JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2789 of 1980.

From the Judgment and Order dated 29.5.1980 of the Punjab and Haryana High Court in Civil Revision No. 2 16 of 1980.

R.F. Nariman and D.N. Misra for the Appellant.

989

Rakesh Sahney, K.M.M. Khan and Vineet Kumar for the Respondent.

The Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. This appeal by special leave under Article 136 of the Constitution is against the judg- ment and order dated 29.5.1980 in Civil Revision No. 216 of 1980 passed by the High Court of Punjab and Haryana at Chandigarh.

The respondent herein being the owner of the tenanted premises (i.e. two sheds) filed a petition for ejectment before the Rent Controller against the tenant, the appellant herein on the ground that the tenant had not paid the rent from 1.5.74. The monthly rent for the premises was orginally Rs.950. According to the landlord under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the ’Act’) the rent of the demised premises was liable to be increased from Rs.950 to Rs. 1142 per mensem. The landlord gave notice to the tenant to pay the rent at the enhanced rate of Rs. 1142 per mensem with effect from 26th June 1974 but the tenant defaulted in making the payment of rent and as such he was liable to be ejected from the premises on the ground of nonpayment of rent. The tenant resisted the application stating that the landlord was not entitled to claim enhanced rent at the rate mentioned in the ejectment application under the provisions of the Act and no legal notice was served on him claiming the arrears of rent and he had already paid the rent upto March 1975 by means of cheques and he had tendered the arrears of rent together with interest and cost as assessed by the Rent Controller on 5th December 1977 and hence the sole ground of his ejectment from the demised premises was no longer available to the landlord. In the replication the landlord denied that the tenant had paid the rent to him for the period from May 1974 to 30th November 1977 @ Rs.1142 per mensem. In the alternative, he claimed that the rent to the extent of Rs.36,100 was due to him from the tenant @ Rs.950 per mensem for the period 1st May 1974 to 30th June, 1977 and that the tenant having defaulted in making the payment was liable to be ejected. It may be stated that the applica- tion for eviction was filed on 7.6.77.

The Rent Controller held that the landlord was not entitled to recover the rent @ Rs. 1142 p.m. but only @ Rs.950 p.m. as agreed between the parties and he had failed to pay the rent from 1.4.75. On the basis of the above finding the Rent Controller directed the eject- 990 ment of the tenant from the premises by granting two months’ time.

This order of the Rent Controller, on appeal, was con- firmed by the Appellate Authority. On being aggrieved with the Order of the Appellate Authority, the tenant preferred a Civil Revision Petition before the High Court under Sub- section (6) of Section 15 of the Act. On behalf of the tenant, it was urged before the High Court on the strength of Clause ’C’ of Rule 4 and Clause (1) of Rule 5 of the Haryana Urban (Control of Rent and Eviction) Rules 1976 framed under Section 23 of the Act that since in the appli- cation for ejectment no specific amount of arrears due was mentioned, the application was not maintainable. The High Court rejected this plea observing thus:

"Admittedly, no such objection as to the non- compliance of the said rules was taken either in the written statement or before the Rent Controller, inasmuch as it was not raised even before the Appellate Authority. Moreover, it has not been shown that any prejudice was caused to the tenant on account of this non- compliance on the part of the landlord. Under these circumstances, no such plea can be available to the tenant in this revision petition for the first time particularly when it does not affect the merits of the case nor has it cau