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Kalu Ram Vs. Gonda Mal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 919 of 1979
Judge
Reported inAIR1980P& H140
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 13(2), 13(2)(1) and 14
AppellantKalu Ram
RespondentGonda Mal
Cases ReferredGajanan Dattatraya v. Sherbann Hosang Patel
Excerpt:
.....application on the first date of its hearing, the ground of ejectment on the basis of non-payment of rent in the first application, is no more available to the landlord or the arrears paid by him sub-sequent to the first date of hearing am deemed to have been paid on the lira date of hearing of the first application. 9. if this contention of the learned counsel for the tenant that by accepting the rent in the subsequent application for ejectment on the ground of non-payment of rent, including the earlier period as well, the landlord has for-feited his right in the earlier application to the ejectment of the tenant, is a valid one, then the landlord will he indirectly debarred from making any subsequent application on the ground of non-payment of rent for the subsequent period..........hearing to save himself ejectment in the given application. the payment of arrears to defeat the ejectment application has the nexus to the date on which the application comes up for the for the first date. in each application cause of action is separate and distinct one and so is the first date of hearing. thus each application has to be dealt with independently.10. the learned counsel for the tenant has next argued that the ground of ejectment is to be seen at the time of the passing the order. it, too. has no force. once it is held that any payment of arrears made subsequently, i.e., after the first date of hearing is no valid payment in the eye of law and does not save the tenant from ejectment under sub-section (2) of section 13 of the act, this argument is not available to the.....
Judgment:

J.V. Gupta, J.

1. This case was admitted to the Full Bench in view of the conflict between the two Division Bench Judgments of this Court, reported as Rattan Chand v. Jagmohan Singh AIR 1972 Punj & Har 153 and Mulkh Raj v. Onkar Singh (1974) 76 Pun LR 192.

2. The landlord-respondent filed an application for ejectment of the tenant petitioner from the chobara in question on 8th January, 1975, on the ground of non-payment of rent for the period 1st January, 1973 to 31st December, 1974 amounting to Rs. 240/- (Rent being Rs, 10/- per month), in addition to Rupees 21.60 Paise as house-tax. The tenant-petitioner did not appear on the fist date of hearing in spite of service and was proceeded ex parte vide order dated 1st February, 1975, of the Rent Controller. The application of the tenant for setting aside the ex parte proceedings was dismissed and the same order was maintained up to the High Court. The High Court dismissed the revision petition of the tenant on 15th November, 1976. Meanwhile, the landlord-respondent another application on 24th August, 1978, In which one of the grounds for ejectment was also the non-payment of rent for the period 1st December, 1972 to 30th August, 1976, amounting to Rs. 450/- plus the house-tax. This amount of the rent, house-tax, as well as the interest and the cost assessed by the Court was tendered by the tenant on the first date of hearing, which was accepted by the landlord under protest. The copies of the subsequent application filed on 24th August, 1976, exhibit R. 1, and the statement of the landlord receiving the amount under protest, Exhibit R. 3, were filed by the tenant-petitioner in the present case, on the basis of which he submitted that since the arrears for the period claimed in the first application have been paid in the second application, the ground of ejectment viz., nonpayment of arrears of rent on the due date, is no more available to the landlord respondent. This argument did not find favour with the Rent Controller and as such he ordered the ejectment of the tenant vide his order dated 20th March, 1978, and the same was maintained by the Appellate Authority in appeal. Against the said order of ejectment, the tenant-petitioner has come up in revision to this Court.

3. Mr. Sarin, learned counsel for the petitioner, argued that the landlord-respondent in the second application filed by him had also claimed the arrears for the period for which they were claimed in the first application and since the said amount of arrears have been paid under proviso to Section 13(2)(1) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), the ground of ejectment on the basis of non-payment of rent is no more available to the landlord, and, therefore, the application is liable to he dismissed. In support of his contention, he relied upon a judgment of this Court, delivered by Hon'ble the Chief Justice Mehar Singh (as he then was), reported as Bagarian Armoury v. Rakha Ram, (1966) 68 PM LR 847, which was approved by the division Bench in Rattan Chand's case (supra). He also cited Supreme Court authority reported as Jagat Bahadur Singh v. Badri Parshad Seth, (1963) 65 pun LR 452 and J.G. Kohli v. Financial Commr. Haryana, Chandigarh, AIR 1976 Punj & Har 107. He has also cited for consideration Mulkh Raj v. Onkar Singh (1974) 76 Punj LR 192, in which a contrary view is said to have been taken.

4. On the other hand, the learned counsel for the landlord-respondent argued that If once the tenant has tailed to pay or tender the arrears of rent and interest as contemplated under proviso to section 13(2)(1) of the Act. on the first date of hearing, any payment mode subsequently and even accepted by the landlord does not entitle the tenant to claim that the arrears of rent have been paid in accordance with law. According to the learned counsel, If the tenant has once failed to avail the opportunity as contemplated by the sub-s. (2) of S. 13, any amount accepted subsequently by the landlord does not amount to waiver of his right to eject the tenant oh the ground of non-payment of rent. In support of his argument, he relied upon Punjalal Bhagwandin v. Dave Bhawat-prasad Prabhuprasad, AIR 1963 se 120., Mangilal v. Sugan Chand Rathi, (1964) 5 SCR 239 and Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, AIR 1967 SC 1078. Re also relied upon a judgment of the Supreme Court in Gajanan Dattatraya v. Sherbann Hosang Patel 1975Ren CJ 672: (1975)2 SCC 688, for the Proposition that once a default is committed, the tenant is liable to eviction like the tenant in this Supreme Court judgment where his liability to eviction arose once the fact of unlawful subletting was proved. The learned counsel also tried to distinguish the judgments of this Court in Bagarian Armoury's case (supra) and in Rattan Chand's case (supra) on which the other side has mainly placed strong reliance.

5. I have gone through the authorities cited by the learned counsel for both the aides. As regards Messrs. Bagarian Armoury's case (supra), the learned Chief Justice took the view that:

'In my opinion, the first eviction application was rendered infructuous by the decision of the second eviction application, the counduct of the landlord estopped him from pursuing his first application and in any case from the totality of the circumstances it is almost an unequivocal inference that the landlord waived his claim under the first eviction application'.

It may be pointed out that in that case in the second application filed by the landlord the period for which the arrears were claimed in the first application were also included, and he got his eviction application dismissed after the payment of arrears of rent on the first date of hearing. The learned Chief Justice has mainly considered the question of waiver from which it was inferred that by virtue of the decision of the second application, his first application was rendered infructuous. This judgment was subsequently followed by a Division Bench in Rattan Chand's case (supra) In that case, the application filed by the landlord on the basis of Payment of rent also included the period for which the arrears were claimed in the first application and as the arrears were paid on the first date of hearing. along with interest and the same was dismissed by. the Rent Controller. On the basis of this payment made sub-sequently, the tenant took the plea that he could not be ejected in the first application for non-payment of rent as the said amount had been paid by him sub-sequently. This plea of the tenant was accepted by the High Court, on the basis of the earlier judgment in Bagarian Armoury's case (supra), An additional ground of res judicata on the basis of the provision of Section 14 of the Act was also taken into consideration and it was observed:--

'In the present case the decision on or the Rent Controller in the second application has become final would operate as res judicate so far as the appeal in the first application is concerned. On this ground also the present petition must succeed'.

This view was not accepted in the sub-sequent case, i e. Mulkh Raj's case (supra). The earlier case was sought to be distinguished on the ground that the second application was filed when the first application had already been decided and the order of ejectment against the tenant had already been passed. This event, though subsequent, could not be used for any purpose to determine the fate of the appeal lodged against the order in the first application. In that case, an order for eviction of the tenant was passed on the ground that the tenant was in arrears of rent and the order was under appeal. Meanwhile, the landlord had filed second application for ejectment on the basis of non-payment of rent, including the arrears for the default of which the first application had been allowed. This application was dismissed as withdrawn as the amount claimed therein mm paid by the tenant on the Ant date of hearing. In my opinion, there was not much distinction in principle in the said two cases decided by the Division Bench, reported as Rattan Chand's case (supra) and Mulkh Raj's case (supra).

6. It will be relevant to reproduce Section 13(2), which is to the following effect:--

'13(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied:--

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable: 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'. xx xx

The Scheme of the Act is that the tenant is to pay the rent regularly either with-in, 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of. any such agreement, by the last date of the month next following that for which the rent is payable. In case the tenant Tails w pay the rent as provided, he incurs the liability for ejectment under the Act. By adding proviso to sub-section (2) of 1Section 13, a further opportunity has been given to the tenant to pay all the arrears due on the first date of hearing of the application for ejectment with interest and costs of the application, as assessed by the Controller and if this payment is made on the first date of hearing, then 'by fiction the tenant is deemed to have duly paid or tendered the rent within the time aforesaid. It is not disputed by the learned counsel for the tenant-petitioner that if once the tenant tails to pay the rent on the first date of tearing, any payment made subsequently to the landlord will not entitle him to get the application for ejectment dismissed on the ground that the rent had been paid. Under the Act this is the only safeguard provided for the benefit of the landlord, i. e. regular payment of the rent has been secured by the provisions of the Act. If a tenant fails to make the payment as provided under the Act he is liable to ejectment, though he might pay arrears due from him subsequent to the first date of hearing. The right to receive rent from the tenant is different from the right to secure ejectment under the provisions of the Act. If once the tenant fails to pay the rent in accordance with the provisions of sub-section (2) of Section 13 of the Act, any payment of the arrears made by him subsequently, will not entitle him to get the application for ejectment dismissed on the ground that the rent had been paid. It is not the payment of the arrears alone but to pay the same by the statutory date which is most material in order to save ejectment under the Act It is the rent due from the tenant which is to beg paid or tendered on the first date of hearing. In the second application filed by the landlord, of course, while claiming the rent due, it may include the period for which the rent had been claimed in the first application as well, if the tenant had tailed to pay the arrears on the first date of hearing in the first application. That being so, it cannot be said that the rent was not due for that period as well which was the subject-matter of the first application.

7. It is also not disputed that the second application for ejectment on behalf of the landlord on the ground of non-payment of rent which had become due for the period subsequent to the filing of the first application, is maintainable. Inclusion of the first period in the subsequent application in no way disentitles the landlord to seek ejectment in the first application on the ground of non-payment of rent due at that time. i.e., at the time of the first application. The rent claimed therein being due at that time could be deemed to have been paid within time if the payment had been made on the first date of hearing. Having failed to avail of the opportunity provided under the Act, the tenant is debarred to claim that the said rent having been paid by him in the subsequent application on the first date of its hearing, the ground of ejectment on the basis of non-payment of rent in the first application, is no more available to the landlord or the arrears paid by him sub-sequent to the first date of hearing am deemed to have been paid on the lira date of hearing of the first application. In my opinion, both these contentions are misconceived. The first contention is of no avail because of the Supreme Court authorities on the question of waiver, referred to earlier. The learned counsel for the petitioner has not been able to point out on what principle other than waiver, the tenant is entitled to take the plea of subsequent payment, whether outside the Court or inside the Court in a regular suit for the recovery of the amount of arrears or in a sub-sequent application for ejectment before the rent Controller. In law, there is no difference whether the amount is accepted outside or inside the Court what is material, is the date on which the amount of arrears is to be paid not the amount itself.

8. The other contention that the sub-sequent payment on the first date of hearing be deemed to he payment on the date of hearing of the first application, is wholly untenable. There cannot he two dates for 'the first date of hearing' in one application in the absence of any deeming provision in the Act. The only provision relevant is the proviso to sub-section (2)(1) of Sec 13 of the Act. The arrears due are to be seen in the application in which the ejectment is sought. Every application for ejectment on the basis of non-payment of rent has a separate cause of action and is to he decided an such The landlord's right to seek ejectment on the ground of non-payment of rent is a statutory one,, whereas his right to receive rent is inherent because of the relationship of landlord and tenant, though the statute gives a right to the tenant to make the payment of the arrears due on the first date of hearing in order to save his ejectment. This payment on the first date of hearing is for the purposes of saving him from ejectment on that ground; otherwise payment of the rent due is obligatory upon him, it being the right of the landlord to receive the same. Thus, any payment of arrears made after the first date of hearing does not save the tenant ban ejectment on that ground.

9. If this contention of the learned counsel for the tenant that by accepting the rent in the subsequent application for ejectment on the ground of non-payment of rent, including the earlier period as well, the landlord has for-feited his right In the earlier application to the ejectment of the tenant, is a valid one, then the landlord will he indirectly debarred from making any subsequent application on the ground of non-payment of rent for the subsequent period for which he has admittedly a separate cause of action. Every, application for ejectment on the basis of nonpayment of rent being an independent one and having a separate cause of action i.e. non-payment of rent due at the relevant time is to be decided an such.

Admittedly. any payment made after the first date of hearing does not save the tenant from ejectment, That being so, It is immaterial if such a payment of arrears due is made In a subsequent application on the first date of its hearing as it is essential for the tenant to make payment on the first date of hearing to save himself ejectment in the given application. The payment of arrears to defeat the ejectment application has the nexus to the date on which the application comes up for the for the first date. In each application cause of action is separate and distinct one and so is the first date of hearing. Thus each application has to be dealt with independently.

10. The learned counsel for the tenant has next argued that the ground of ejectment is to be seen at the time of the Passing the Order. It, too. has no force. Once It Is held that any payment of arrears made subsequently, i.e., after the first date of hearing is no valid payment in the eye of law and does not save the tenant from ejectment under sub-section (2) of Section 13 of the Act, this argument is not available to the tenant and deserves to be rejected as such.

11. The judgment of the Supreme Court in Jagat Bahadur Singh's can (supra) and of this Court in J.G. Kohli's case (supra), relied upon by him, are nod at all applicable to the facts of the present case It will depend in each case with reference to the ground on which the ejectment of the tenant is being sought. In Jagat Bahadur Singh's case (supra), the ejectment was being sought on the ground that the building was unfit for human habitation whereas, the Executive Engineer of the Municipal Committee under direction from the Court had reported that satisfactory repairs had been done, but the same had not been taken consideration by the Rent Controller at the time of passing the order of ejectment. The Appellate Authority reversed the order holding that it was open to the Court to take into consideration facts which had come into existence after the filing of the application The decision was upheld by the Supreme Court the appeal of the landlord was dismissed. Similarly, in J.G. Kohli's case (supra), the landlord sought ejectment on the ground of his personal necessity and, therefore, it was held that the existence of the need is not to be seen at the time of filing of the application alone and the Rent Controller and the Appellate Authority could legitimately take into consideration any change in the circumstances regarding the requirement of the landlord on the date when the order of ejectment is passed or affirmed. On the other hand, in the case reported as Gajanan Dattatraya's case (supra), it has been held that a tenant is disentitled to any protection under the Act, if he has once sublet the building and his liability to eviction arises once the fact of unlawful subletting is proved, inasmuch as if at the date of the notice, it is proved that there was unlawful subletting the tenant is liable to be evicted. On the same analogy if once it is proved that a tenant has failed to pay the arrears on the first date of hearing, he is liable to ejectment, though he might have paid the said arrears sub-sequently to the landlord, which he was entitled to recover under all eventualities. It does not lie in the mouth of the tenant to say that since the payment of the arrears had been made, therefore, the ground of non-payment of rent is not available to the landlord at the time of the order of ejectment.

12. In this view of the matter, with due respect to the learned Judges, it is held that the law laid down in Rattan Chand's case (supra) and in Bagarian Armoury's case (supra), is not good law and the same-are overruled. Also in view of what has been said above the distinguishing feature of Mulkh Raj's case (supra), that the first application had already been decided before the payment in the second application was accepted, loses all significance.

13. For the reasons recorded above, this petition fails and is dismissed with no order as to costs.

S.S. Sandhawalia, C.J.

I agree.

D.S. Tewatia, J.

I agree.

14. Petition dismissed.


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