The main legal point established in the judgment is that an order of eviction cannot be passed solely on account of non-payment of provisional rent assessed, without affording the tenant a reasonable opportunity to contest the petition and lead evidence, in accordance with the legislative intention to provide protection to tenants against eviction for non-payment of arrears of rent.

Hemant Gupta, J.

1. The challenge in the present revision petition is to the order dated 5.6.2003, passed by the learned Appellate Authority and the order dated 26.4.2003 passed by the learned Rent Controller, whereby an order of ejectment was passed against the petitioner on account of failure to tender assessed provisional rent, interest and costs.

2. The respondent sought the ejectment of the petitioner, inter alia on the ground of non-payment of rent for the period 1.1.2002 to 31.7.2002 and also that the premises in question are required for bona fide personal use. On 13.11.2002, the learned Rent Controller has assessed provisional rent at Rs. 35OOO/- (Rs. 5000/- p.m.), costs Rs. 875/- and interest Rs. 935/-. It was also ordered that the fact of payment of rent as stated in para No. 3 will be seen at the final disposal of the case.

3. The learned Rent Controller adjourned the case for arguments on the application for leave to defend and also for payment of arrears of rent. The tenant tendered a sum of Rs. 15,725/- on 28.11.2002 as arrears of rent for the period 1.6.2002 to 30.11.2002 @ Rs. 2400/- per month and an amount of Rs. 450/- interest and Rs. 875/- as costs. The learned Rent Controller noticed the stand of the tenant that he has paid rent for the months in question except June, vide cheques @ Rs. 2400/- P.M. The tenant made tender and further give a statement that rent for the month of June, 2002, was paid in cash and he is depositing the said rent under protest with right of counter claim in this petition.

4. On 22.4.2003, tenant filed an application for recall of the order dated 13.11.2002, inter alia, on the ground that the learned trial Court has assessed the rent without making any enquiry in question nor evidence was recorded and even without filing of the written statement. The learned Rent Controller vide order dated 26.4.2003 found that since the amount assessed has not been paid within the time prescribed, therefore, the petitioner is liable to be ejected from the demised premises. It may be noticed that vide separate order on 26.4.2003, the learned Rent Controller dismissed another application filed by the petitioner, wherein an objection was raised that the petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short the Act) for eviction on the ground of non-payment of arrears of rent and the petition under Section 13-A of the Act to seek eviction for the bona fide personal requirement, cannot be clubbed. The landlord suffered a statement on 22.4.2003 withdrawing the petition under Section 13-A of the Act seeking ejectment was the arrears of rent, the order of eviction was passed on 26.4.2003 as the petitioner has not paid assessed provisional rent.

5. Aggrieved against the order of eviction on account of non-payment of provisional arrears of rent within 15 days, the petitioner filed an appeal but the same was dismissed as it was held that the ejectment order has necessarily to follow on the failure of the tenant to comply with the order of provisional assessment of arrears of rent, interest and costs. Still, aggrieved, the petitioner is in revision petition.

6. After going through the record of the case, I am of the opinion that the order passed by the learned Rent Controller and the order in appeal suffer from patent illegality and irregularity causing manifest injustice to the petitioner. The findings recorded are not based upon correct appreciation of the ruling of the Hon ble Supreme Court in Rakesh Wadhawan v. Jagdamba Industrial Corporation.

7. An order of ejectment has been passed against the petitioner even before a written statement was permitted to be taken on record and without recording any evidence. In my view, the order of ejectment passed simply on account of failure to deposit arrears of rent, interest and costs within time prescribed, is complete negation of justice. In the present case, the landlord has filed petition under Sections 13 and