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Nasib Singh Vs. Om Prakash and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1464 of 1975
Judge
Reported inAIR1979P& H96
ActsEast Punjab Urban Rent Restriction Act - Sections 13(2)
AppellantNasib Singh
RespondentOm Prakash and anr.
Cases ReferredIn Dial Chand v. Mahant Kapoor Chand
Excerpt:
.....section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to..........at the rate of rs. 40/- per month. thereafter the respondent made a petition be-fore the learned rent controller. wherein he submitted that the issue regarding the quantum of rent be struck off because he had already received the arrears of rent. the learned rent controller acceded to this prayer and struck off the relevant issue. while doing so he purported to rely upon a single bench decision of delhi high court in case behari lal v. ajudhia dass, 1970 ren cj 671.2. in this petition it has been argued on behalf of the petitioner that the petitioner had asserted that the rent fixed was at the rate of rs. 22/- per month and he could not have been forced to pay rent at the rate of rs. 40/- per month without its being determined at that figure. on behalf of the respondent, it has been.....
Judgment:
ORDER

1. The respondent No. 1 filed a petition for the ejectment of the Petitioner on the grounds inter alia of non-payment of rent. He claimed that the rent of the premises in dispute had been fixed at Rs. 40/- per month. The petitioner submitted a written statement in which he asserted that the premises in dispute carried a monthly rent of Rs. 22/- per month. However, in order to save his interest, the petitioner tendered rent along with costs and interest etc., at the rate of Rs. 40/- per month. Thereafter the respondent made a petition be-fore the learned Rent Controller. wherein he submitted that the issue regarding the quantum of rent be struck off because he had already received the arrears of rent. The learned Rent Controller acceded to this prayer and struck off the relevant issue. While doing so he purported to rely upon a Single Bench decision of Delhi High Court in case Behari Lal v. Ajudhia Dass, 1970 Ren CJ 671.

2. In this petition it has been argued on behalf of the petitioner that the petitioner had asserted that the rent fixed was at the rate of Rs. 22/- per month and he could not have been forced to pay rent at the rate of Rs. 40/- per month without its being determined at that figure. On behalf of the respondent, it has been argued that since the petitioner did not tender rent at the rate of Rs. 40/- per month under protest, it was not open to him to claim a decision on the issue relating to the quantum of rent.

3. The proviso to S. 13(2)(i) of the East Punjab Urban Rent Restriction Act reads as under:--

'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.'

4. This Proviso nowhere mentions that a tenant while making a tender of the rent should do so under protest. All that is required is that the tenant should pay the arrears of rent, interest and costs etc. on the first hearing of the application. This implies that even when there is a genuine dispute about the quantum of rent it is open to the tenant to make tender at the rate claimed by the landlord; but that tender does not debar him from claiming a. trial of the issue relating to the quantum of rent. Had it not been so an unscrupulous landlord would claim rent at a rate higher than at which it had been fixed, pocket the same when tendered on the first date of hearing, and then leave the tenant helpless.

5. The Rent Control legislation has been brought on the statute book with the avowed object of ameliorating the lot of tenants by affording them remedies against undue raises in rents demanded by the landlords. Almost all the Rent Control Statutes lay down that the tenants should not be forced to pay anything beyond what is commonly known as the standard rent. Courts of law while interpreting such statutes have to adopt an interpretation which advances their object instead of frustrating it. Any interpretation of the aforementioned proviso contrary to the one suggested by me would lead to the same result.

6. Behari Lal's case (1970 Ren CJ 671) (Delhi) (supra) relied upon by the learned Appellate Authority does lay down that it is not open to the Rent Controller to hold an enquiry after the rent claimed by the landlord is tendered on the first date of hearing. The learned Judge who decided that case observed as under:--

'In such a situation after the Rent Controller had found as to what the arrears were, has the Rent Controller now to force the landlord to accept the additional amount and has the tenant now to be non-suited on the ground that he has not paid the rent due. Faced with this situation the learned counsel for the petitioner had to admit that in such a situation the tenant could not be non-suited because he could be only ejected if the amount paid by him turned out to be less than the rent due as demanded by the landlord. He, however, submitted that in the instant case the payment by the tenant was conditional and so it was the duty of the Rent Controller to go into the question as to what amount of rent was due from the tenant, irrespective of the fact that the land-lord accepted the payment unconditionally and gave up this ground for ejectment. I asked him that supposing the Rent Controller, on holding an enquiry, came to the conclusion that rent paid by the tenant was not in excess of the amount demanded by the landlord, would the Rent Controller be justified in non-suiting the tenant and ordering his ejectment. I also asked him if the Rent Controller came to the conclusion that, in fact, excess amount has been paid, would he be justified in directing the landlord to pay back the excessive amount. The learned counsel for the landlord petitioner had to admit that in the former case the Rent Controller could not order the ejectment of the tenant while in the latter case he could order the repayment to the tenant but the case would not he affected. Holding an enquiry in such circumstances would be a sheer waste of time.'

7. It appears that in that case ejectment was sought only on the ground of non-payment of rent and the landlord accepted the payment unconditionally and gave up his ground of ejectment. That case is, therefore, clearly distinguishable.

8. In Dial Chand v. Mahant Kapoor Chand, (1967) 69 Pun LR 248, a learned Judge of this Court has laid down that proviso to Clause (i) sub-section (2) of S. 13 of the East Punjab Urban Rent Restriction Act was for the benefit of the tenant, who could adopt any of the three courses namely, (i) he could under protest make tender of the arrears of the rent, (ii) if the rate is subsequently found to be less he can hope for the adjustment of the excess payment, and (iii) he can enter into a dispute with the landlord and insist upon his lower rate of rent and then take the consequences if he has not been able to prove that the rent agreed upon between the parties was at the figure mentioned by him. The learned Judge while deciding this case did not lay down as a matter of law that before the tenant tenders rent at the higher rate he must under all circumstances make a statement that he was making tender of the rent at the higher rate under protest. In any event, whether the rent was being tendered under protest or not can be determined by the learned Rent Controller by taking into consideration the facts and circumstances of each case and if the tenant claims that the rent had been fixed at lower rate by raising the necessary plea in the written statement it should be presumed that he was making a tender of the rent at the higher rate under protest or only provisionally so that if the decision of the issue regarding the quantum of rent ultimately goes against him he may not be deprived of the benefit of the proviso (i) to sub-section (2) to S. 13 of the East Punjab Urban Rent Restriction Act. This precautionary measure adopted by him does not debar him from insisting upon the determinations by the Rent Controller of the rate of rent fixed by the parties by mutual consent.

9. By striking off the issue relating to the quantum of rent which had earlier been framed by the learned Rent Controller he has denied the petitioner of a very valuable right and in so doing he has acted with material irregularity in exercise of his jurisdiction. I, therefore, allow this petition, set aside the impugned order and direct the learned Rent Controller to decide the issue regarding the quantum of rent and then to proceed in accordance with law. The parties through their counsel are directed to appear before the Rent Controller on November 9, 1978.

10. Revision allowed.


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