Sukhwant Kaur vs Saroj Bhalla And Another
2023 Latest Caselaw 5742 P&H

                                                                                                    2023:PHHC:061082

                                   CR-9568-2018 (O&M)                                                                 1


                                   206

                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                                CHANDIGARH

                                                                              CR-9568-2018 (O&M)
                                                                              Reserved on 18.04.2023
                                                                              Date of decision : 29.04.2023


                                   Sukhwant Kaur                                                        ... Petitioner(s)

                                                                           Versus

                                   Saroj Bhalla & Anr.                                                ... Respondent(s)



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                                   Present :        Ms. Riffi Birla, Advocate for the petitioner.
                                                    Mr. Shiv Kumar, Advocate for the respondents.



                                   ALKA SARIN, J.

1. The present revision petition has been preferred against the

orders dated 24.09.2018 and 29.10.2018 passed by the Authorities below

ordering the ejectment of the tenant-petitioner from the premises in dispute.

2. The brief facts relevant to the present lis are that the

respondents filed a petition under Section 13 of the East Punjab Urban Rent

Restriction Act, 1949 (hereinafter referred to as the 'Rent Act') for eviction

of the tenant-petitioner from the residential premises described in detail in

the ejectment petition. It was averred in the ejectment petition that the

landlady-respondent No.1 was the registered owner of a house vide sale

deed dated 25.05.1979 and that the premises had been let out to the tenant-

petitioner at a monthly rent of Rs.800/- about 25 years ago which, at a later

YOGESH SHARMA 2023.04.29 11:49 stage, was enhanced to Rs.900/- per month. Respondent No.2 - Sudarshan I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

Bhalla - had been collecting rent from the tenant-petitioner against receipts.

The ejectment petition was filed on the ground of arrears of rent from

01.07.2013 and on the ground of bonafide personal necessity. The bonafide

personal necessity as stated in the ejectment petition was that the

respondents were residing in a small residential house of approximately 3-½

marlas owned by respondent No.2 in a narrow street where there was no

facility of parking any automobile. It was further averred that the

respondents were both of advance age and always needed either automobile

or rickshaw to move out from their house. It was further the case that the

total accommodation of their house consisted of one room and a small store

on the ground floor and similar accommodation on the first floor where the

married son of the respondents was residing with his wife and daughter. It

was further the case that the respondents have two other sons and a married

daughter who were residing at different places and were frequently visiting

the respondents. On notice, the tenant-petitioner appeared and contested the

ejectment petition. The relationship of landlord and tenant was admitted.

The rate of rent of Rs.900/- per month was also admitted. However, it was

stated that the tenant-petitioner was regularly paying the rent, however, no

receipts were issued. The Rent Controller provisionally assessed the rent

vide order dated 24.08.2018. The said provisional assessment order was

passed in the presence of both the counsel. On the same day i.e. 24.08.2018,

while passing the order, 24.09.2018 was fixed as the date for payment of the

provisional rent as assessed. On 24.09.2018 a short order was passed which

reads as under :

"Rent not tendered by the respondent. Arguments

YOGESH SHARMA 2023.04.29 11:49 heard: Vide my separate detailed order of even date, I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

ejectment order with regard to the demised premises is

hereby passed against the respondent and the

respondent is directed to hand over the vacant physical

possession of the demised premises to the applicants

within a period of three months from today failing which

the applicants shall be at liberty to get the demised

premises vacated through the process of the court. No

order as to costs. Memo of costs be prepared and file be

consigned to the Judicial Record Room, Ferozepur."

3. Subsequently, the order of ejectment was passed on the same

very day i.e. 24.09.2018. It has come on the record that a copy of the order

dated 24.08.2018 was applied for by the counsel for the tenant-petitioner on

26.09.2018 which was delivered on 05.10.2018. On 10.10.2018 an appeal

was filed before the Appellate Authority challenging the order of ejectment

dated 24.09.2018. The appeal was dismissed vide order dated 29.10.2018.

Hence, the present revision petition.

4. Learned counsel for the tenant-petitioner has contended that the

counsel for the tenant-petitioner never put in appearance in the case on

24.09.2018 before the Rent Controller as he was appearing in Fazilka on the

said date. It is further the contention that the date noted by the counsel on the

cover of the file was 08.10.2018 and hence there was no question of the

counsel for the tenant-petitioner appearing before the Rent Controller in

Ferozepur on 24.09.2018. It is further the contention of learned counsel that

an affidavit to this effect has also been filed that the counsel for the tenant-

petitioner never appeared before the Rent Controller on 24.09.2018. YOGESH SHARMA

5. Per contra, learned counsel for the respondents has contended 2023.04.29 11:49 I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

that the story put-forth by the tenant-petitioner is patently false inasmuch as

the counsel was very much present on the day the order assessing the

provisional rent was passed and thereafter on the day the ejectment order

was passed. It is further the contention of the counsel that a copy of the order

dated 24.09.2018 was applied for on 26.09.2018 which was delivered on

05.10.2018. Had the counsel for the tenant-petitioner not appeared on

24.09.2018, there was no occasion for him to apply for a copy of the order

on 26.09.2018 and he would have waited till the date allegedly noted by

him. Learned counsel would further contend that an appeal was preferred

before the Appellate Authority on 10.10.2018, however, neither any

application for review nor any other application was filed before the Rent

Controller bringing to the notice of the Rent Controller that the presence had

wrongly been marked and that the counsel was actually not present on the

said date before the Rent Controller.

6. I have heard learned counsel for the parties and with their able

assistance have gone through the record of the present case.

7. The order assessing the rent provisionally was passed on

24.08.2018 in the presence of both the counsel. The case was adjourned to

24.09.2018 for payment of the provisional rent. On 24.09.2018 the rent was

not tendered and hence the ejectment of the tenant-petitioner was ordered

vide order dated 24.09.2018. An appeal was preferred by the tenant-

petitioner wherein it was argued that the tenant-petitioner had been paying

rent but the respondents had not been issuing any receipt. It was further the

contention that the date fixed for tendering the rent was 08.10.2018 and that

was the date noted by the counsel and not 24.09.2018 and for that reliance

YOGESH SHARMA 2023.04.29 11:49 was placed upon the photocopy of the cover of the file wherein the date of I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

08.10.2018 had been noted. The Appellate Authority dismissed the appeal.

The argument raised by learned counsel for the tenant-petitioner that the

counsel for the tenant-petitioner never put in appearance on 24.09.2018 and

that his presence has wrongly been marked was not the ground argued

before the Appellate Authority. Even the grounds of appeal appended with

the present petition reveal that the ground taken is that the case was

adjourned to 24.09.2018 which was a Monday and the counsel for the

tenant-petitioner never took any date except Tuesday or Friday in cases

pending at Ferozepur and that as per the record of the counsel the tenant-

petitioner was to appear on 08.10.2018 and not 24.09.2018. An affidavit has

also been filed before this Court by the counsel concerned stating that he did

not appear before the Rent Controller on 24.09.2018. However, this Court is

not inclined to disbelieve the Rent Controller. Accepting the affidavit of the

counsel would mean that this Court is disbelieving the Rent Controller

without this plea having been raised before the Appellate Authority or even

the Rent Controller. Learned counsel for the tenant-petitioner has not been

able to show anything on the record to even remotely point out any

animosity that the Rent Controller may have had towards the tenant-

petitioner or her counsel. There is no reason why the Rent Controller would

have marked the presence of the counsel had he actually not appeared. Be

that as it may, on 24.08.2018 while assessing the provisional rent in the

presence of the counsel for the tenant-petitioner the date given for tendering

the provisional rent assessed was 24.09.2018. Simply by averring that the

date noted was 08.10.2018 and hence that was the date the rent was to be

tendered cannot be accepted. Further, though it has been argued that the

YOGESH SHARMA 2023.04.29 11:49 counsel for the tenant-petitioner took dates of only Tuesdays and Fridays of I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

his cases in Ferozepur and that 24.09.2018 was a Monday, the date allegedly

noted by the counsel, as argued, was 08.10.2018 which incidently was also a

Monday. How this date of 08.10.2018 (Monday) was agreed to by the

counsel when he did not appear in Ferozepur Courts on any other days

except Tuesdays and Fridays remains unexplained. Learned counsel for the

tenant-petitioner has candidly admitted that after the passing of the

ejectment order neither any application for review nor any other application

was filed before the Rent Controller bringing to the notice of the Rent

Controller that the presence had wrongly been marked and that the counsel

was actually not present on the said date. Having failed to approach the

Rent Controller as well as to argue the said point before the Appellate

Authority, the argument now raised cannot be accepted.

8. Hon'ble Supreme Court in the case of Rakesh Wadhawan vs.

M/s Jagdamba Industrial Corporation & Ors. [2002(1) RCR (Rent) 514]

has held as under :

"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

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 Restriction Act, 1949 casts an obligation on the

Controller to make an assessment of (i) arrears of rent,

YOGESH SHARMA 2023.04.29 11:49

(ii) the interest on such arrears, and (iii) the cost of I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

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 '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.

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 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 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 tenant to place the landlord

in possession of the premises by giving a reasonable

YOGESH SHARMA 2023.04.29 11:49 time to the tenant for paying or tendering the deficit I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

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 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."

9. In the case of Rajan alias Raj Kumar vs. Rakesh Kumar

[2010(2) PLR 201], it has been held as under :

"13. This Court is of the view that the ratio of judgment

in Rakesh Wadhawan's case (supra) leaves no manner of

doubt that the provisional rent and other ancillary

charges assessed by the Rent Controller had to be

deposited by the tenant on the next date of hearing

alongwith arrears, interest and costs etc., as may be

determined by the above said authority. The 'first date of

hearing' has also been interpreted to mean, the first date

of hearing after determination of provisional rent and

other expenses by the Rent Controller. A reading of

conclusions drawn in para No.30 of the judgment in

Rakesh Wadhawan's case (supra) leaves no doubt that if

after determination of the provisional rent, a tenant fails

to deposit the same, nothing remains to be done and an

YOGESH SHARMA 2023.04.29 11:49 order of ejectment of a tenant has to be passed. The I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

language of conclusion No.4 in the said para is very

clear and needs no further interpretation. The Court is

further of the view that the benefit of conclusions No.5

and 6 would become available to a tenant only on his

making a deposit of the provisional rent and other

ancillary charges determined by the Rent Controller and

not otherwise. It was implicitly made clear that it is the

bounden duty of the tenant to deposit the provisional

rent determined by the Rent Controller, otherwise it will

entail the tenant's ejectment from the premises in

dispute. This Court feels that if a tenant is dissatisfied

with the interim order passed by the Rent Controller, he

has an opportunity to challenge the same before the date

fixed for payment, in the higher forum."

10. In the case of Mrs. Birinder Khullar vs. Maninder Singh

[2011(1) RCR (Rent) 307], it has been held as under :

"19. Thus, after considering the facts of this case and

law applicable thereto, the first question is decided in

affirmative and it is held that the Rent Controller has no

jurisdiction to order extension of time of payment of

provisional rent by the tenant. Insofar as the second

question is concerned, that too is decided in favour of

the petitioner herein because even if it is assumed that

the application for re-assessment was a review

application, the Rent Controller had no jurisdiction to

YOGESH SHARMA 2023.04.29 11:49 grant further time to the tenant for tendering the I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

provisional rent when he did not agree with him on his

application for review. In that circumstance, he was left

with no other alternative but to simply dismiss the

application as he had actually done in the impugned

order but faulted by granting time to the tenant to make

the payment of arrears of rent beyond the date, which

was given initially when the provisional rent was fixed."

11. In the case of Sat Paul Jindal vs. Smt. Sushma [2011 (45)

RCR (Civil) 19], it has been held as under :

"13. Admittedly, the provisional rent was assessed by

the Rent Controller on 28.3.2011 and the tenant was

directed to make the payment by 29.3.2011. The

aforesaid order of provisional assessment was never

challenged by the tenant within the statutory period as

provided and in this view of the matter since the tenant

had committed the default by not paying the

provisionally assessed rent upto the stipulated date, the

Rent Controller had no jurisdiction to extend the time

for tendering of provisionally assessed rent. If there is a

fault on the part of the tenant, the eviction order has to

follow, the order dated 22.4.2011 granting opportunity

to the tenant to make the payment of provisionally

assessed rent cannot be sustained and is liable to be

quashed, to that extent."

12. From a perusal of the above reproduced extracts of judicial

YOGESH SHARMA 2023.04.29 11:49 pronouncements, there is no manner of doubt that the first date after I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh 2023:PHHC:061082

assessment of rent is the date when the tenant has to tender the rent. On

failure to do so, the Rent Controller has no jurisdiction to extend the period

and the consequences as laid down in Rakesh Wadhawan's case (supra)

would necessarily follow.

13. The order provisionally assessing the rent was passed on

24.08.2018 and 24.09.2018 was fixed as the date for tendering the rent. On

failure of the tenant-petitioner to deposit the rent on or before the said date

i.e. 24.09.2018, nothing further remained and order of eviction had to follow.

14. In view of the above, I do not find any illegality or infirmity in

the orders passed by both the Authorities below. The present revision

petition, which is wholly devoid of any merit, is accordingly dismissed. The

tenant-petitioner would be at liberty to withdraw the amount directed to be

deposited by this Court and invested in an FDR vide order dated 04.02.2019.

15. Dismissed. Pending applications, if any also stand disposed off.

                                   29.04.2023                                    ( ALKA SARIN )
                                   Yogesh Sharma                                     JUDGE

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

YOGESH SHARMA 2023.04.29 11:49 I attest to the accuracy and integrity of this judgment/order.

Punjab and Haryana High Court, Chandigarh