'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.' The argument proceeds that on the first date of hearing even though there were no arrears of rent due from him, according to the proviso, the tenant had to deposit interest at 6 per cent, per annum on the arrears together with the cost of application assessed by the Controller and it is only then that the tenant would be deemed to have complied with the proviso. In the instant case, according to the learned counsel, the tenant had not fulfilled the conditions laid down in the proviso. Although he had deposited Rs. 20/- as costs of the application as assessed by the Rent Controller, but he had not deposited the correct amount of interest, namely, Rs. 82.65 Paise, because admittedly, instead of that amount, he had deposited only Rs. 80/-. As the tenant had not complied with the proviso, so proceeded the argument, it had to be held that he was guilty of not paying the arrears of rent.

8. In this connection, learned counsel for the petitioner referred to a Bench decision of this Court in Isher Dass Tara Chand v. Harcharan Dass, ILR (1961) 1 Punj 315, in which while discussing the question as to whether the expression 'arrears of rent' occurring in the proviso to clause (i) of subsection (2) of Section 13 of the Act meant the rent, which was due from the tenant and remained unpaid on the date of the application or on the date of the first hearing, the learned Judges observed that under the law a landlord could secure on order of eviction of his tenant only if he proved that on the date of the application for ejectment, arrears of rent were due from the tenant and he had not paid the same within 15 days from the expiry of the time fixed in the agreement of tenancy, or in the absence of such agreement by last day of the month next following that for which the rent was payable. It thus followed that if on the date of the application, the rent had not become due, or the period fixed for its payment by agreement or under clause (i) of sub-section (2) of Section 13 had not expired, no application for ejectment of the tenant would lie. The proviso to clause (i) of sub-section (2) of Section 13, however, gave a concession to the tenant by permitting him to pay or tender the arrears of rent together with interest at 6 per cent, per annum on such arrears and costs of the application assessed by the Controller on the first hearing of the application for ejectment and thus save himself from forfeiture of his tenancy. The arrears of rent, costs, etc. referred to above had to be paid or tendered by the first hearing of the application and not later. There is nothing in the proviso referred to above to debar the tenant from making the payment of arrears etc. before the date of the first hearing, or even before an order was passed by the Controller fixing such a date. It was thus evident that if the tenant chose to pay the arrears of rent due from him as soon as he came to know that an application for ejectment had been put in, or before the date of the first hearing was fixed by the Controller, there could not be no question of his computing the arrears up to the date of the first hearing and he would thus be perfectly within his rights to claim protection from ejectment in paying the rent that was due from him on the date of such payment.

9. Even applying the principle of law laid down by the above authority, the question to be seen is whether the tenant had complied with the proviso to Section 13(2)(i). There is no doubt that on the day when the ejectment application was filed, some arrears of rent were due from the tenant and, therefore, the landlord was justified in making an application for eviction against him. The question is--has the tenant complied with the proviso mentioned above? under the said proviso, the tenant should either pay or tender the arrears of rent together with interest at 6 per cent, per annum on such arrears and the cost of the application assessed by the Controller. There is no dispute that the cost as assessed by the Controller had been paid. There is further no dispute that there were no arrears of rent due from the tenant on the first date of hearing. Therefore, the question its payment or tender did not arise, because, according to the learned counsel for the petitioner. Rs. 960/- had been withdrawn by his client on 31st October, 1968, and therefore, according to him, no arrears of rent were due from the tenant. The dispute is only as to whether full interest had been paid by the tenant or not. As already mentioned above, the interest fell short of Rs. 2.65 Paise. Admittedly, on the date of the ejectment application, the arrears of rent due would be Rs. 930 and if that amount had been paid, there would be no arrears. In the instant case, as I have already said Rs. 960/- had been concededly withdrawn by the landlord. The argument on behalf of the tenant is that the landlord had received Rs. 30/- in excess from him and consequently, the deficiency in the interest to the extent of Rs. 2.65 Paise could be adjusted out of Rs. 30/- which were withdrawn by the landlord. Learned counsel for the petitioner has, however, urged that no adjustment could be made out of that sum, because while depositing the same, the tenant had specifically mentioned that the amount was being deposited on account of the rent up to 31st July, 1968. In this connection, he referred to an unreported decision of Falshaw C. J. in Attar Singh v. Muni Lal, Civil Revn. No. 535 of 1962, decided on 24-5-1963(Pun). In that case, before the ejectment application came up for its first hearing before the Rent Controller, some money had been tendered by the tenant to the landlord and accepted by the latter. That payment included the rent due not only up to the date of the filing of the application, but also the rent for some subsequent months, which had become due at the time when the payment was actually made. The tenant in that case did not deposit anything on account of interest and costs on the first date of hearing, because, according to him, there were no arrears due from him and as a matter of fact, something in excess had been taken by the landlord. The argument raised was that if any interest was to be deposited, the same could be adjusted out of the extra amount that had gone to the landlord on behalf of the tenant. But this contention of the tenant was replied by the learned Judge observing that when the tenant himself had, while making the payment, made it clear that he was paying the amount on account of arrears of rent, specifying the particular months for which the payment had been made, the landlord could not appropriate a part of the payment towards the interest and costs and, therefore, since the tenant had not complied with the proviso, he was liable to ejectment.

10. As against this, learned counsel for the respondent has drawn my attention to three or four authorities out of them, one being by Falshaw C.J. himself in Chaman Lal v. Rakha Ram, Civil Revn. No. 427 of 1965 decided on 1-4-1966(Punj). In that case, the tenant had deposited Rs. 180/- as rent for July and August, 1962, which was not found to be due from him. There was a shortfall in interest and the tenant had prayed that the said interest could be deducted out of the amount already deposited by him. An argument was raised on behalf of the landlord that since the tenant, while depositing the money, had specifically mentioned that it was rent for particular months, the landlord could not adjust the amount of interest out of the said sum. This contention was negatived by Falshaw C.J. and it had been ordered that the amount of interest could be adjusted out of the said amount and, therefore, the tenant was not liable to ejectment on that ground. The learned Judge had also referred to a decision of Khanna J. in Bansi Lal v. Sant Ram Chopra, 67 PLR 192 = (AIR 1965 Punj 375) where the learned Judge had observed:--

'That when an amount as arrears of rent and interest thereon is paid on the first hearing as required by Section 13(2)(i) proviso, but it is found that the sum paid as rent was more than that due but the same paid as interest was less than due, the excess amount paid as rent can be adjusted towards the payment of rent. In the present case, even the amount unnecessarily paid as rent by the tenant on the first hearing would not quite cover the amount due as interest, but the small amount outstanding is far more than covered by Rs. 130.00 which the tenant was able to conclusively establish that he had overpaid in the past, and this too in my opinion can be taken into account'. Then, there is another unreported decision of S.B. Capoor. J. in Mool Chand v. Ghanshiam Dass, Civil Revn. No. 480 of 1965, decided on 3-9-1965(Punj) which also supports the contention of the tenant. In that case, reliance was placed on a Bench decision of this Court, in Khushi Ram v. Shanti Rani, 1964-66 Pun LR 755 where in paragraph 6 of the judgment, it was said:

'In 1964-66 Pun LR 755 it is said that even the deposit made did not cover the entire amount due, the argument being that, when the sum of Rs. 150/- was paid into Court on the 24th January, 1962, rent for several months had become over-due and for the period exceeding the statutory time fixed for payment interest was payable, while the actual sum paid covered the rent alone for five months. Mr. Aggarwal for the petitioner, however, points out that as a matter of fact rent for only four previous months had become due by the 24th January, 1962, and if rent for the fifth month was not paid, no default in respect of that payment can be said to have occurred. The reason is that, according to Section 13, sub-section of the East Punjab Urban Rent Restriction Act, rent in the absence of a specific agreement fixing the date for payment is payable 'by the last day of the month next following that for which the rent is payable'. No special agreement fixing any date for payment is proved in this case, and it is therefore clear that rent for the period, 6th December 1961, to the 5th January, 1962, had not become payable when the deposit of Rs. 150/- was made on the 24th January, 1962. The only default in payment of rent could have been in respect of the previous four months and the total rent amounted to only Rs. 120/- so that the excess of Rs. 30 could be taken as more than covering the small amount of interest that was payable on the arrears. On this view of the facts, it is apparent that the tenant's eviction should not have been ordered, as there was in law no default committed in respect of the payment of rent. The revision potion filed by Khushi Ram (Civil Revision 608 of 1963) must, therefore, be allowed with costs and the order of eviction set aside, and I would so order.'

11. It will, thus, be seen that there are a large number of authorities taking the view that if the tenant had already paid more rent then was due from him on the date of the eviction application, the interest or costs due from him could be adjusted out of the said extra sum with the landlord and he would not be liable to eviction on that ground.

12. In view of what I have said above, I will hold that the tenant had complied with the proviso to Section 13(2)(i) of the Rent Act. That being so, he was not liable to eviction. Thus, there is no force in this petition, which is, accordingly, dismissed but with no order as to costs.

13. Petition dismissed.


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