HARJIT SINGH UPPALversusANUP BANSAL

                  [2011] 15 (ADDL.) S.C.R. 948


A                     HARJIT SINGH UPPAL
                                 v.
                          ANUP BANSAL
                 (Civil Appeal No. 4416 of 2011)
                           MAY 13, 2011
B
             [AFTAB ALAM AND R.M. LODHA, JJ.]

       East Punjab Urban Rent Restriction Act, 1949 - ss.
  15(1)(b) and 13(2)(i) provico - Eviction petition on the ground,
c of default in payment of rent - Order by the Rent Controller
  determining the provisional rent uls. 13(2)(i) proviso - Tenant
  not availing his remedy to challenge the same by filing fn
  appeal u/s. 15(1)(b) within the time prescribed - Effect of -
  Held: It cannot be said that the order fixing provisional rent
  becomes final and cannot be challenged subsequently,
D particularly, in the appeal challenging the order of eviction -
  s. 15(1)(b) does not make it imperative upon the person
  aggrieved to appeal from an interlocutory order and, if he
  does not do so, his right gets forfeited when he challenges
  the final order - An order of eviction follows if there is non-
E compliance of the order determining the provisional rent -
  However, when the tenant challenges the order of eviction in
  appeal and therein also challenges the order determining the
  provisional rent, it is not open to the Appellate Authority to
  refuse to consider the legality and validity of the order
F determining the provisional rent on the ground that no appeal
  was filed from that order though an appeal lay therefrom -
   Thus, .tlj:e app&llate authority did not commit any e"or in
  calling upon the Rent Controller to determine the arrears of
  rent, interest and costs afresh as the tenant's statement of
G payments towards rent was not refe"ed to and considered by
  tha..Rf?nf Controller - Order passed by the High Court is set
  aside- and that of the appellate court is restored.
      The respondent-landlord filed a petition under
  Section 13 of the East Punjab Urban Rent Restriction Act,
H                            948
        HARJIT SINGH UPPAL v. ANUP BANSAL                949


   1949 to evict the appellant-tenant on the ground of A
   default in paying rent since April, 2007, before the Rent
   Controller. The Rent Controller by order dated 11.06.2009
   determined the provisional rent and directed the tenant
   to make the payment of arrears of rent within a week. On
  07.09.2009, the tenant filed an application before the Rent
                                                                8
  Controller for recalling the order dated 11.06.2009 since
  the particulars of payment of rent furnished by the tenant
  were not considered. The tenant filed more applications.
  On 07 .04.2010, the Rent Controller rejected all the
  applications and passed an order of eviction against the
  tenant holding that there was no provision of law under C
  which the order dated 11.06.2009 could be recalled/
  reviewed. The tenant filed an appeal under Section
  15(1 )(b) of the 1949 Act before the appellate authority and
  challenged the orders dated 07.04.2010 and 11.06.2009
  passed by the Rent Controller. The appellate authority D
  holding that the provisional assessment order dated
 11.06.2009 was patently illegal, remanded the matter to
 the Rent Controller with a direction to pass fresh order
 regarding the provisional assessment of the arrears of
 rent, interest and costs of the proceedings. The E
 respondent-landlord filed a revision petition challenging
 the order passed by the Appellate Authority. The Single
Judge of the High Court allowed the revision petition
holding that since the tenant did not avail his remedy to
challenge the order fixing provisional rent, during the
period between the date of the order and date fixed for F
payment, the Rent Controller had no choice but to pass
an order of eviction. The order of the appellate authority
was set aside and that of the Rent Controller was
restored. Therefore, the appellants filed the instant .
appeal.                                                        G
    Allowing the appeal, the Court
    HELD: 1.1. The order passed by the Rent Controller
determining the provisional rent in an eviction petition
                                    a
based on the ground of default in situation where the          H
   950   SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A tenant fails to comply with that order may be a
  foundational order for an order of eviction that follows but
  nevertheless such order is an interlocutory order as that
  order does not determine the principal matter finally; it is
  only the order on subordinate matter with which it deals.
B [Para 30] [964-F-G]
        1.2. Section 15(1)(b) of the East Punjab Urban Rent
  Restriction Act, 1949 provides that a person aggrieved by
  an order passed by the Rent Controller may prefer appeal
  to the Appellate Authority within the time prescribed
C therein. The provision, for maintaining the appeal, does
   not make any difference between the final order and
   interlocutory order passed by the R.ent Controller in the
 . proceedings under the 1949 Rent Act. It does not say that
   if any aggrieved person by an interlocutory order passed
   by the Rent Controller from which an appeal lies does not
D appeal therefrom, he shall thereafter be precluded from
   disputing its correctness. There is no provision in Section
   15(1)(b), a provision like Section 105 (2) and Section 97
   of the Code of Civil Procedure. There is no impediment
   for an aggrieved person, on reading Section 15(1)(b) of
E the 1949 Rent Act, that an interlocutory order which had
    not been appealed though an appeal lay, could not be
    challenged in an appeal from the final order. Section
    15(1)(b) does not make it imperative upon the person
    aggrieved to appeal from an interlocutory order and, if he
F does not do so, his right gets forfeited when he
    challenges the final order. [Paras 25, 31 and 32] [960-F-
    H; 964-G-H; 965-A-C]
       1.3. An order of eviction follows as a matter of course
  if there is non-compliance of the order determining the
G provisional rent but when tenant challenges the order of
  eviction and therein also challenges the order of fixation
  of provisional rent-the order of eviction, in its nature,
  being dependant on the correctness of the order fixing
  the provisional rent and there being no Jndication to the
H contrary in Section 15(1)(b), it must be open to the
        HARJIT SINGH UPPAL v. ANUP BANSAL                951

 Appellate Authority to go into correctness of such            A
 provisional order when put in issue. [Para 33] [965-C-D]
        2.1. The High Court erred in holding that as tenant did
   not avail of his remedy to challenge the order fixing
   provisional rent during the period between the date of the
   order and date fixed for payment, the Appellat& Authority B
   could not have gone into the merits of such determination
   and, set aside the order of the Appellate Authority. The
   legal position is where a tenant does not challenge the
   order of the fixation of provisional rent passed under
   Section 13(2)(i) proviso, in appeal under Section 15(1)(b) c
   and also fails to comply with that order, the order of
   eviction must follow as per the provisions contained in
  the 1949 Rent Act but when the tenant challenges the
  order of eviction in appeal and therein also challenges the
  order determining the provisional rent, it is not open to 0
  the Appellate Authority to refuse to consider the legality
  and validity of the order determining the provisional rent
  on the ground that the correctness of such order cannot
  be examined as no appeal was filed from that order
  though an appeal lay therefrom. [Para 40] [970-E-H]
                                                                E
       2.2. On the facts of the instant case, the appellate
 authority did not commit any error in calling upon the
 Rent Controller to determine the arrears of rent, interest
 and costs afresh as the tenant's statement of payments
 towards rent from April, 2007 was not at all referred to and
 considered by the Rent Controller. If the order of the High F
 Court is allowed to stand, it would occasion in manifest
 injustice and result in miscarriage of justice inasmuch as
the tenant would be thrown out of the leased premises
although he may not have been in arrears of rent. In the
circumstances, re-determination of arrears of rent, G
interest and costs by the Rent Controller, as directed by
the appellate authority, would subserve the ends of
justice. If on re-determination, the tenant is found in
arrears of rent and does not deposit/pay the amount as
determined by the Rent Controller in time, as may be H
    952   SUPREI\ E COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A   directed, obviously he would suffer the order of eviction.
    Thus, the order passed by the High Court is set aside and
    the order passed by the appellate court is restored. [Paras
    41, 42) [971-A-D]
      Rakesh Wadhawan and others v Jagdamba Industrial
B Corporation and others (2002) 5 SCC 440; Vinod Kumar v.
  Prem Lata (2003) 11 SC 397; Maharajah Moheshur Sing v.
  The Bengal Government (1859) 7 Moore's Indian Appeals
  283; Nanibala Dasi and Another v. lchhamoyee Dasi and Ors.
  AIR 1925 Cal 218; Baikunta Nath Dey v. Nawab Salimulla
c Bahadur (1907) 6 C.L.J. 647; Mackenzie v. Narsingh Sahai
  (1909) 36 Cal 762; Khirodamoyi Dasi v. Adhar Chandra
  Ghose (1912) 18 C.L.J. 321; Sadhu Charan Dutta v.
  Haranath Dutta (1914) 20 C.W.N. 231; Kuloda v. Ramanand
  A.l.R. 1921 Cal.109; Syed Ishak Syed Farid and Anr. v.
  Kunjbihari Singh Sirdhujasingh Kshatriya A.l.R. 1940 Nagpur
0
  104 - referred to.
                         Case Law Reference:
          (2003) 11 SC 397         Referred to.        Para 19
          (1859) 7 MIA 283         Referred to.        Para 26
E         AIR 1925 Cal 218         Referred to.        Para 28
          (1907) 6 C.L.J. 647      Referred to.        Para 28
          (1909) 36 Cal 762        Referred to.        Para 28
          (1912) 18 C.L.J. 321     Referred to.        Para 28
F         (1914) 20 C.W.N. 231     Referred to.        Para 28
          AIR 1921 Cal.109         Referred to.        Para 28
          AIR 1940 Nagpur 104      Referred to.        Para 29
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G   4416 of 2011.
        From the Judgment & Order dated 23.9.2010 of the High
    Court of Punjab & Haryana at Chandigarh in C.R. No. 4144 of
    2010 (O&M).

H
        HARJIT SINGH UPPAL v. ANUP BANSAL                    953


     Rishi Malhotra; Mrinmayee Sahu, Prem Malhotra for the          A
 Appellant.
      Dr. Rajeev Dhawan, Naresh Kumar for the Respondent.
      The Judgment of the Court was delivered by
      R.M. LODHA, J. 1. Leave granted.                              B
     2. The main question for determination in this appeal, by
special leave, is: If a tenant {loes not avail his remedy to
challenge the order of the provisional rent fixed under Section
13(2)(i) proviso to the East Punjab Urban Rent Restriction Act,
1949 (for short, '1949 Rent Act') by filing an appeal under         C
Section 15(1)(b) within 15 days from date of such order,
whether the order fixing provisional rent becomes final and
cannot be challenged subsequently, particularly, in the appeal
challenging the order of eviction.
        3. The facts are these. The petition under Section 13 of D
  the 1949 Rent Act was filed by the Respondent ('landlord') to
  evict the appellant ('tenant') from Komfort Banquet Hall,
 Zirakpur-Panchkula Road, Zirakpur, Tehsil Dera Bassi, District
  S.A.S. Nagar (Mohali). (for short, 'the premises') before the
 Court of Rent Controller, Dera Bassi on December 6, 2008. E
 The landlord averred that the premises were leased out to the
 tenant for a term of five years commencing from August 11,
 2003 at the rent of Rs. 1,50,000/- per month. As per the terms
 of lease, rent would increase at the rate of 5 per cent every year
on the last prevailing rent and it was also agreed that the tenant F
shall pay the rent for every month in advance by the 7th of month.
 It is the case of the landlord that tenant stopped paying the rent
since April, 2007 regularly. Ultimately, after the expiry of the first
lease period, the tenant requested for reduction in rent and he
agreed to pay the rent of the premises at the rate of Rs.
1,50,000/- per month with effect from August 11, 2008 for the G
period of 31 months. The tenant also agreed to pay the Service
Tax at the rate of 12.5 per cent and also increase the rent at
the rate of 5 per cent every year on the last prevailing rent.
    4. The claim of eviction, inter alia, was founded on the       H
   954    SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A ground of default. It was averred that the tenant failed to make
  the payment of rent regularly and has fallen in arrears to the
  extent of Rs. 27.84,875.04 along with Service Tax at the rate
  of 12.5 per cent.
       5. The tenant filed written statement and traversed the
B case set up by the landlord in the petition for eviction. He
  averred that the premises were incomplete at the time of lease
  and he invested huge amount for its completion by taking loan
  from the banks amounting to Rs. 58,98,370/-. The tenant
  claimed adjustment of that amount. He also stated in the written
c statement that he has been paying rent to the landlord regularly
  - mostly by cheques- and from 2007 he has paid Rs.
  37,00,950/- to the landlord. He raised counter claim and
  claimed refund of the excess amount paid to the landlord.
       6. On June 6, 2009, the tenant filed an affidavit before the
D Rent Controller setting out in detail the statement of the payment
  of rent made by him from April, 2007 amounting to Rs.
  37,00,950/-.
       7. The Rent Controller determined the provisional rent on
  June 11, 2009 assessing the arrears of rent provisionally at Rs.
E 27 ,84,875.04. The Rent Controller directed the tenant to make
  the payment of arrears of rent as determined with interest at
  the rate of 6 per cent per annum and costs of Rs. 1,000/- on
  July 18, 2009.
       8. On September 7, 2009, the tenant made an application
F before the Rent Controller for recalling the order dated June 11,
  2009, amongst other grounds, on the ground that his affidavit
  as well as the written statement that he has also paid Rs.
  37,00,950/- to the landlord by way of cheques has not at all
  been considered.
G      9. The tenant made another application on February 9,
  2010 before the Rent Controller for calling upon the landlord to
  provide list of his employees along with attendance register.
  This, the tenant said, was required to prove the factum of .
  payment made by him to the landlord.
H
         HARJIT SINGH UPPAL v. ANUP BANSAL                   955
                   [R.M. LODHA, J.]

      10. By yet another application, the tenant annexed copies     A
 of cheques which were duly encashed by the Manager of the
 landlord. He claimed adjustment of those payments whUe
 assessing provisional rent.
      11. The landlord submitted reply to each of these
 applications, denied their correctness and submitted that the      B
 applications were not maintainable and have been made to
 delay, the eyic,tion proceedings.
      12. The Rent Controller considered all these applications
together and by her order dated April 7, 2010 rejected each
one of these applications. The Rent Controller held that there C
was no provision of law under which the order dated June 11,
2009 could be recalled/reviewed. It was held, relying upon a
decision of this Court in Rakesh Wadhawan and others v.
Jagdamba Industrial Corporation and others1 , that on the
failure of the tenant to comply with the order of the provisional D
assessment of arrears of rent, nothing remains to be done and
order of eviction has to follow. Accordingly, the Rent Controller
passed the order of eviction against the tenant on April 7, 2010.
     13. The tenant preferred an appeal under Section 15(1)(b)
of the 1949 Rent Act before the Appellate Authority assailing E
the orders dated April 7, 2010 and June 11, 2009 passed by
the Rent Controller.
      14. The Appellate Authority heard the parties and held that
the provisional assessment order dated June 11, 2009 was
patently illegal. The Appellate Authority, accordingly, allowed the F
appeal by its order dated June 10, 2010, set aside the .orders
dated April 7, 2010 and June 11, 2009 passed by the Rent
Controller and remanded the matter to the Rent Controller with
a direction to pass fresh order regarding the provisional
assessment of the arrears of rent, interest and costs of the G
proceedings. The Appellate Authority also directed the Rent
Controller to give to the parties an opportunity to produce the
documents/affidavits in support of their rival stand in respect
of the rent.
1.   (2002) s sec 440                                              H
    956    SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A        15. The landlord challenged the order passed by the
    Appellate Authority in the revision petition before the High Court
    of Punjab and Haryana. The Single Judge of that Court held
    that since the tenant did not avail his remedy to challenge the
    order fixing provisional rent, during the period between the date
8   of the order and date fixed for payment, the Rent Controller had
    no choice but to pass an order of eviction. The High Court,
    accordingly, by its order dated September 23, 2010 allowed
    the revision petition and set aside the order of the Appellate
    Authority and restored the order of the Rent Controller.
c        16. Section 13(2)(i) and the proviso appended thereto of
    the 1949 Rent Act reads as follows :
          ·s. 13. Eviction of tenants.--(1) ................................ .
          (2) A landlord who seeks to evict his tenant shall apply to
          the Controller for a direction in that behalf. If the Controller,
D         after giving the tenant a reasonable opportunity of showing
          cause against the applicant, 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
E                  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
F         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
G         aforesaid;
           (ii)    ................................. .
           (iii)   ............................... .
            (iv)   ............................... .
           (v)     ............................... •
H
         HARJIT SINGH UPPAL v. ANUP BANSAL                                 957
                   [R.M. LODHA, J.)
     17. The provision of appeal from an order passed by the                        A
Rent Controller is made in Section 15 of the 1949 Rent Act.
To the extent it is relevant, it reads as under :
     ·s. 15. Vesting of appellate authority on officers by State
     Government.-
                                                                                    B
     (1 )(a) .............................................................. .
     (1) (b) Any person aggrieved by an order passed by the
     Controller may, within fifteen days from the date of such
     order or such longer period as the appellate authority may
     allow for reasons to be recorded in writing, prefer an                         c
    appeal in writing to the appellate authority having
    jurisdiction. In computing the period of fifteen days the time
    taken to obtain a certified copy of the order appealed
    against shall be excluded.
    2.      . ....................................... D
    3.
    4.      . ...................................... .
    5.                                                                          •
    18. This Court had an occasion to consider Section 13(2)(i)                     E
and the proviso appended thereto in the case of Rakesh
Wadhawan 1• The Court summed up the conclusions as follows
    "30. 1. In Section 13(2)(1) proviso, the words •assessed
    by the Controller" qualify not merely the words "the cost of
    application" but the entire preceding part of the sentence                      F
    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)(1) of the East Punjab Urban
    Rent Restriction Act, 1949 casts an obligation on the                           G
    Controller to make an assessment of (1) arrears of rent, (i1)
    the interest on such arrears, and (iit) the cost of application
    and then quantify by way of an interim or provisional order
    the amount which the tenant must pay or tender on the "first
    date of hearing" after the passing of such order of                             H
    958     SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A         "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 the Controller.
B
          4. On the failure of the tenant to comply, nothing 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 raised by the
c         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 be made
D         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 a conditional order
          directing the tenant to place the landlord in possession of
E         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.
          6. While exercising discretion for affording the tenant an
F         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 month by month
          during the pendency of the proceedings."
G
         19. The decision in Rakesh Wadhawan 1 has been affirmed
    by a 3-Judge Bench decision of this Court in the case of Vinod.
    Kumar v. Prem Lata2 •
          20. Mr. Rishi Malhotra, learned counsel for the tenant
H 2. (2003) 11 sec 397.
        HARJIT SINGH UPPAL v. ANUP BANSAL                    959
                  [R.M. LODHA, J.]

 argued that the High Court was in error in setting aside the A
order of the Appellate Authority whereby matter was remanded
to the Rent Controller for re-fixation of the provisional rent. He
would submit that the Appellate Authority after considering the
bank statements submitted by the tenant held that the landlord
had concealed various payments which were tendered by the B
tenant. He referred to the finding of the Appellate Authority that
the Rent Controller did not apply her mind while fixing the
provisional rent and accepted the figures s.ubmitted by the
landlord in a mechanical manner without considering the
particulars of payment of rent furnished by the tenant. He argued C
that since the order dated June 11, 2009 determining the
provisional rent was patently illegal, the Appellate Authority did
not commit any error in upsetting that order in the appeal
preferred by the tenant.
       21. Dr. Rajeev Dhawan, learned senior counsel for the 0
 landlord, on the other hand, in support of the High Court's order,
 made the following submissions : {i) the order determining
 provisional rent is a foundational order and not an interlocutory
 order; such order could have been challenged in appeal under
 Section 15( 1){b) of the 1949 Rent Act within 15 days from the
 date of passing that order and in no other way; {ii) in the appeal E
 challenging the eviction order dated April 7, 2010, the order
 determining the provisional rent could not have been
challenged and such challenge was not maintainable; (iii) the
only contention that was raised by the tenant before the Rent
 Controller was that he had invested huge amount of Rs. F
58,98,370/- by raising loan from a bank and the said amount
was liable to be adjusted in the arrears of rent; there was no
contention raised about the payment of Rs. 37,00,950/- having
been made towards rent from April, 2007 to the landlord; and
(iv) the whole conduct of the tenant had been to prolong the G
litigation and it was to achieve this objective that the tenant
continued to make. applications one after the other before the
Rent Controller which could not be legally maintained and were
frivolous and without merit.
    22. One thing needs to be noticed immediately that             H
    960 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A besides the specific averment made by the tenant in the written
  statement that he has paid Rs. 37,00,950/- to the landlord
  towards rent from April 2007 and no rent was due and payable
  by him, in his affidavit dated June 6, 2009, the tenant gave the
  details of the payment of Rs. 37,00,950/- having been made
8 to the landlord from April, 2007. The affidavit contains the
  cheque numbers, the dates on which such cheques were
  issued and the amount of cheques. Dr. Rajeev Dhawan,
  learned senior counsel for the landlord did not dispute the
  receipt of the copy of the affidavit dated June 6, 2009 by the
  landlord on June 11, 2009 before the matter was heard and
C considered by the Rent Controller for determination of the
  provisional rent.
        23. Curiously, the order dated June 11, 2009, whereby the
  provisional rent was determined by the Rent Controller, does
  not show any consideration of the affidavit dated June 6, 2009
0 filed by the tenant.

       24. The tenant was not satisfied with the order dated June
  11, 2009 since the Rent Controller failed to consider the amount
  of Rs. 37,00,950/-which he claimed to have paid to the landlord
E towards rent for the period from April, 2007 and, therefore, he
  made an application on September 7, 2009 for recalling the
  order dated June 11, 2009. This application was decided on
  April 7, 2010 and by the same order, the eviction order was
  passed against the tenant.
F      25. Section 15(1)(b) of the 1949 Rent Act provides, to a ·
  person aggrieved by an order passed by the Rent Controller,
  a remedy of appeal. The Section provides for limitation for filing
  an appeal from that order and also the forum to which such
  appeal would lie. The provision, for maintaining the appeal,
  does not make any difference between the final order and
G interlocutory order passed by the Rent Controller in the
  proceedings under the 1949 Rent Act. There is no specific
  provision in the Section that if a party aggrieved by an
  interlocutory order passed by the Rent Controller does not
  challenge that order in appeal immediately, though provided,
H and waits for the final outcome, whether in the appeal
          HARJIT SINGH UPPAL v. ANUP BANSAL                  961
                    [RM. LODHA, J.]

 challenging the final order of the Rent Controller, the           A
 correctness of the interlocutory order from which an appeal lay
 could or could not be challenged in the appeal from the final
 order.
      26. The observations made by the Privy Council more than
 a century and five decades back in Maharajah Moheshur Sing        B
 v. The Bengal Govemment3 deserve to be recapitulated. The
 Privy Council stated:
       • ......... We are not aware of any law or Regulation
       prevailing in India which renders it imperative upon the
       suitor to appeal from every interlocutory Order by which he C
       may conceive himself aggrieved, under the penalty, if he
       does not so do, of forfeiting for ever the benefit of the
       consideration of the appellate Court. No authority or
       precedent has been cited in support of such a proposition,
      and we cannot conceive that anything would be more D
      detrimental to the expeditious administration of Justice than
      the establishment of a rule which would impose upon the
      suitor the necessity of so appealing; whereby on the one
      hand he might be harassed with endless expense and
      delay, and on the other inflict upon his opponent similar E
      calamities. We believe there have been very many cases
      before this Tribunal in which their Lordships have deemed
      it to be their duty to correct erroneous interlocutory Orders,
      though not brought under their consideration until the whole
      cause had been decided, and brought hither by appeal for F
      adjudication."
     27. It is appropriate that some of the provisions of the
Code of Civil Procedure, 1908 (for short 'Code') are noticed
for consideration of the question raised before us. Sections 97,
104 and 105 of the Code read as under :                            G
      "97. Appeal from final decree where no appeal from
      preliminary decree. - Where any party aggrieved by a
      preliminary decree passed after the commencement of this
      Code does not appeal from such decree, he shall be
3.   (1859) 7 Moore's Indian Appeals 283.                          H
    962     SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R


A         precluded from disputing its correctness in any appeal
          which may be preferred from the final decree.
          104. Orders from which appeal lies. - (1) An appeal shall
          lie from the following orders, and save as otherwise
          expressly provided in the body of this Code or by any law
B         for the time being in force, from no other orders:-
          (ff) an order under section 35A;
          (ffa) an order under section 91 or se~tion 92 refusing leave
          to institute a suit of the nature referred to in section 91 or
c         section 92, as the case may be;
          (g) an order under section 95;
          (h) an order under any of the provisions of this Code
          imposing a fine or directing the arrest or detention in the
          civil prison of any person except where such arrest or
D         detention is in execution of a decree;
          (i) any order made under rules from which an appeal is
          expressly allowed by rules;
          Provided that no appeal shall lie against any order
E         specified in clause (ff) save on the ground that no order,
          or an order for the payment of a less amount, ought to
          have been made.
          (2) No appeal shall lie from any order passed in appeal
          under this section.
F         105. Other orders. - (1) Save as otherwise expressly
          provided, no appeat shall lie from any order made by a
          Court in the exercise of its original or appellate jurisdiction;
          but where a decree is appealed from, any error, defect or
          irregularity in any order, affecting the decisi0n of the case,
G         may be set forth as a ground of objection in the
          memorandum of appeal.
          (2) Notwithstanding anything contained in sub-section (1 ),
          where any party aggrieved by an order of remand from
          which an appeal lies does not appeal therefrom, he shall
H         thereafter be precluded from disputing its correctness."
          HARJIT SINGH UPPAL v. ANUP BANSAL                    963
                    [R.M. LODHA, J.]
      28. The Calcutta High Court in Nanibala Dasi and Another A
 v. /chhamoyee Dasi and others4 was concerned with a
 question as to whether the challenge to preliminary decree in
a suit for partition could be made in a case where the final
decree in the suit had already been made by the Subordinate
Judge and no appeal against the final decree was then or has B
at any time been filed. The High Court referred to some of its
earlier decisions, namely, Baikuntal Nath Dey v. Nawab
Sa/imulla Bahadur5, Mackenzie v. Narsingh Sahai6 ,
Khirodamoyi Dasi v. Adhar Chandra Ghose7, Sadhu Charan
Dutta v. Haranath Dutta 6, Kuloda v. Ramanand9 and held that
the right of appeal from interlocutory order ceases after disposal C
of the suit and that rule is equally applicable to suits in which
there is first a preliminary decree and ultimately a final decree.
    29. On the other hand, in Syed Ishak Syed Farid and
another v. Kunjbihari Singh Sirdhujasingh Kshatriya 10, the
                                                                      0
Division Bench of Nagpur High Court held as under :
            "The contention on the other side is that the
      Legislature has conferred a right of appeal against, an
      order refusing to extend time, and that an aggrieved party
      must be afforded an opportunity of exercising the right so      E
      conferred, especially as there is danger of it being held
      hereafter that as the orders in question were appealable,
      matters decided in them will be final in the absence of an
      appeal, and that they cannot be re-agitated hereafter in an
      appeal against the final decree. The learned Counsel
      urging this contention relied on the analogies of preliminary   F
      decrees and of orders of remand against a decision of a


4.   AIR 1925 Cal 218.
5.   (1907) 6 C.L.J. 647.                                             G
6.   (1909) 36 Cal 762.
7.   (1912) 18 C.L.J. 321.
8.   (1914) 20 C.W.N. 231.
9.   A.l.R. 1921 Cal. 109.
10. A.LR. 1940 Nagpur 104.                                            H
    964     SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A         trial Court on a preliminary point. S. 105(1), Civil P.C., is
          in these terms:


          A right of appeal is a valuable right, and we do not think
          that the Legislature after conferring it in such express terms
B
          in Section 104 would take it away by implication in a large
          class of cases in the next Section. An enabling Section
          which confers additional rights in certain cases cannot, we
          think, be read as taking away rights which have already
          been expressly conferred, especially when they are such
c         valuable and cherished rights as those of appeal. We also
          feel that if a right of appeal is once conferred, then in the
          absence of anything curtailing it, full opportunity must be
          afforded to an aggrieved party to exercise it. If he does
          exercise it and succeed, then any subsequent
D         proceedings which militate against any rights he obtains
          in the appeal fall to the ground.


          when the law gives a person two remedies he is entitled
          to avail himself of either of them unless they are
E         inconsistent."
                                           [Emphasis supplied by us]
       30. The order passed by the Rent Controller determining
  the provisional rent in an eviction petition based on the ground
F of default in a situation where the tenant fails to comply with that
  order may be a foundational order for an order of eviction that
  follows but nevertheless such order is an interlocutory order as
  that order does not determine the principal matter finally; it is
  only the order on subordinate matter with which it deals.
G     31. Section 15(1)(b) of 1949 Rent Act provides that a
  person aggrieved by an order passed by the Rent Controller
  may prefer appeal to the Appellate Authority within the time
  prescribed.therein; it does not say that if any aggrieved person
  by an interlocutory order passed by the Rent Controller from
H which an appeal lies does not appeal therefrom, he shall
        HARJIT SINGH UPPAL v. ANUP BANSAL                       965
                  [R.M. LODHA, J.]

 thereafter be precluded from disputing its correctness. There         A
 is no provision in Section 15(1)(b), a provision like Section 105
 (2) and Section 97 of the Code.
       32. We find no impediment for an aggrieved person, on
 reading Section 15(1)(b) of the 1949 Rent Act, that an
 interlocutory order which had not been appealed though an             B
 appeal lay, could not be challenged in an appeal from the final
 order. In our opinion, Section 15(1)(b) does not make it
 imperative upon the person aggrieved to appeal from an
 interlocutory order and, if he does not do so, his right gets
 forfeited when he challenges the final order.                         c
     33. It is true that an order of eviction follows as a matter
of course if there is non-compliance of the order determining
the provisional rent but when tenant challenges the order of
eviction and therein also challenges the order of fixation of
provisional rent - the order of eviction, in its nature, being D
dependant on the correctness of the order fixing the provisional
rent and there being no indication to the contrary in Section
15(1)(b)- it must be open to the Appellate Authority to go into
correctness of such provisional order when put in issue.
      34. In view of the above legal position, we shall now advert     E
 to the facts of the present case. The tenant at the first available
 opportunity i.e., in his written statement filed on April 24, 2009
averred that he has been paying the rent to the landlord by
cheques and from April 1, 2007, he has paid rent of Rs.
37,00,950/- to the landlord. As a matter of fact, the tenant by        F
his counter claim prayed for refund of the excess payment
made to the landlord. Then he filed his affidavit dated June 6,
2009 setting out the details of the payments made towards rent
from April, 2007.
   ·· 35. The landlord relied upon his ledger account to show          G
that the tenant was in arrears of rent. According to the landlord,
he received the payment as under:-



                                                                       H
    966 ·SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A        Date          Debit          Credit
         9.4.2007      173643.75p     -
         26.4.2007     -              163250
         26.4.2007     -              10000

B
         9.5.2007      173643.75p     -
         9.6.2007      173643.75p     -
         9.7.2007      173643.75p     -
         18.7.2007     -              163250
         18.7.2007     -              10000
c        9.8.2007      182325.94p     -
         9.9.2007      182325.94p     -
         27.9.2007     -              10000
         28.9.2007     -              163250
D        9.10.2007     182325.94p     -
         27.10.2007    -              10000
         8.11.2007     -              171900
         8.11.2007     -              10000
         9.11.2007     182325.94      -
E
         1.12.2007     -              163250
         3.12.2007     -              10000
         9.12.2007     182325.94      -
         10.12.2007    -              10000
F        11.12.2007    -              171900
         9.1.2008       182325.94p    -
         9.2.2008       182325.94p    -
         9.3.2008       182325.94p    -
G        9.3.2008       182325.94p    -
         1.4.2008      -              Opening
                                      Balance
                                      450000
                                      (security amt.)
H         15.4.2008    -              528400
            HARJIT SINGH UPPAL v. ANUP BANSAL                          967
                      [R.M. LODHA, J.]

            15.4.2008           450000 (amt.                                 A
                                given through
                                Cheque)             -
            9.5.2008            182325.94p          -
            13.5.2008           -                   181900
            9.6.2008            182325.94p          -                        B
            12.6.2008       202900
                            (amount given
                            through Cheque)     -
            12.6.2008       350000 (amo-
                            uni given through
                                                                             c
                            Cheque                  -
           12.6.2008        450000 (am-
                            ount given
                            through
                            Cheque)             -                            D
           9.7.2008         182325.94p          -
           9.8.2008         150000              -
           9.9.2008         150000              -
           9.10.2008        150000                                           E
           21.8.2008        -                   40000
           22.8.2008        -                   60000
           9.11.2008        150000              -
           Total            49,35,386-28        24,99,000/-
                                                                             F
     36. On the other hand, the tenant in his affidavit dated June
6, 2009 gave the details of the payments made to the landlord
towards rent from the month of April, 2007 as under :

                   Cheque No.       "Dated                   for Rs.         G
    i)             011862           30.3.2007           1,63,250.00
    ii)            011861           30.3.2007             10,000.00
    iii)           011863           25.4.2007           1,63,250.00
    iv)            011864           25.4.2007            10,000.00
                                                                             H
    968   SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A      v)          011868         16.7.2007         1,63,250.00
       vi)         011867         16.7.2007           10,000.00
       vii)        011885         24.9.2007           10,000.00
       viii)       011886         24.9.2007         1,63,250.00
B      ix)         011887         25.10.2007        1,71,900.00
       x)          011888         25.10.2007          10,000.00
       xi)         011889         6.11.2007         1, 71,900.00
       xii)        011890         6.11.2007            10,000.00
       xiii)       011892         30.11.2007        1,63,250.00
c      xiv)        011893         3.11.2007            10;000.00
       xv)         011894         5.12.2007            10,000.00
       xvi)        011895         5.12.2007         1,71,900.00
        xvii)      4789           11.4.2008         5,28,400.00
D       xviii)     4790           18.4.2008         5,45,700.00
        xix)       4791           10.5.2008         1,81,900.00
        xx)        4794           12.6.2008         2,75,000.00
        xxi)       4795           12.6.2008         3,25,000.00
        xxii)      4796           13.6.2008         4,00,000.00
E
        xxiii)     4797           13.6.2008         1,80,000.00
        xxiv)       116150        20.8.2008            60,000.00
        xxv)        116151        20.8.2008            40,000.00
        xxvi)       116152        20.8.2008            50,000.00
F                                 Total Rs.        37,00,950.00

        37. The Rent Controller, apparently, did not consider the
   statement given by the tenant at all and relied upon the ledger
   account submitted by the landlord and in his order dated June
G 11, 2009 held that an amount of Rs. 27 ,84,875.04 was due and
   payable by the tenant towards the arrears of rent. Since the Rent
   Controller failed to even consider the statement of payment
 · tendered by the tenant, the tenant made an application for recall
   of the order dated June 11, 2009. The Rent Controller
H dismissed the application for recall and two other applications
        HARJIT SINGH UPPAL v. ANUP BANSAL                     969
                  [R.M. LODHA, J.]

made by the tenant by a common order and also passed an              A
order for eviction of the tenant on April 7, 2010 as the tenant
failed to comply with the order dated June 11, 2009
determining the provisional rent.
     38. The tenant challenged the order dated April 7, 2010
and also the order dated June 11, 2009 in appeal. The Appellate      B
Authority considered the material that was available before the
Rent Controller for determination of rent, particularly, the two
statements, one filed by the landlord and the other by the tenant,
and on comparison thereof found that the entire payments
made by the tenant have not been reflected in the ledger             c
account submitted by the landlord. This is what the Appellate
Authority observed :
     "Thus, it is apparent that the entire payments made by the
     respondent/tenant are not reflected in the account books
     of the respondent/landlord. The appellant/tenant has also D
     raised a plea that he had made the payment of Rs.
     2,75,000/- to the respondent, vide cheque No. 4794 dated
     12.6.2008, Rs. 3,25,000/- vide cheque No. 4795 dated
     12.6.2008, Rs. 4,00,000/- vide cheque No. 4796 dated
     12.6.2008 and Rs. 1,80,000/- vide cheque No. 4797 dated E
     12.6.2008. The said cheques were the bearer cheques
     and were allegedly got encashed by the Manager of the
     respondent. However, this Court need not enter into the
    controversy as to if the payment of the bearer cheques,
    was received by the respondent/landlord or not as it would
    be for the Ld. Rent Controller to consider this question.
                                                                  F
    However, the assessment order dated 11.6.2009 passed
    by the Ld. Rent Controller is patently illegal and erroneous.
    From the perusal of the said order, it is made out that Ld.
    Rent Controller did not apply his mind and accepted the
    figures mentioned by the respondent/landlord in the G
    rejoinder in the mechanical manner. The Ld. Rent
    Controller has not mentioned anything that as to how the
    amount of about Rs. 14,52,900/- paid by the respondent/
    landlord to the tenant was being treated as arrears of rent.
    The Ld. counsel for the respondent could be claimed as H
    970     SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.


A         arrears of rent [sic]. He tried to wriggle out of the situation
          by submitting that the tenant had agreed to repay the said
          amount with the rent. However, even on this the said
          amount could not be treated as arrears of rent. Moreover,
          the amount of Rs. 5,45,700/- which was received by the
B         respondent/landlord from the tenant even as per the
          statement of account pertaining to the bank account of the
          respondent was not adjusted. The Ld. Rent Controller did
          not consider these aspects of the case at all."
          39. The Appellate Authority held that the order dated June
c 11, 2009 was patently illegal; the tenant was called upon to
  tender much more amount than was actually due as arrears of
  rent and, accordingly, by its order dated June 10, 2010 set
  aside the orders dated April 7, 2010 and June 11, 2009 and
  remanded the matter to the Rent Controller with a direction to
  pass fresh order of provisional assessment of arrears of rent,
0
  interest and costs of the proceedings as contemplated by
  Section 13(2)(i) proviso of the 1949 Rent Act.
        40. The High Court, however, held that as tenant did not
  avail of his remedy to challenge the order fixing provisional rent
E during the period between the date of the order and date fixed
  for payment, the Appellate Authority could not have gone into
  the merits of such determination and, accordingly, set aside the
  order of the Appellate Authority. In our view, the High Court fell
  into grave error in what it held. The legal position, in our opinion,
  is this: Where a tenant does not challenge the order of the
F fixation of provisional rent passed under Section 13(2)(i) proviso
  in appeal under Section 15(1)(b) and also fails to comply with
  that order, the order of eviction must follow as per the provisions
  contained in the 1949 Rent Act but when the tenant challenges
  the order of eviction in appeal and therein also challenges the
G order determining the provisional rent, it is not open to the
  Appellate Authority to refuse to consider the legality and validity
  of the order determining the provisional rent on the ground that
  the correctness of such order cannot be examined as no appeal
  was filed from that order though an appeal lay therefrom.
H
         HARJIT SINGH UPPAL v. ANUP BANSAL                     971
                   [R.M. LODHA. J.]

         41. On the facts of the present case, the Appellate Authority A
. did not commit any error in calling upon the Rent Controller to
   determine the arrears of rent, interest and costs afresh as the
   tenant's statement of payments towards rent from April, 2007
  was not at all referred to and considered by the Rent Controller.
   If the order of the High Court is allowed to stand, it would B
  occasion in manifest injustice and result in miscarriage of
  justice inasmuch as the tenant would be thrown out of the leased
  premises although he may not have been in arrears of rent. In
 the circumstances, re-determination of arrears of rent, interest
 and costs by the Rent Controller, as dlrected by the Appellate
 Authority, would subserve the ends of justice. If on re- C
 determination, the tenant is found in arrears of rent and does
 not deposit/pay the amount as determined by the Rent
 Controller in time, as may be directed, obviously he would suffer
 the order of eviction.
      42. In the result, the appeal is allowed. The order dated      D
September 23, 2010 passed by the High Court is set aside
and the order dated June 10, 2010 passed by the Appellate
Court, S.A.S Nagar (Mohali) is restored. The parties shall bear
their own costs.
                                                                     E
N.J.                                            Appeal allowed.