The expression "due service" in the proviso to section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949, requires that a copy of the application for ejectment be served along with the summonses.

1. Jagat Ram has approached this Court under section 15 of the East Punjab Urban Rent Restriction Act No. 3 of 1949 in the following circumstances.

Shri Shanti Sarup, respondent in this Court, applied for ejectment of Jagat Ram from the Premises in question on the following grounds: (1) That he had not paid the rent for five months due from 3-10-1962;

(2) that he had sublet the property;

(3) that he had converted the user of the leased premises; and

(4) that the property had become unsafe for human habitation.

Jagat Ram was served for 7-2-1963 but he did not tender the arrears of rent along with interest on that day but complained to the Rent Controller that no copy of the application had been served on him along with the summonses. The case was accordingly adjourned to 9-2-1963 for filing the written statement. On 9-2-1963, the tenant did not appear with the result that ex parte proceedings were taken against him. The tenant later applied, for setting aside the ex parte proceedings were set aside on 5-3-1963. On the last mentioned date the tenant also tendered arrears of rent along with interest and costs. Shri Shanti Sarup declined to accept the arrears on the ground that the same had not been tendered on the first hearing and was, therefore, not a valid tender.

The rent Controller thereupon settled the following issue: Whether the respondent made a valid tender of the arrears of rent due?

The contention raised on behalf of the tenant that 7-2-1963 was not the first day of hearing because he had not been supplied with a copy of the application for eviction was repelled by the Rent Controller, in view of the decision in Mela Ram V/s. Kundan Lal, 63 Pun LR 451 which followed Hira Lal V/s. Gian Singh and Go., AIR 1951 Punj 441 and Mukh Ram V/s. Siri Ram, 61 Pun LR 561. On this view, the learned Rent Controller came to the conclusion that the arrears of rent had not been tendered on the first day of hearing with the result that the landlord was entitled to an order of ejectment. The landlords petition was thus allowed and an order of ejectment passed on 8-4-1963.

The matter was taken on appeal to the appellate authority who endorsed the view of the Rent Controller with the observation that the decision of this Court were binding on him. This observation was necessitated because on behalf of the tenant-appellant some rulings of other High Courts were cited before him. Dwarka Devi V/s. Hans Raj, 65 Pun LR 705, in which a learned Single Judge of this Court had observed that deposit by a tenant on the day on which the ex party order is set aside must be treated as if the deposit was made on the day fixed for his appearance was distinguished its the appellate authority on the ground that the facts there were different and also that there was no evidence on the record before it showing that on 9-2-1963, the adjourned date of hearing, the tenant had sent anyone with arrears of rent costs and interest etc. An unreported decision of another learned Single Judge in Banarsi Das V/s. S. Santokh Singh Civil Revn. No. 697 of 1959 (Punj) was also brought to the notice of the appellate authority taking the same view as has been taken in the decisions relied upon by the Rent Controller. The appeal was thus dismissed.

On revision, in this Court, the learned counsel for the petitioner has submitted that the view of law taken by the Rent Controller and the appellate authority is not justified on the language of the statutory provision. He has laid stress on the proviso to section 13(2)(I) of the Rent Act which lays down that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at 6 per cent per annum on such arrears together with the costs of the application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent with in the time mentioned in clause (i). He has laid stress on the expression "after the service" and has subm