M.M. Punchhi, J.
1. Since doubt was entertained by S. P. Goyal, J. with regard to the correctness of the rule propounded in Nasib Singh v. Om Parkash, (1979) 81 Punj LR 502 : (AIR 1979 Punj & Har 96) this petition for revision was admitted by him to a Division Bench. Hence the listing of the petition before us.
2. Facts giving rise thereto are plain and simple. the landlord-respondent had sought eviction of the tenant-petitioner's before the Rent Controller, Narwana on a variety of grounds. One such ground was that the tenant had not paid or tendered the rent due to him and was thus in arrears from 1-3-1978 till date. The rate of rent claimed was Rs.110/-. The tenant while denying the allegations in the eviction petition claimed in his written statement that the rate of rent was Rs.75/- per mensem. All the same to avoid eviction, the tenant availed of the first proviso to S. 13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act. 1973(briefly referred to as the Act) by making payment of the arrears of rent at the rate of Rs.11/- per mensem as asked for. Having warded off summary eviction, the tenant applied to the Rent Controller that an issue be struck which should determine the rate of rent--whether it was Rs.75/- per mensem or Rs.110/- per mensem. The Rent Controller issued notice on that application to the landlord. He, while resisting it countered, that after the tender of the arrears of the rent, the ground of eviction on the basis of non-payment of arrears of rent had been rendered infructuous and thus the tenant should seek his remedy by filing an independent suit under S. 7 of the Act. According to the landlord, there was no necessity of framing the issue sought. Agreeing with the contention of the landlord, the Rent controller vide his order dated 3-6-1981, now under challenge, dismissed the application.
3. The learned counsel for the petitioner in support of his contention cited before S. P. Goyal, J. Nasib Singh's case (AIR 1979 Punj & Har 96) (supra) as has been done before us. That decision was rendered by my learned brother M. R. Sharma, J. (who is now with me as a partner in the Bench). In addition thereto, he relied on some other single Bench cases which wholly or partially supported his contention. We propose to deal with each of them presently. On the other hand, learned counsel for the landlord-respondent did not cite before us a single judgment to the contrary.
4. In Gayan Parbha v. Anar Devi, Civil Revision No. 210 of 1965 decided on 24-3-1967, Chief Justice Mehar Singh took the view that it was duty of the tenant to make payment or make tender of the amount as stated, and if he fails to do so, he cannot have the advantages of the proviso to. clause (i) of sub-section (2) of S. 13 of the East Punjab Urban Rent Restriction Act, 1949. In that case, render had been made by the tenant at the rate owned by her and not as stated by the landlord. That case was decided against the tenant as there was short payment even at the rate calculated by the tenant and in regard to the interest and costs of the application.
5. In Dial Chand v. Mahant Kapoor Chand. (1967) 65 Punj LR 248, Mehar Singh C. J. observed as follows:--
'It is conceivable that a landlord may make an unreasonable claim with regard to the rate of rent in arrears, may be with the dishonest intention of placing the tenant in such a position that he may not be able to take advantage of the proviso, but even in such a case the tenant ought to know the truth, that is to say, the actual rent that he has been paying all along and the rent that has been agreed by him with his landlord, and if he holds to the actual rent and succeeds in proving that figure, the exaggerated claim by the landlord would come to nothing. In such a case if the tenant complies with the proviso according to the rate which he says is the true rate and proves that to be so, he has the benefit of the proviso and escapes ejectment. This is an aspect of the provision with regard to ejectment for arrears of rent which does give the landlord a certain advantage to harass the tenant by making an unfounded claim of arrears at a higher rate of rent than the actual rent and for this there is not even a provision in the Act for any penal action against the landlord. In spite of this, the proviso being for the benefit of the tenant, if he wishes to take advantage of it he has to comply with it strictly, and in a case like the present he can take one of the three courses. He can under protest make payment or tender of the arrears at the rate claimed by the landlord in the ejectment application, and if the rate is found subsequently to be less, he can hope for adjustment of the excess payment. He can come forward with a straight statement of what is the true rate of rent and on that proceed to comply with the proviso, in which case he has the benefit of the proviso, if the finding is that the rate stated by him is the rate of rent for the tenancy. Lastly, he can enter into a dispute with the landlord, as in this case, and insist upon his lower rate of rent and then take the consequence if he is not able to prove that that is the actual rent.'
The ratio of the decision in Dial Chand's case ((1967) 69 Punj LR 248) (supra) was followed by D. K. Mahajan J. in Ram Sarup v. Sham Sunder, Civil Revision No. 1185 of 1972 decided on 27-3-1973. Thus an issue on question of rent was held claimable.
6. In Behari Lal v. Ajudhia Dass, 1970 Rent C. J. 671, V. D. Misra, J. of the Delhi High Court while interpreting S. 13 of the East Punjab Urban Rent Restriction Act, 1949 took the view that the terminology used therein did not show that any duty was cast on the Rent Controller to assess the arrears of rent due independently of the stand taken by the landlord. It was held therein that in a case where the demand of the landlord had been met availing of the proviso to S. 13(2)(i) of the said Act, the Rent Controller had no authority to enter into an inquiry to find out as to what the rate of rent was, before dismissing the application of the landlord on this aspect. The duty of the Rent Controller was confined to see whether on the date of hearing the tenant has paid or tendered the arrears of rent asked for by the landlord along with interest and costs. The moment that was done, it was the duty of the Rent Controller to dismiss the application for eviction. It was also held therein that the mere fact that the tenant had paid the rent while reserving his right to recover the excess paid by him, the payment on his behalf could not be termed conditional.
7. In Avtar Singh v. Machhi Ram (1977) I rent C. R. 208, R. S. Narula, C. J. took the view that if the tenant disputed in his written statement that the rent was lesser than claimed by the landlord by yet tendered rent at the rate claimed by the landlord unconditionally, the subsequent suit of the tenant to recover the excess amount was barred by principles of res judicata. This principle was held applicable to the facts of that case since no express reservation had been made, nor could one be implied, in the earlier eviction petition and thus the subsequent suit was held barred by principles of constructive res judicata.
8. Lastly is Nasib Singh's case (AIR 1979 Punj & Har 96) (supra) where the view taken by any learned brother M. R. Sharma, J. was that the provision to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 nowhere mentioned that a tenant while making the tender of the rent should do so under protest and 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, such tender was held no to debar the tenant from claiming trial of the issue relating to the quantum of the rent. the principle of 'Payment under protest' was held not to be so sacrosanct but was held a matter inferable from the facts and circumstances of each case. In any case if the lower rate had been pleaded in the written statement, there was held to be a presumption that the tender made of the tenant at the higher rate was under protest or only provisional so that if the decision of the issue regarding quantum of rent ultimately went against the tenant, he could not be deprived of the benefit of the aforesaid proviso. If was also held that the precautionary measure adopted by him did not debar the tenant from insisting upon the determination by the Rent Controller of the rate of rent fixed by the parties by mutual consent.
9. It is undisputed that the excess rent paid by the tenant is recoverable by him under S. 7 of the Act and that an action by way of suit is also not barred. The remedies can be availed of within a period of six months of such excess payments as provided in S. 7. The twin question is whether the tenant should file a separate suit to claim refund of the excess payments or can he claim an issue in the eviction petition itself since an event occurring therein gave him the cause of action.
10. It is well settled that the general principles of the Civil P. C. 1908 apply to proceedings before the Rent Controller, though strictly the Code as such is not applicable. It would be useful now to take note of some new provisions inserted by Civil P. C. Amendment Act. 1976 operative with effect from 1-2-1977. These are embodied in O. VIII, Rr. 6A to 6G. These rules provide for the filing of a counter claim by the defendant in a suit, based upon any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit, but before the defendant has delivered his defence or the time set out for the purpose. Such counter claim in R. 6A(2) has the same effect as if it is a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. R. 6A(4) provides that the counter claim. R. 6A(4) provides that the counter claim shall be treated as a plaint and governed by the rule applicable to the plaints. Principles embodied in Rr. 6A to 6G of O.VIII as a whole leave no manner of doubt that a counter-claim set up by the defendant (in this case the tenant) that the rent settled between the parties was at the rate of Rs.75/- per mensem and not Rs.110/- per mensem is in the nature of a claim or a right, the cause of action of which accrued to the tenant after the filing of the eviction petition and for the plea taken on that behalf in the written statement. The scope of such defence plea, having the effect of a cross-claim is to enable the Court to pronounce the final judgment in one and the same proceeding. These principles which have now come about as a part of the Civil P. C carry out the broader principles of the public policy that there should be avoidance of multiplicity of proceedings and the parties should litigate once for all lest suffer bars of res judicata as spelled out in the afore-quoted single Bench decisions. Protest payment at the rate claimed by the landlord or insisted upon by the tenant is necessary to claim benefit of the proviso to avoid eviction. Unless such protest is lodged or inferred, the subsequent suit for recovery of the excess payment would be barred by principles of constructive res judicata as held by Narula C. J. in Avtar Singh's case (1977-1 Ren CR 208) (supra). Protest is to be presumed if a plea is taken in the written statement by the tenant that a lesser sum is due, yet the benefit of the proviso is availed of by him making or tendering the amount claimed by the landlord. And the issue of question of rent is capable of being settled in the same eviction petition as held in Nasib Singh's case (AIR 1976 Punj & Har 96) (supra).
11. On reconsideration of the entire case law on the subject as also from the light, which is forthcoming from the amendment made to the Civil P. C. it becomes crystal clear that in availing the provisions of the proviso to S 13(2)(i) of both the Acts aforementioned, the tenant does not lose the right of claiming an issue on the quantum of rent and a decision thereon from the Rent Controller in the proceedings for eviction. Such right of claim in respect of the cause of action having accrued to him on and during the pendency of the eviction application, his defence laid in the written statement will have the effect of a cross-claim. In the altered general principles of law, even if the landlord does not want to continue with the petition for eviction or gets it stayed or dismissed, the counter-claim can nevertheless be proceeded with as visualised under O.VIII Rs.60. Thus the view taken by the Delhi High Court in Behari Lal's case (1970 Ren CJ 671) (supra) which view seems to have been shared by S. P. Goyal, J. in the admitting order, that the question of rent has not any bearing in the petition for ejectment thereafter, cannot, with due respect to the learned Judges, be taken to be stating the principles now applicable. Specific defence when set up by the tenant in the written statement would itself be an inbuilt protest for the simultaneous availing of the benefit of the proviso by making excess payment as held in Nasib Singh's case (AIR 1979 Punj & Har 96) (supra) by my learned brother M. R. Sharma, J. and logically for hopeful adjustment of the excess payment as conceived of by Mehar Singh C. J. in Dial Chand's case (1967-69 Punj LR 248) (supra). We are persuaded to come to this view, while applying general principles of the Civil P. C. to further the intendment of the law framers. One of the foremost considerations for the enactment of Rent Control Laws is restrictions on the quantum of rents. Permitting the landlord to take away the excess rent from the tenant frightened to make payment in order to avail of the benefit of the proviso and the Rent Controller wringing his hands that he could do nothing about it would, to our mind, be a fraud on the statute. S. 7 of the Act conceives of a situation where refund be necessary for excess payments of rent made by a tenant. We see no reason why a claim under S. 7 of the Act cannot be determined by the Rent Controller as a cross-claim under the Act simultaneously with the eviction petition. Such a course to our mind furthers the purposes of the Act rather than frustrate them.
12. For the view thus taken, we hold that the order of the Rent Controller in refusing to frame the issue on the quantum of rent was illegal and improper and deserves to be set aside. While allowing the petition and setting aside the impugned order, we direct that the Rent Controller shall, in the light of the observations made by us, frame the requisite issue, determine the quantum or rent and settle it one way or the other and such relief to the parties as is consonant with the ends of justice. This petition is accordingly allowed but with no order as to costs.
M.R. Sharma, J.
13. I agree.
14. Petition allowed.