JUDGMENT

R.M. Lodha, J.

1. Leave granted.

2. The main question for determination in this appeal, by special leave, is: If a tenant does 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 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 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. 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 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 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 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 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 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 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. 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 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.

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.

10. By yet another application, the tenant annexed copies of cheques which were duly encashed by the Manager of the landlord. He claimed adjustment of those payments while assessing provisional rent.

11. The landlord subm