The provisions of Section 59 of the Contract Act are not attracted in cases where the tenant tenders rental arrears, interest and costs with a direction for appropriation and if the amount deposited under a particular head falls short, while the amount deposited under another head is in excess, the tenant is entitled to claim adjustment of such excess amount towards such short deposit.

Sarojnei Saksena, J.

1. Being aggrieved by the Appellate Authoritys Order dated 29.3.1996, the tenant-petitioner filed Civil Revision No. 1609 of 1996 in the High Court.

2. Brief resume of the case is that the landlord-respondent filed an ejectment petition Under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (in short, the Act) against the tenant petitioner averring that the tenant is occupying the demised shop at a monthly rent of Rs. 650/- under the rent note executed by him on 16.2.1987. The tenant has not paid rent and house-tax since 1.5.1994. Thus, his ejectment was sought on account of rental arrears.

3. Tenant-petitioner admitted that the rate of rent is Rs. 650/- per month, but he denied other allegations.

4. On December 12, 1994, the tenant-petitioner tendered rent at the rate of Rs. 650/- per month and house tax at the rate of Rs. 90/- per month for the period from 1.5.1994 to 31.12.1994, interest at the rate of 6 per cent per annum amounting to Rs. 15/- and Rs. 100/- as costs of litigation, totalling Rs. 6035/- to the paid to the landlord-respondent. The Rent Controller held that the tenant has tendered excess rent, though the amount of interest is short, but it can be adjusted from the excess amount and hence, tender made by the tenant was not held to be short and invalid. Thus, the ejectment petition was dismissed.

5. Landlord-respondent filed appeal before the Appellate Authority. The Appellate Authority relying on Smt. Daropati Devi v. Sohan Lal and Anr., 1984(1), RLR 414, held that the tender made by the tenant on the first date of hearing from May 1, 1994 to December 31, 1994 cannot be appropriated for any other purpose, much less for its appropriation towards interest which is concededly short. He also distinguished the judgment of this Court in Siri Ram v. Dharam Singh and Ors., 1982(1) RLR 254 holding that judgment was given in 1968 and further Sections 59 to 61 of the Contract Act were not adverted to therein.

6. During arguments of the aforementioned civil revision, the tenant-petitioners learned counsel relying on Pritam Singh v. Smt. Sibo, (1980)82 P.L.R. 577; Moti Lal v. Smt. Santosh Human, (1989-2)96 P.L.R. 21; Joginder Singh v. Harbhajan Singh, (1989-2)96 P.L.R.237; Lal Chand v. Madan Lal, 1987(2) R.L.R. 485, Prem Chand v. Amar Nath, 1977(2) R.L.R. 72, Sada Nand v. Saroj Devi, (1978)80 P.L.R. 445 and Siri Rams case (supra), contended that admittedly in this case the tenant-petitioner has deposited Rs. 6035/- to be paid to the landlord. Rent petition was filed on 9.8.1994. The landlord claimed rental arrears from 1.5.1994. Under the provisions of the Act the landlord could have demanded rental arrears only upto June 1994, as rent of July 1994 was payable by the end of August 1994, but he tendered rent along with house-tax from May 1, 1994, to December 31, 1994. Even if there was short deposit in so far as interest was concerned, the landlord should have adjusted the excess amount deposited towards rental arrears to make good the short deposit of interest.

7. Landlord-respondents learned counsel relying on Smt. Daropati Devis case (supra), contended that so far as tender of arrears of rent is concerned, the tenant pointedly specified that the arrears tendered are for the months upto the date of first hearing; therefore, the Court had no right to appropriate the excess amount which is deposited under the head of rental arrears to clear up the short deposit under the head of interest.

8. The Single Judge, while hearing the said revision, considered various authorities cited by the petitioners counsel and observed that in two Single Bench judgments (Daropati Devi and Bansi Lals cases), referred to above, the provisions of Sections 59 to 61 of the Contract Act are considered and made applicable in rent petitions. Other High Courts have also considered these provisions of the Contract Act along with the provisions of Rent Act. Thus the legal question was posed;-

If the tenant while