Excess rent paid by a tenant to avoid eviction can be adjusted towards rent due under Section 7 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, without any overt act by the landlord within six months from the date of payment of excess amount.

J.M.Tandon, J.

1. Ram Avtar petitioner is in occupation of the shop in dispute at Gurgaon Cantt as a tenant under Anand Sarup Mangla respondent. On September 19, 1975, the respondent filed an ejectment petition against the petitioner for his ejectment from the shop in dispute on the ground of non-payment of arrears of rent at the rate of Rs. 33/- (including Rs. 3/- by way of house tax) for the period from June 1, 1974 to October 31, 1975. The petitioner tendered Rs. 561/- by way of rent, Rs. 34/- by way of interest and Rs. 30/- as costs (total Rs. 625/-) on the first date of hearing. This ejectment petition was dismissed in default on January 27, 1976. On August 23, 1977, the respondent filed another ejectment petition against the petitioner on various grounds including the one relating to the non-payment of arrears of rent for the period from November 1, 1975 to July 31, 1977, at the rate of Rs. 33/- P.M. (including Rs. 3/- as house tax). On the first date of hearing (8.9.1977) the petitioner tendered rent at the rate of Rs. 27.50 P.M. (including Rs. 2.50 as house tax) for the period from April 1, 1976 to September 30, 1977. The petitioner thus tendered Rs. 450/- as rent house tax, Rs. 30/- as interest and Rs. 30/- as costs, assessed by the Court (total Rs. 555/-). No rent was paid for the period from November 1, 1975 to March 31, 1976. The case of the petitioner is that in the first ejectment petition filed by the respondent on September 19, 1975, the later had claimed rent at the rate of Rs. 33/- P.M. whereas the agreed rate of rent was Rs. 27.50 P.M. In order to avoid ejectment on the ground of non-payment of rent, the rent at the rate claimed was tendered. The petitioner thereby paid excess amount of Rs. 5.50 P.M. for 17 months (June 1, 1974 to October 31, 1975). The excess amount thus paid was Rs. 93.50. The excess amount paid could be deducted from the rent due to the respondent-landlord within six months of the date of its payment in terms of Section 8 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereafter `the Act). The petitioner made deduction in terms of Section 7 of the Act to the extent of the excess amount paid in the first ejectment application towards the rent that became due to the respondent with effect from November 1, 1975, onwards. The Rent Controller vide order dated December 30, 1978, allowing the deduction of excess amount already paid by the petitioner to the respondent in the first ejectment application held that the respondent has failed to prove that the petitioner after making the tender of Rs. 555/- was arrears of rent upto the date of the institution of the ejectment petition. The petitioner was, therefore, not liable to be ejected on the ground of non-payment of rent. The other ground pressed for the ejectment of the petitioner was that the shop had been rendered unfit and unsafe for human habitation. The Rent Controller also recorded a finding against the respondent on this point and consequently dismissed his ejectment application.

2. The respondent filed an appeal and the main ground pressed for the ejectment of the petitioner was non-payment of arrears of rent inasmuch as the tender made was not valid. The learned appellate authority opined that the Rent Controller did not exercise the discretion properly by allowing amendment after a year of the commencement of the ejectment proceedings whereby the petitioner had been allowed to take the plea of adjustment of the excess rent already paid. It was further held that the excess amount already paid could be deducted within six months and the claim of such deduction in the instant case was made after the expiry of six months. The contention on behalf of the petitioner that irrespective of the fact that the plea of deduction was raised in 1978 the deduction had in fact been made within a period of six months (November 1, 1975 to March 31, 1976) was negatived by the learned appellate authority. The appeal was consequently