V.D. Misra, J.
(1) This revision under section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, has been filed against the Judgment of Appellate Authority, Kangra at Dharamsala, upholding the judgment of Rent Controller, Kangra and dismissing the application for ejectment filed by Behari Lal.
(2) Briefly stated, the facts are that Behari Lal is the landlord and Ajudhia Das is a tenant under him on the ground floor of his double storeyed shop No. 231, Dehra Gopipur, District Kangra. The landlord filed an application for ejectment of the tenant under sections 13 (2) (i), 13 (2) (ii), and 13 (2) (iii) of the East Punjab Urban Rent Restriction Act, (1949) (hereinafter referred to as the 'Act'), The allegations were that the tenant had nto paid the rent since 28tii May, 1958, and thus owed the landlord a sum of Rs. 1620-00 as arrears of rent at the rate of Rs. 20.00 per month. It was also alleged that the tenant had partitioned the shop without the written consent of the landlord. The third allegation was that the tenant has committed various acts and has impaired materially the value bid the utility of the shop in question. Tie tenant controverter the allegation made by the landlord. He, however, admitted that some rent was due from him but it was due to the fact that the landlord was nto accepting payment of rent from him. He expressed his willingness to tender and pay in the Court the arrears due along with requisite interest and costs assessed by the Controller in terms of the provision of Proviso to section 13 (2) (i) of the Act. On 3rd April, 1965, the first hearing of the application for ejectment after due service, the tenant tendered Rs. 2074-44 paise on account of rent, interest and costs as assessed by the Controller. His counsel made a statement that rent on excess was being taken for which -an application had been made. The application of that date made by the tenant states that he had already paid rent up to 31st October, 1963, and the landlord petitioner was nto entitled for the period before 6th January 1961and that the tenant was entitled to recover the amount which has already been paid to the landlord and for which he was nto entitled. On the same day the learned counsel for the landlord made a statement giving up the ground of ejectment based on the non-payment of arrears of rent.
(3) The Rent Controller framed the following issues :- ( 1) Whether the respondent has partitioned the shop and is liable to ejectment on that ground? (2) Whether he has materially impaired the value or utility of the building? After going through the evidence produced by the parties the Rent Controller dismissed the application for ejectment filed by the landlord. An appeal was filed before the Appellate Authority by the landlord which was also dismissed.
(4) The only contention raised before the Appellate Authority was that the payment made by the tenant on the first date of hearing was nto unconditional and so was nto a valid payment in the eyes of law, and, thereforee, the tenant should have been ejected on that ground. The Appellate Authority came to the conclusion that the payment was valid and, in view of the statement made by the counsel for the landlord giving up this ground; the Rent Controller was justified in nto framing any issue in respect of this ground.
(5) Mr. Rup Chand Chaudhry on behalf of the petitioner has contended that it was the duty of the Rent Controller to see that law is complied with irrespective of the conduct of the parties since the parties could nto contract out of the provisions of this Act, and he should have framed an issue He further submitted that the provisions of section 13(2)(i) are mandatory and lay down a duty on the Rent Controller to find out what the an ears of rent are and whether the tenant has paid or tendered the payment of such arrears before the tenant could be entitled to the protection of the proviso to clause (i) of sub section (2) of section 13 of the Act. According to him, the landlord could nto give up the ground of non-payment of ai rears of rent since this will amount to his contracting out of the relevant provisions of the Act. He tried to seek support from section 4 of the Act which lays down a duty on the Rent Controller to fix the standard rent of the premises and contended that any agreement between the landlord and the tenant in respect of the amount of standard rent would nto be binding on the parties.
(6) Sections 4 and 13 of the Act have been enacted to meet entirely two different sets of circumstances. The landlord taking advantage of the paucity of accomodation, had started demanding exorbitant rent of the premises from the tenants and-the tenants were forced to pay those amounts in order to have roofs over their heads. The tenants had gone to the extent of entering into any type of agreement dictated by the landlord so that they should' Somehow get some place to live in. In these circumstances. It was necessary for the legislature to step in and provide for a rent which could be termed fair. Section 4 of this Act provide in detail the various factors which have to be taken into consideration by the Rent Controller in order to determine what the lair rent of the premises in question would be, notwithstanding anything contained to the contrary in any agreement arrived at between the parties. Under these circumstances it was held by some of the High Courts that any agreement between the landlord and the tenant in respect of amount of standard rent, would nto be binding on them since it had nto been fixed by the Rent Controller according to the terms of section 4. To hold otherwise would amount to nullify the effect of the provisions enacted for fixation of fair rent and to perpetuate the strangle.hold of the landlords over the tenants.
(7) The learned counsel for the petitioner referred to various judgments of the High Courts including Niranjan Singh and another v. Murti Shri Bhagwan Ram, and Messrs George Oakes v. Chief Judge, Small Cause Court to show the duty cast upon the Controller in respect of fixing the fair rent.
(8) As regards section 13 of this Act, the terminology used by the legislature does nto show that any duty was cast on the Kent Controller to assess the arrears of rent due independent by of the stand taken by the landlord. In other woids, in a case where the landlord had demanded a particular amount as arrears of rent and the tenant had paid that amount along with interest and costs as required by the proviso to section 13(2,(i), the Rent Controller had no authority to enter on an enquiry to find out as to what the arrears in fact were, before dismissing the application of the landlord on this aspect. If that were not, so, it would give rise to various anomalous setuations. One of such situations will be where the landlord may be demanding a lesser amount as arrears than what was, in fact, due. 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 round that he has nto paid the rent due faced with this situation, the learned counsel for the petitioner bad to admit that in such a situation the tenant could nto 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 at to what amount of rent was due from the tenant, irrespective of the fact that the landlord 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 the rent paid by the tenant was nto in excess of the amount demanded by the landlord, would the Rent Controller 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 nto order the ejectment of the tenant while in the latter case he could order the re-payment to the tenant but the .case would nto be affected. Holding an enquiry in such circumstances would be a sheer waste of time.
(9) As I read the relevant portion of this section I find that the only duty cast on the Rent Controller is to see whether on the first date of hearing the tenant has paid or tendered the arrears of rent as desired by the landlord Along with interest and costs The moment he finds that such an amount has been paid it is his duty to dismiss the application of the landlord on that aspect without holding any enquiry as to what is the amount due as arrears of rent. The question of holding such an enquiry would only arise, where the tenant has specifically raised this question and wants title enquiry to be held by the Rent Controller in order to be successful in his averments. In this case when the payment of full amount claimed by landlord was made by the tenant, he had only stated as fact that according to him he was paying more than the rent was due and he reserved his right to recover back the excess paid by him. This does nto show that he was making any conditional payment. ad this nto been the case, the landlord would have never accepted the payment and would nto have given up this important ground of his ejectment. A reference was made to Dial Chand v. Mahant Kapoor Chand where it was held as under:-
'THE proviso to clause (i) of sub-section (2) of section 13 of the East Punjab Urban Rent Restriction Act (3 of 1949) 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 where there is a dispute as to the quantum of rent, 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 nto able to prove that that is the actual rent. If he fails to establish this ground, obviously he fails to have advantage of the proviso'.
The learned counsel for the petitioner relies on this judgment and contends that according to this judgment the payment made by the tenant should be held as conditional and nto in accordance with law. I am afraid, this judgment on the other hand, clea.rly lays down the right of the tenant to make a payment under protest if he feels that he is being asked to pay more than the rent due. I am in respectful agreement with this judgment which has correctly laid down the rights of the tenant in such a situation.
(10) The learned counsel for the petitioner also referred to a judgment of the Punjab High Court in Jiwana Mal v. Khushi Ram. I find that the facts in that case were entirely different inasmuch as the tenant while depositing the rent under protest, had pleaded that it should nto be paid to the landlord until the final decision of the case. It was in these circumstances that it was held that there was no valid payment in terms of this section. Reference was also made to notes on unreported cases in A .1. R. 1955 N. U.C.. The bare reading of this note shows that the question there was that the payment made by the tenant was Jess than the amount of arrears of rent claimed and in those circumstances it was held that the landlord was nto estopped from urging that the payment made by the tenant did nto fulfill the requirements of law.
(11) The learned counsel for the respondent has invited my attention to A decision of the Punjab High Court reported in Gulshan Rai and others v. Devi Dayal. In this case also the counsel for the landlord had conceded that the tenant had complied with the requirements of the proviso and his eviction could nto be ordered on that account. Later on, it was contended that the concession was on a question of law and the party was nto bound by it. In these circumstances it was held as under:-
'THE only other thing that I wish to point out is that before the Appellate Authority on the side of the landlord it was contended that the tenant had compiled with the requirements of the proviso with regard to the tender of arrears and interest on the first heating and his eviction could nto be ordered on that ground The learned counsel for the landlord has contended that the counsel for the landlord before the Appellate Authority could nto make a concession on a question of law but did he make a concession on a question of law for a party who is entitled to a payment can always forgo that payment at the stage of the Appellate Authority the side of the landlord was no longer wanting the payment of the costs then the,ground of eviction for non-compliance with the proviso to section 13 (2) (i) ceased to exist and as much was conceded before the Appellate Authority.'
(12) In my opinion the Appellate Authority was right in holding that the payment made by the tenant and accepted by. the landlord was a valid payment in terms of section 13 (2) (i) and once the landlord had given up this ground of ejectment, the Rent Controller was justified in nto framing any issue on that aspect, The result is that this revision fails and is dismissed with costs.