Subsequent payment of arrears of rent after the first date of hearing does not save the tenant from ejectment under Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949.

J.V.GUPTA, J.

1. This case was admitted to the Full Bench in view of the conflict between the two Division Bench judgements of this Court, reported as Rattan Chand V/s. Jagmohan Singh AIR 1972 Punj and Har 153 and Mulkh Raj V/s. Onkar Singh (1974) 76 Pun LR 192.

2. The landlord-respondent filed an application for ejectment of the tenant petitioner from the chobara in question on 8th January, 1975, on the ground of non-payment of rent for the period 1st January, 1973 to 31st December, 1974, amounting to Rs. 240/- (Rent being Rs. 10/- per month), in addition to Rupees 21.60 Paise as house-tax. The tenant-petitioner did not appear on the first date of hearing in spite of service" and was proceeded ex parte vide order dated 1st February, 1975, of the Rent Controller. The application of the tenant for setting aside the ex parte proceedings was dismissed and the same order was maintained up to the High Court. The High Court dismissed the revision petition of the tenant on 15th November, 1976. Meanwhile, the landlord-respondent filed another application on 24th August, 1976, in which one of the grounds for ejectment was also the nonpayment of rent for the period 1st December, 1972 to 30th August, 1976, amounting to Rs. 450/- plus the house-tax. This amount of the rent, house-tax, as well as the interest and the cost assessed by the Court, was tendered by the tenant on the first date of hearing, which was accepted by the landlord under protest. The copies of the subsequent application filed on 24th August, 1976, Exhibit R.1, and the statement of the landlord receiving the amount under protest, Exhibit R.3, were filed by the tenant petitioner in the present case, on the basis of which he submitted that since the arrears for the period claimed in the first application have been paid in the second application, the ground of ejectment viz., non-payment of arrears of rent on the due date, is no more available to the landlord respondent. This argument did not find favour with the Rent Controller and as such he ordered the ejectment of the tenant vide his order dated 20th March, 1978, and the same was maintained by the Appellate Authority in appeal. Against the said order of ejectment, the tenant petitioner has come up in revision to this Court.

3. Mr. Sarin, learned counsel for the petitioner, argued that the landlord-respondent in the second application filed by him had also claimed the arrears for the period for which they were claimed in the first application and since the said amount of arrears have been paid under proviso to Section 13(2)(i) of the East punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), the ground of ejectment on the basis of nonpayment of rent is no more available to the landlord, and, therefore, the application is liable to be dismissed. In support of his contention, he relied upon a judgement of this Court, delivered by Hon ble the Chief Justice Mehar Singh (as he then was), reported as Bagarian Armoury V/s. Rakha Ram, (1966) 68 Pun LR 847, which was approved by the division Bench in Rattan Chand s case (supra). He also cited Supreme Court authority reported as Jagat Bahadur Singh V/s. Badri Parshad Seth, (1963) 65 pun LR 452 and J.G. Kohli V/s. Financial Commr. Haryana, Chandigarh, AIR 1976 Punj and Har 107. He has also cited for consideration Mulkh Raj V/s. Onkar Singh, (1974) 76 Punj LR 192, in which a contrary view is said to have been taken.

4. On the other hand, the learned counsel for the landlord-respondent argued that if once the tenant has failed to pay or tender the arrears of rent and interest as contemplated under proviso to Section 13(2)(i) of the Act, on the first date of haring, any payment made subsequently and even accepted by the landlord does not entitle the tenant to claim that the arrears of rent have been paid in accordance with law. According to the learned counsel, if the tenant has once failed to avail the opportunity a contemplated by the Sub-S. (2) of S.