When the rate of rent is disputed, the Rent Controller must determine the rate based on the evidence presented by the parties.

J.V.Gupta, J.

1. This is tenants petition in which the dispute is with regard to the rate of rent. The landlord claimed the rent @ Rs. 1200/- per annum excluding tax, whereas according to the tenant, the rent was @ Rs. 400/- per annum. However, in order to avoid his ejectment, he tendered the arrears of rent on the first date of hearing @ Rs. 1200/- per annum as claimed by the landlord. At the same time he filed his written statement a day earlier to the tender in which he specifically pleaded that the rate was Rs. 400/- per annum and not Rs. 1200/- per annum as claimed by the landlord. The then learned Rent Controller framed the issues and allowed the parties to lead evidence. However, while deciding the issues, he did not discuss the evidence but simply on the ground that the rent was tendered @ Rs. 1200/- per annum, found that the same was the rate of rent of disputed shop. In appeal, the then learned appellate authority (the Deputy Commissioner) also affirmed the finding of the Rent Controller without discussing any evidence vide his order dated 27-2-1977. Dissatisfied with the same, the tenant has filed this petition in this Court.

2. It is contended on behalf of the landlord that once the arrears of rent were tendered by the tenant as claimed by the landlord without any protest then in those circumstances, no enquiry could be made by the Rent Controller as to the rate of rent. In support of his contention he referred to Behari Lal v. Ajudhia Dass 1970 RCR 76 ; 1970 RCJ 671. After hearing the learned counsel for the parties I am of the considered view that admittedly in the present case, the tenant filed his written statement on 7-10-1979 in which he claimed the rent to be Rs. 400/- per annum, whereas the rent was tendered on next day i. e. 8-10-1979. Not only that, even the Rent Controller framed the issues and allowed the parties to lead evidence. In these circumstances, it was the duty of Rent Controller to give its finding after appreciating the entire evidence led by the parties. It was held by this Court in Dial Chand v. Mahant Kapoor Chand 1967 PLR 248 that the proviso to clause (i) of sub-section (2) of section 13 of the East Punjab Urban Rent Restriction Act being for- benefit of the tenant, if he wishes to take advantage of it, he has to comply with it strictly and in case where there is a dispute as to the quantum of rent, he can take one of the three courses. He can under protest make payment or tender of the arrears at the rate claimed by the landlord in the ejectment application and if the rate is found subsequently to be less, he can hope for adjustment of the excess payment. This will only be possible if the rent was determined by the Rent Controller on the evidence led by the parties. Otherwise also, if the arrears of rent are tendered on the first date of hearing as claimed by the landlord but at the same time the rate of rent is disputed by the tenant then in those circumstances it becomes the duty of the Rent Controller to give a specific finding as to the rate of rent after allowing the parties to lead their evidence.

3. In these circumstances, the petition succeeds, both impugned orders are set aside and case is sent back to the Rent Controller, Bhiwani (Shri V. P. Aggarwal) for deciding the matter afresh after hearings both the parties. It may be made clear that since both the parties have led their evidence, no more opportunity will be required to be given to the parties. The parties, have been directed to appear before him on 12th October, 1983. The records of the case be sent back forthwith. Petition succeeds.