DHIANKAURversusEAST PUNJAB URBAN RENT RESTRICTION ACT, 1949

                       [2014] 13 S.C.R. 998



A                          DHIANKAUR
                                 v.
                         PREM PAL SRAN
                  (Civil Appeal No. 9978 of2014)

B                       OCTOBER 29, 2014
        [FAl<KIR MOHAMED IBRAHIM KALIFULLAAND
                ABHAY MANOHAR SAPRE, JJ.]
         EAST PUNJAB URBAN RENT RESTRICTION ACT,
    1949:
c       s. 13(2)(i), proviso- Opportunity granted by High Court
  to tenant to clear arrears found due in final adjudication by
  authoriti!?s below - High Court was justified in reaching the
  conclusion that after the finding of Appellate Authority as
  regards defaultable arrears that was found due and payable
D by respondent, the invocation of the proviso to s. 13(2)(i) was
  necessitated - The rights of landlady-appellant have been
  duly protected inasmuch as in the event of failure of
  respondent-tenant in duly discharging his stand as regards
  payment of defaultable arrears, consequence in not
E complying with the requirement of proviso to s. 13(2)(i) would
  follow and it would be open to appellant to exercise the liberty
  granted in her favour in the impugned judgment by
  approaching the High Court and seeking for appropriate
  orders.
F        Rakesh Wadhawan & Ors. v. Jagdamba Industrial
         Corporation & Ors. 2002 (3) SCR 468 : (2002) 5
         sec 440 - cited.
                         Case Law Reference:
G        2002 (3) SCR 468              cited          Para 3
         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
    9978 of 2014.
         Frorn the judgment and order·dated 17.09.2012 in CR
    No. 4510 of 2000 passed by the High Court of Punjab &
H   Haryana at Chandigarh.
                              998
             DHIAN KAUR v. PREM PAL SHAN                         999


      P. S. Khurana, Vibhuti Sushant Gupta and Dr. Kailash A
Chand , Advs. for the Appellant.
    · Tarunvir Singh Khehar andAshok K. Mahajan, Advs. for
the Respondent.
      The following Order of the Court was passed:
                                                                B
                           ORDER
      1. Leave granted.
      2. Appellant, landlady, is aggrieved by the order of the
High Court of Punjab and Haryana at Chandigarh in Civil
Revision No. 4510 of 2000 dated 171h September, 2012. The c
said revision arose at the inst_ance of the respondent-tenant
against the order of eviction passed by the Appellate Authority
under the East Punjab Urban Rent Restriction Act, 1949, by
which the respondent herein was granted two months' time to
vacate the premises and hand over possession to the appellant o
herein.
      3. By the impugned order, the High Court after making
reference to the decision of this Court in Rakesh Wadhawan
and Others v. Jagdamba Industrial Corporation and Others
(2002) 5 SCC 440 Bench insisted to apply the consequence         E .
of proviso to Section 13(2)(i) of the Act and extend an
opportunity for clearing the arrears found due in the final
adjudication of the rent proceedings by the lower authorities.
While applying the ratio laid down by this Court in the above
referred to decision, the learned Judge passed the following     F
order:
       "The tenant shall be liable to pay all the rent payable
     from December, 1994 till date and the tenant shall give
     memo of statement giving the particulars of the amount
     due and the amounts actually paid or deposited which G
     is a legal tender. The said calculation shall be rendered
     within 30 days from the date of receipt of copy of the
     order and delivered to the landlord within the time
     stipulated above. The petition for eviction is dismissed
                                                               H
1000         SUPREME COURT REPORTS                  (2014] 13 S.C.R.


 A          on the statement made that the entire amount has been
            deposited. If there is any default of arrears in the manner
            canvassed by the landlord, the landlord shall be at
            liberty to approach this Court for appropriate
            modification of this order. The order of eviction passed
 B          by the court below is set aside and the civil rf!vision is
            allowed."
         4. To briefly reiterate the background of the proceedings,
   the appellant initiated the rent proceedings for ejectment on
   the ground of arrears of rent right from December, 1994. while
 C dealing with the proceedings a question arose whether the
   rent was at the rate of Rs.3,500/- (RL!pees Three thousand
   five hundrnd) per month as claimed by the appellant or Rs.
   1,500/-(Rupees One thousand five hundred) per month as
   claimed by the respondent herein. Based on the evidence led
 D before the Rent Controller, a categoric finding came to be
   made by the Rent Controller that the rent aggreed between
   the parties was only Rs.1,500/-(Rupees One thousand five
   hundred) per month. Ultimately, learned Rent Controller held
   that the appellant failed to prove her case and consequently
 E dismissed the petition.
             5. Before the Appellate Authority, the issue relating to
       the rate of rent, though was raised, it was concluded by the
       Appellate Authority also by holding that the rate of rent was
       only Rs. 1,500/-(Rupees One thousand five hundred) per month.
 F     However, as regards the default in the payment of rent was
       concerned, the Appellate Authority held that the respondent
       was in arrears from January, 1995 to 3Q 1h November, 1995.
         6. In the above stated background the respondent
   preferred a revision before the High Court in Civil Revi$ion
 G No. 4510 of 2000 which came to be ultimately disposed of by
   the impugned order on 171h September, 2012. The decision
   referred to by the learned Judge interpreting the proviso to
   Section 13(2)(i) of the Act, came to be rendered in Rakesh
   Wadhawan's case (supra). Para 29 and 30 of the said
 H
             DHIAN KAUR v. PREM PAL SRAN                           1001


decision laid down the effect of the proviso to Section 13(2)(i) A
of the Act. It would be useful to refer to the said paragraphs for
proper appreciation of this case as well. Paras 29 and 30 are
as under:-
        The result of the discussion may be summarized.
      Under proviso to Section 13(2)(i), the Controller having B
     discharged his obligation of passing an order under the
     proviso, either suo moto or on his attention in this regard
     being invited by either of the parties, it will be for the
     tenant to pay or tender the amount provisionally
     assessed by the Controller on the first date of hearing       C
     of the application for ejectment. On compliance, the
     Controller would proceed to adjudicate upon the
     controversy arising for decision by reference to
     pleadings of the parties and by holding a summary
     enquiry for the purpose. Such adjudication shall be           D
     provisional and subject to the later final adjudication.
     The finding that may ultimately be arrived at by the
     Controller may be one of the following~ three. The
     Controller may hold that the quantum of arrears as
     determined finally is (i) the same as was found to be         E
     due and payable under the provisional order, (ii) is less
     than what was determined by the provisional order, or
     (iii) is more than the one what was held to be due and
     payable by the provisional order. In the first case the
     Rent Controller has simply to pass an order terminating       F
     the proceedings. In the second case the Controller may
     direct the amount deposited in excess by the tenant to
     be refunded to him. In the third case it would not serve
     the purpose of the Act ifthe tenant was held liable to be
     evicted forthwith as is the view taken by the Punjab High     G
     Court in the case of Dial Chand (supra). The Controller
     directing the eviction of the tenant may pass a
     conditional order affording the tenant one opportunity
     of and a reasonable time for depositing the amount of
                                                                   H
1002   SUPREME COURT REPORTS                    [2014] 13 S.C.R.


 A     de,ficit failing which he shall be liable to be evicted. This
       power in ti· J Rent Controller can be spelled out from
       the use of the word "may" in the expression". The
       Controller may make an order directing the tenant to
       put the landlord in possession", as also from the
 B     principle of equity and fair play that the tenant having
       complied with provisional order passed by the Controller
       should not be made to suffer if the finding arrived at by
       the Controller at the termination of the proceedings be
       different from the one recorded in the provisional order.
 c     While exercising the discretion to make a conditional
       order of eviction affording the tenant an opportunity of
       purging himself of the default the Controller may also
       take into consideration the conduct of the tenant whether
       he has even after the passing of the provisional order
 D     continued to pay or tender the rent to the landlord during
       the pend ency of the proceedings as a relevant factor
       governing the exercise of his discretion. Such a course
       would be beneficial to the landlord too as he would be
       saved from the trouble of filing a civil suit for recovery
 E     of rent which fell due during the pendency of
       proceedings for eviction before the Controller.
       30. To sum up, our conclusions are:
       1. In Section 13(2) (i) proviso, the words 'assessed by
       the Controller' qualify not merely the words 'the cost of
 F     application' but the entire preceding part of the sentence
       i.e. 'the arrears of rent and interest at six per cent per
       annum on such arrears together with the cost of
       application'.
       2. The proviso to Section 13(2)(i) of East Punjab Urban
 G     Restriction Act, 1949 casts an obligation on the
       Controller to make an assessment of (i) arrears of rent
       (ii) the interest on such arrears, and (iii) the cost of
       application and then quantify by way of an interim or·
       provisional order the amount which the tenant must pay
 H

                                                                       -
              DHIAN KAUR v. PREM PAL SRAN                            1003


      or tender on the 'first date of hearing' after the passing     A
      of such order of 'assessment' by the Controller so as to
      satisfy the requirement of the proviso.
      3. Of necessity, 'the date of first hearing of the
      application' would mean the date falling after the date
      of such order by Controller.                                   B
     4. On the failure of the tenant to comply, nothiag
     remains to be done and an order for eviction shall follow.
     If the tenant makes compliance, the inquiry shall
     continue for finally adjudicating upon the dispute as to
     the arrears of rent in the light of the contending pleas        C
     raised by the landlord and the tenant before the
     Controller.
     5. If the final adjudication by the Controller be at
     variance with his interim or provisional order passed
     under the proviso, one of the following two orders may
                                                                0
     be made depending on the facts situation of a given
     case. If the amount deposited by the tenant is found to
     be in excess, the Controller may direct a refund. If, on
     the other hand, the amount deposited by the tenant is
     found to be short or deficient, the Controller may pass E
     a conditional order directing tenant to place the landlord
     in possession of the premises by giving a reasonable
     time to the tenant for paying or tendering the deficit
     amount, failing which alone he shall be liable to be
     evicted. Compliance shall save him from eviction.          F
     6. While exercising discretion for affording the tenant
     an opportunity of making good the deficit, one of the
     relevant factors to be taken into consideration by the
     Controller would be, whether the tenant has paid or
     tendered with substantial regularity the rent falling due G
     month by month during the pendency of the
     proceedings."
      7. When we apply the said decision to the facts of this
case, it will have to be held that the learned Judge was justified   H
1004        SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A in reaching the conclusion that after the finding of the Appellate
    Authority as regards the defaultable arrears that was found
    due and payable by the respondent for the period between
    January, 1995 and 30th November, 1995, the invocation of the
    proviso to Section 13(2)(i) was necessitated. The learned
 B Judge after holding so held that the respondent was liable to
    pay all the rents from December, 1994 onwards till the date of
    the· order and that he was bound to furnish the memo of
    statement giving the particulars of the amounts due and the
    amounts actually paid or deposited which was by way of a
 c legal tender. The said direction was issued by the learned
    Judge based on the submission made on behalf of the
    respondent that entire arrears which was found due and
    payable by the respondent by the Appellate Authority was duly
    cleared even at the time when the Civil Revision Petition came
 o to be entertained by the High Court of Punjab and Haryana
    and that the future rents were also paid regularly without any
    default.
            8. However, the learned Judge prescribed a time limit of
    30 days for making calculation of the arrears which was
 E ·claimed to have been paid by the respondent from the date of
    the receipt of the copy of the impugned order by delivering a
    copy of such statement to the appellant. The learned Judge
    further gave liberty to the appellant to move the High Court in
    the event of the respondent's failure to satisfactorily disclose
 F that the entire arrears as found due and payable by the
     respondent was not paid as claimed by the respondent.
            9. In such circumstances, we find that the learned Judge
     was perfectly justified in applying the law laid down by this Court
     in the above referred to judgment. We also find that the rights
 G of the appellant has been duly protected inasmuch as the event
     of failure of the respondent in not duly discharging his stand
     as regards the payment of defaultable arrears, consequence
     that would follow in not complying with the requirement of the
     proviso to Section 13(2)(i) as has been noted by the learned
 H
             DHIAN KAUR v. PREM PAL SRAN                         1005


Judge was axiomatic. Therefore, while affirming the judgment A
of the learned Judge impugned in this appeal, we preserve
the liberty granted by the learned Judge and it is for the
respondent to comply with the direction as contained in
paragraph 3 of the impugned judgment. In the event of th.e
respondent's failure to do so, then it is always open to the B
appellant to exercise the liberty granted in her favour in the
impugned judgment by approaching the High Court and seek
for appropriate orders.
      10. This appeal stands disposed of on the above terms.
                                                                 c
Rajendra Prasad                            Appeal disposed of.