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1981 Supreme(P&H) 277
PUNJAB & HARYANA HIGH COURT
M.R.Sharma and M.M.Punchhi JJ.
Bhim Sain
Versus
Laxmi Narain
Civil Revision No. 1767 of 1981,
Decided On : OCTOBER 16, 1981
The tenant does not lose the right to claim an issue on the quantum of rent and a decision thereon from the Rent Controller in the proceedings for eviction by availing the provisions of the proviso to S.13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
Headnote:
RENT CONTROL - EVICTION - ARREARS OF RENT - TENDER OF RENT AT RATE CLAIMED BY LANDLORD - RIGHT OF TENANT TO CLAIM ISSUE ON QUANTUM OF RENT - PROVISO TO SECTION 13(2)(I) OF THE HARYANA URBAN (CONTROL OF RENT AND EVICTION) ACT, 1973 - INTERPRETATION - SCOPE AND APPLICABILITY.
Fact of the Case:
The tenant-petitioner sought to avoid eviction by availing the first proviso to S.13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 by making payment of the arrears of rent at the rate of Rs. 110/- per mensem as asked for by the landlord. The tenant then applied to the Rent Controller to frame an issue to determine the rate of rent, whether it was Rs. 75/- per mensem or Rs. 110/- per mensem. The Rent Controller dismissed the application, holding that the ground of eviction on the basis of non-payment of arrears of rent had been rendered infructuous and the tenant should seek his remedy by filing an independent suit under S.7 of the Act.
Finding of the Court:
The court held that the tenant did not lose the right to claim an issue on the quantum of rent and a decision thereon from the Rent Controller in the proceedings for eviction by availing the provisions of the proviso to S.13(2)(i) of the Act. The court further held that the specific defence set up by the tenant in the written statement would itself be an inbuilt protest for the simultaneous availing of the benefit of the proviso by making excess payment and for hopeful adjustment of the excess payment.
Issues: 1. Whether the tenant can claim an issue on the quantum of rent after availing the benefit of the proviso to S.13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 1973? 2. Whether the tenant's defence plea in the written statement would have the effect of a cross-claim?
Ratio Decidendi: 1. The court held that the tenant does not lose the right to claim an issue on the quantum of rent and a decision thereon from the Rent Controller in the proceedings for eviction by availing the provisions of the proviso to S.13(2)(i) of the Act. The court reasoned that the general principles of the Civil P.C. apply to proceedings before the Rent Controller, and that the new provisions inserted by the Civil P.C. Amendment Act, 1976 provide for the filing of a counterclaim by the defendant in a suit, based upon any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit. 2. The court held that the specific defence set up by the tenant in the written statement would itself be an inbuilt protest for the simultaneous availing of the benefit of the proviso by making excess payment and for hopeful adjustment of the excess payment.
Final Decision: The court allowed the petition and set aside the impugned order of the Rent Controller. The court directed the Rent Controller to frame the requisite issue, determine the quantum of rent and settle it one way or the other and such relief to the parties as is consonant with the ends of justice.
M.M.PUNCHHI, J.
1. Since doubt was entertained by S.P. Goyal, J. with regard to the correctness of the rule propounded in Nasib Singh V/s. Om Parkash. (1979) 81 Punj LR 502 : (AIR 1979 Punj and Har 96) this petition for revision was admitted by him to a Division Bench. Hence the listing of the petition before us.
2. Facts giving rise thereto are plain and simple. The landlord-respondent had sought eviction of the tenant-petitioner s before the Rent Controller, Narwana on a variety of grounds. One such ground was that the tenant had not paid or tendered the rent due to him and was thus in arrears from 1-3-1978 till date. The rate of rent claimed was Rs. 110/-. The tenant while denying the allegations in the eviction petition claimed in his written statement that the rate of rent was Rs. 75/- per mensem. All the same to avoid eviction, the tenant availed of the first proviso to S.13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (briefly referred to as the Act) by making payment of the arrears of rent at the rate of Rs. 110/- per mensem as asked for. Having warded off summary eviction, the tenant applied to the Rent Controller that an issue be struck which should determine the rate of rent - whether it was Rs. 75/- per mensem or Rs. 110/ per mensem. The Rent Controller issued notice on that application to the landlord. He, while resisting it countered, that after the tender of the arrears of the rent, the ground of eviction on the basis of non-payment of arrears of rent had been rendered infructuous and thus the tenant should seek his remedy by filing an independent suit under S.7 of the Act. According to the landlord, there was no necessity of framing the issue sought. Agreeing with the contention of the landlord, the Rent Controller vide his order dated 3-6-1981, now under challenge, dismissed the application.
3. The learned counsel for the petitioner in support of his contention cited before S.P. Goyal, J. Nasib Singh s case (AIR 1979 Punj, and Har 96) (supra) as has been done before us. That decision was rendered by my learned brother M.R. Sharma, J. (who is now with me as a partner in the Bench). In addition thereto, he relied on some other single Bench cases which wholly or partially supported his contention. We propose to deal with each of them presently. On the other hand, learned counsel for the landlord-respondent did not cite before us a single judgement to the contrary.
4. In Gayan Parbha V/s. Anar Devi, Civil Revision No.210 of 1965 decided on 24-3-1967, Chief Justice Mehar Singh took the view that it was the duty of the tenant to make payment or make tender of the amount as stated, and if he fails to do so, he cannot have the advantage of the proviso to cl. (i) of sub-sec.(2) of S.13 of the East Punjab Urban Rent Restriction Act, 1949. In that case, tender had been made by the tenant at the rate owned by her and not as stated by the landlord. That case was decided against the tenant as there was short payment even at the rate calculated by the tenant and in regard to the interest and costs of the application.
5. In Dial Chand V/s. Mahant Kapoor Chand, (1967) 65 Punj LR 248, Mehar Singh C.J. observed as follows :-
"It is conceivable that a landlord may make an unreasonable claim with regard to the rate of rent in arrears, may be with the dishonest intention of placing the tenant in such a position that he may not be able to take advantage of the proviso, but even in such a case the tenant ought to know the truth, that is to say, the actual rent that he has been paying all along and the rent that has been agreed to by him with his landlord, and if he holds to the actual rent and succeeds in proving that figure, the exaggerated claim by the landlord would come to nothing. In such a case if the tenant complies with the proviso according to the rate which he says is the true rate and proves that to be so, he has the benefit of the proviso and escapes ejectment. This is an aspect of the provi
