Judgment

B. C. RAY, J. :- This appeal by special leave is directed against the judgment and order passed on 27th February, 1973 in Civil Revision No. 895 of 1972 by the High Court of Punjab and Haryana whereby the revision case was allowed reversing the judgment and order of the appellate authority and allowing the application for ejectment. The tenant-appellant was granted three months time to vacate the shop and was also directed to deposit arrears of rent, if any, within one month from the date of the order. He was also directed to deposit advance rent for three months on the date of the order failing which he will be evicted on the expiry of one month.

2. The appellant is a tenant in respect of a room forming part of the property unit No. B-VI-33(old) and B- IX- 148(New), Chaura Bazar, Ludhiana, which has been rented on a monthly rental of Rs. 23/- by the landlord Smt. Goran Devi on the basis of rent deed dated 7th July, 1967 for a period of three months. After the expiry of the term of the tenancy, he continued in possession of the suit premises as a statutory tenant under Smt. Guran Devi. Smt. Guran Devi however, gifted away this property in favour of the Respondent on February 13, 1968 and from that date the appellant became a tenant under the respondent. The ejectment was sought on the ground of default in payment of rent from 13-2-1968 till the date of filing of the application for ejectment in July, 1969 under S. 13 of East Punjab Urban Rent Restriction Act, 1949. The summons of this application was served on the tenant-appellant and the returnable date was fixed for 26-6-1969. On that date, the appellant appeared before the Rent Controller, Ludhiana with his counsel and prayed for adjournment for filing written statement. The case was adjourned to 2-7-1969. On that date the written statement was filed and the tenant tendered a sum of Rs. 336/- on account of arrears of rent from 13-2-1968 to 12-6-1969 together with Rs. 15/- as interest and Rs. 25/- as costs as fixed by the Rent Controller. The landlord accepted the amount under protest. One of the issues framed in the said case was whether the tender was a valid tender within the meaning of proviso to S. 13(2) of East Punjab Urban Rent Restriction Act, 1949.

3. The Rent Controller after hearing the parties found that the tenant-appellant having failed to tender the arrears of rent and interest at 6% per annum on such arrears together with the costs of the application, on 26-6-1969 which according to him was the first hearing of the application for ejectment, the tenant was not entitled to get the protection of S. 13(2)(i) proviso. The Rent Controller repelled the contention made on behalf of the tenant that the said date was not the date of first hearing and that the cost of the application having not been assessed on 26-6-1969, that day cannot be taken as the first day of hearing of the application and the tenant having deposited all the arrears of rent together with interest and costs as assessed on the next date i.e. 2-7-1969 he could not be considered to be a defaulter. In that view of the matter the Rent Controller allowed the application for ejectment and directed the tenant to vacate the premises and to deliver possession to the landlord-petitioner in respect of the room in question within one month of the date of the order.

4. Against this judgment and order the tenant filed an appeal being M.C.A.No. 165/131 of 1970 before the appellate authority Ludhiana under the East Punjab Urban Rent Restriction Act. The appellate authority reversed the order of the Rent Controller by holding that as the Rent Controller failed to discharge his duty in assessing the costs to be deposited by the tenant along with the arrears of rent and interest on 26-6-1969, the tenant cannot be penalised for the mistake of the Court and the deposit that has been made by the tenant on the next date i.e. 2-7-1969 when the cost of the application was assessed by the Rent Controller, should be tr