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     IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5129  OF 2017 [Arising out of SLP(C) No. 24952 of 2015]

DALIP KAUR BRAR        ..APPELLANT  

VERSUS

M/S.GURU GRANTH SAHIB SEWA MISSION (REGD.) AND ANR.               ..RESPONDENTS  

J U D G M E N T

Dr D Y CHANDRACHUD, J

Leave granted.

2 The  Rent  Controller  ordered  that  the  tenant  be  evicted  under

Section 13 of  the East  Punjab Urban Rent  Restriction Act,19491  for

defaulting in the payment of rent. The Punjab and Haryana High Court

set aside the order of eviction. The correctness of the decision rendered

1

the Act

REPORTABLE

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by  the  learned  Single  Judge  on  29  April  2015  has  been  called  into

question.  The  appellant  is  the  landlord.  The  Respondents  are  her

tenants.

3 On 1 June 2005 a lease was executed by the appellant by which a

residential  property,  bearing  House  No.  2535  in  Sector  35-C  at

Chandigarh, was let out to the respondents. The term of the lease was

three years commencing on 1 June 2005, to end on 31 October 2008.

The rent agreed was Rupees 25,000 for an initial  period of one year

which was to be enhanced to Rupees 28,000 commencing from 1 June

2006 for the remainder of the term.

4 On 8 November 2006, the appellant filed an ejectment application

under Section 13 of the Act on the ground that : (i) the respondents failed

to pay the rent from 1 November 2005 to 31 May 2006 at the agreed rate

of Rupees 25,000 per month and with effect from 1 June 2006 at the rate

of Rupees 28,000 per month, and the cheques which were issued were

dishonoured; (ii) the premises have been kept locked and were not being

used for sufficient reason since December 2005.

5 The respondents contested the ground of default by claiming that

they had paid an advance of six months’ rent and hence no arrears were

due.

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6 The Rent Controller by an order dated 14 November 2007 made a

provisional assessment of rent and directed the respondents to deposit

an amount of Rupees 19,000 per month with effect from 1 June 2005

together with interest  at  the rate of  6 per  cent  per  annum and costs

quantified  at  Rupees 500.  The order  of  the Rent  Controller  fixed the

proceedings on 14 December 2007 for payment or tender of the rent as

provisionally assessed.   

7 On 14 December  2007 the respondents  filed  an  application  for

review on the ground that though the appellant had claimed rent with

effect from 1 November 2005 the direction for deposit was with effect

from  1  June  2005.   The  fact  that  the  respondents  were  in  arrears

appears not to have been in dispute for even in the application for review

the prayer was in the following terms :

“…It is, therefore, respectfully prayed that the order dated 14.11.2007 may kindly be reviewed and set aside and the Respondent,  be  allowed  to  tender  the  rent  from 01.03.2007 to 14.11.2007, in the interest of justice.”

The  respondents  failed  to  comply  with  the  order  of  provisional

assessment.  

8 Since the respondents failed to comply with the order by which

provisional  rent  was determined together  with  interest  and costs,  the

Rent Controller passed an order of eviction on 14 December 2007. The

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respondents filed an appeal against the order.  On 7 January 2008 a

conditional  stay  was  granted  by  the  District  and  Sessions  Judge,

Chandigarh,  acting  as  the  appellate  authority,  by  which  the  order  of

eviction was stayed subject to the deposit of rent within a period of one

month  before  the  Rent  Controller  and  the  continued  deposit  of  the

monthly  rent  by  the  seventh  day  of  every  succeeding  month.  The

respondents failed to comply with the conditions subject to which stay

was granted. Instead, they filed on 7 February 2008 an application for

modifying the order dated 7 January 2008. On 11 February 2008, the

respondents filed an application for  extension of  time.   The appellate

court by its order dated 18 February 2008 dismissed the applications for

modification and for extension of time.

9 The first  round of  proceedings before  the High Court  was then

initiated by the respondents by instituting a civil revision application2 in

which they sought to challenge the order of eviction dated 14 December

2007, the order granting conditional stay dated 7 January 2008 and the

order  of  the  appellate  court  dated  18  February  2008  dismissing  the

application  for  modification  and  extension  of  time.   A learned  Single

Judge of the High Court by an order dated 31 March 2008 dismissed the

civil revision.  

2

RA 1948 of 2008

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10 The  appellant  thereupon  filed  an  application  before  the  Rent

Controller for executing the order of eviction dated 14 December 2008.

On 3 June 2008 the Rent Controller issued a warrant of possession. The

appellate court declined to stay execution on 14 June 2008. This led to a

second round of proceedings before the High Court in the form of a Civil

Revision Application (RA No. 3922 of 2008) by which the respondents

challenged the order of the Rent Controller dated 14 November 2007

making  a  provisional  determination  of  the  rent,  the  order  of  eviction

dated 14 December  2007 and the  order  dated  14  June 2008 of  the

appellate authority declining to stay the execution proceedings.

11 A learned  Single  Judge  of  the  High  Court  dismissed  the  Civil

Revision on 14 June 2008 though by then,  the respondents claim to

have deposited an amount of Rupees 6.50 lakhs towards the arrears of

rent.  The  High  Court  held  that  on  31  March  2008  it  had  already

dismissed  the  civil  revision  against  the  interim  order  passed  by  the

appellate authority and hence a fresh application was barred.  Moreover,

the  High  Court  noted  that  a  substantive  appeal  against  the  order  of

eviction  was  pending  before  the  appellate  authority.  The  appellate

authority  was  directed  to  dispose  of  the  appeal  expeditiously, by  28

February 2009.  

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12 A Special Leave Petition was filed before this Court  against  the

order  of  the  High  Court  dismissing  the  Civil  Revision.   During  the

pendency of the special leave petition the appellate authority dismissed

the  appeal  against  the  order  of  eviction  on  25  February  2009.   The

respondents failed to comply with the order  passed by this  Court  for

depositing the entire arrears within two months.  Eventually, the special

leave  petition  was  dismissed  on  2  April  2012  and  an  interim  order

passed by this Court earlier was vacated.

13 Thereafter  a third round of  proceedings was initiated before the

High Court in the form of a Civil Revision Application (RA No. 3202 of

2009)  in  which  the  order  of  eviction  and  the  order  of  the  appellate

authority dismissing the appeal of the respondents was questioned. The

High Court by its judgment and order dated 29 April 2015 has allowed

the civil revision and set aside the order of eviction. The High Court has

principally relied on the fact that by the provisional order of assessment

the Rent Controller  had directed the respondents to deposit  rent  with

effect from 1 June 2005 though the tenant was alleged to have been in

default with effect from 1 November 2005.  Since the order of provisional

assessment  has  been  held  to  be  flawed  on  this  ground,  the

consequential  order  of  eviction  has  been held  to  be  contrary  to  law.

However, the proceedings have now been remanded for consideration of

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the ground of  non-use on which a decree for  eviction has also been

sought.  The judgment of the High Court is called into question in these

proceedings.

14 The  first  submission  which  has  been  urged  on  behalf  of  the

appellant  is  that  the  correctness  of  the  order  of  eviction  dated  14

December  2007  was  called  into  question  in  the  first  civil  revision

Application that was filed before the High Court.  The dismissal of the

application  on  31  March  2008,  it  was  asserted,  culminated  in  the

challenge to the order of eviction being concluded. The order of the High

Court dated 31 March 2008 has attained finality, there being no further

proceedings before  this  Court.  Hence it  has been submitted that  the

challenge to the order  of  eviction in  appeal  did not  survive upon the

dismissal  of  the  Civil  Revision  Application  on  31  March  2008.   This

submission  was  sought  to  be  further  buttressed  by  adverting  to  the

principle of issue estoppel as elaborated in the judgments of this Court in

Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr.3 and

Narayan Dutt Tiwari  v. Rohit Shekhar and Anr.4.

15 In order to address the submission, it would be necessary to note

at the outset that following the failure of the respondents to comply with

the  provisional  assessment  made  by  the  Rent  Controller  on  14

3 (1999) 5 SCC 590 4 (2012) 12 SCC 554

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November  2007,  the  order  of  eviction  was  passed  on  14  December

2007. The respondents filed an appeal against the order of eviction and

on 7 January 2008 a conditional stay was granted subject to deposit.

The respondents filed an application for modification of the condition of

deposit  and for  extension of  time.   When both  the applications were

dismissed by the appellate Court they instituted proceedings before the

High Court invoking its revisional jurisdiction.  Undoubtedly, the frame of

the civil revision incorporated a challenge to the order of eviction as well

as to the orders passed by the appellate authority on 7 January 2008

(granting a conditional stay) and on 18 February 2008 (dismissing the

application  for  modification  and  extension).  At  that  stage,  the

respondents having already invoked the appellate remedy against the

order of eviction, the substantive challenge to the order of eviction could

not have been the subject of a parallel proceeding before the High Court

in a civil revision.  An appeal having been preferred against the order of

eviction, it would be natural to postulate that the respondents would have

to first exhaust the appellate remedy before seeking to question the final

order of eviction in revision before the High Court.  Moreover, the appeal

was not  withdrawn.   The scope of  the challenge by the respondents

before the High Court in revision was in regard to the conditions which

were imposed by the appellate authority for staying the operation of the

order of eviction. The respondents were aggrieved by the condition of

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deposit and by the refusal of the appellate authority to modify its order

imposing those conditions. The revision traversed that limited area and it

would  be  impermissible  to  construe  the  judgment  of  the  High  Court

dated 31 March 2008 as having brought down the curtains on the order

of eviction dated 14 December 2007.  The appeal filed against the order

of eviction was still pending and there is no reason to assume that the

High Court would, despite the recourse that was taken by the tenants to

the  appellate  remedy,  interdict  the  exercise  of  jurisdiction  by  the

appellate  authority  in  exercise  of  the  statutory  right  of  appeal  under

Section 15(1)(b) of the Act.   

16 There can be no dispute about the position in law.  The decision in

Hope  Plantations  Limited (supra)  formulates  the  principle  in  the

following observations :  

“26.…..When  the  proceedings  have  attained  finality parties are bound by the judgment and are estopped from questioning it.   They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier  litigation.  These two aspects  are  “cause  of  action  estoppel”  and  “issue estoppel”.  These two terms are  of  common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined.  Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel….”

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In  the  subsequent  judgment  of  a  Bench  of  two  learned  Judges  in

Narayan Dutt  Tiwari (supra),  it  has been held  that  principles  of  res

judicata and constructive res judicata apply also to successive stages of

the same proceedings. However, in the present case this principle would

not stand attracted for the simple reason that the legality of the order of

eviction was the subject matter of a statutory appeal under Section 15(1)

(b) before the appellate authority.  Properly construed, the scope of the

revision application before the High Court, during the pendency of the

appeal, related to the conditions which were imposed by the appellate

authority for staying the order of eviction.  The decision of the High Court

dated 31 March 2008 would hence have to be construed as a view taken

upon the legality of the conditions imposed by the appellate authority for

staying the order of eviction and not in regard to the legality of the order

of eviction which was pending consideration in the appeal.  We therefore

do not find merit in the first submission which has been urged on behalf

of the appellant.

17 The  next  aspect  of  the  matter  arises  from  the  provisions  of

Section 13.  Insofar as it is material, Section 13 provides as follows :  

“13. Eviction of tenants.- (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution  of  a  decree  passed  before  or  after  the commencement  of  this  Act  or  otherwise  and  whether before  or  after  the  termination  of  tenancy,  except  in accordance  with  the  provisions  of  this  section,  or  in pursuance of an order made under Section 13 of the East

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Punjab  Urban  Rent  Restriction  Act,  1949,  as subsequently amended.

(2) A landlord who seeks to evict his tenant shall apply to the  Controller  for  a  direction  in  that  behalf.  If  the Controller,  after  giving  the  tenant  a  reasonable opportunity  of  showing  cause  against  the  applicant,  is satisfied –

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable :

Provided  that  if  the  tenant  on  the  first  hearing  of  the applications  for  ejectment  after  due  service  pays  or tenders the arrears of rent and interest at six per cent per annum  on  such  arrears  together  with  the  cost  of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid.

*** ***  ***

The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:

Provided  that  the  Controller  may  give  the  tenant  a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate.”

18 Sub-section (1) of Section 13 contains a bar to the eviction of a

tenant  who  is  in  possession  of  a  building  or  rented  land  except  in

accordance with  the provisions of  the Section or  in  pursuance of  an

order  passed   under  Section  13  of  the  East  Punjab  Urban  Rent

Restriction Act  1949.  A landlord who seeks the eviction of  his  tenant

must under sub-section (2) apply to the Rent Controller. Clause (i)  of

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sub-section  (2)  empowers  the  Rent  Controller  to  pass  an  order  of

eviction (directing the tenant  to  put  the landlord in  possession)  if  the

tenant has not paid or tendered the rent due by him within 15 days of the

expiry of the time fixed in the agreement of tenancy or, where there is no

agreement, by the last day of the month following the month for which

the rent is payable. The proviso to clause (i) of sub-section (2) is in the

nature  of  a  concession  by  which  the  legislature  has  introduced  a

deeming fiction.  The deeming fiction arises where the tenant at the first

hearing of the application for ejectment pays or tenders the arrears of

rent together with interest at six per cent per annum and the costs of the

application assessed by the Rent Controller.  If this condition is fulfilled,

the deeming fiction that  comes into being is  that  the tenant  shall  be

deemed  to  have  duly  paid  or  tendered  the  rent  “within  the  time

aforesaid”.   The expression “within the time aforesaid” obviously is in

reference  to  the  time  for  payment  of  rent  which  is  stipulated  in  the

substantive part of clause (i) of sub-section (2) immediately before the

commencement of the proviso.  

19 Hence the position is that the tenant must pay or tender the rent

within 15 days of the expiry of the time fixed in the agreement of tenancy

or in the absence thereof “by the last date of the month next following

that for which the rent is payable”.  If the tenant fails to do so, the Rent

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Controller upon being moved by the landlord is empowered to order the

eviction  of  the  tenant.   This  consequence  is  however  obviated  upon

compliance with the terms of the proviso.  Before a tenant can claim the

benefit of the proviso, it is necessary that its terms must be observed.

Where  the  tenant  upon  an  assessment  being  made  by  the  Rent

Controller has on the first hearing of the application for eviction paid or

tendered the arrears of rent together with interest and costs as assessed

by the Controller, by a deeming fiction of law, the tenant would be treated

to have duly paid or tendered the rent within the period as stipulated in

the statutory provision.  In order to seek the benefit of the proviso, there

has to be first an assessment by the controller; second, the payment or

tendering of the rent, interest and costs by the tenant in terms of the

order of the Rent Controller and third, such payment or tender must be

on the first hearing of the application for ejectment.  But for the proviso, a

tenant in default would be liable to suffer an order of eviction for default

in  paying  rent.  The  proviso  makes  a  concession  but  conditions  the

benefit of the concession granted to the tenant subject to compliance

with  its  conditions.   If  the  tenant  complies  with  the  conditions,  the

deeming  fiction  comes into  existence.   If  the  tenant  fails  to  fulfil  the

conditions, the Rent Controller will be empowered to order eviction.  To

protect himself against suffering the consequence of eviction, the tenant

has no option but to tender or pay the rent, interest and costs assessed

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by  the  Rent  Controller  on  the  first  hearing  of  the  application  for

ejectment. If he fails to do so, the tenant will not have the benefit of the

deeming fiction by which the consequence of a default  in payment is

obviated.   

20 In  Rakesh  Wadhawan  and  Ors.v.  Jagdamba  Industrial

Corporation and Ors.  5,  a Bench of two learned Judges of this Court

construed  the  provisions  of  Section  13(2)(i).   Its  conclusions  were

summarised thus :  

“To sum up, our conclusions are : 1. In  Section  13(2)(i)  proviso,  the  words

“assessed  by  the  Controller”  qualify  not merely  the  words “the  cost  of  application” but the entire preceding part of the sentence i.e.  “the arrears of rent  and interest at  six per  cent  per  annum  on  such  arrears together with the cost of application”.

2. The proviso to Section 13(2) (i) of the East Punjab  Urban  Rent  Restriction  Act,  1949 casts  an  obligation  on  the  Controller  to make an assessment of (i) arrears of rent, (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the “first  date  of  hearing”  after  the  passing  of such  order  of  “assessment”  by  the Controller so as to satisfy the requirement of the proviso.

3. Of necessity, “the date of first hearing of the application”  would  mean  the  date  falling after  the  date  of  such  order  by  the Controller.

4. On  the  failure  of  the  tenant  to  comply, nothing remains to be done and an order for

5 (2002)5 SCC 440

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eviction  shall  follow.   If  the  tenant  makes compliance,  the  inquiry  shall  continue  for finally  adjudicating upon the  dispute as  to the  arrears  of  rent  in  the  light  of  the contending pleas raised by the landlord and the tenant before the Controller.

5. If the final adjudication by the Controller be at  variance  with  his  interim  or  provisional order passed under the proviso, one of the following  two  orders  may  be  made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct  a  refund.  If,  on  the  other  hand,  the amount deposited by the tenant is found to be  short  or  deficient,  the  Controller  may pass a conditional order directing the tenant to  place the landlord in  possession of  the premises by giving a reasonable time to the tenant  for  paying  or  tendering  the  deficit amount,  failing  which  alone  he  shall  be liable to be evicted.  Compliance shall save him from eviction.

6. While exercising discretion for affording the tenant  an  opportunity  of  making good  the deficit,  one  of  the  relevant  factors  to  be taken  into  consideration  by  the  Controller would be,  whether  the tenant  has paid or tendered with substantial regularity the rent falling  due  month  by  month  during  the pendency of the proceedings”.

21 The  decision  in  Wadhawan (Supra)  lays  down  that  under  the

proviso to clause (i) of sub-section (2) of Section 13  the Rent Controller

is obliged to assess the arrears of rent, interest and costs of a litigation

which the tenant  must  pay on the first  date  of  hearing.  If  there is  a

dispute raised about the quantum of the arrears of rent or about the rate

of rent the Controller will initially make a provisional assessment.  The

provisional assessment is based on a  prima facie  view formed by the

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Controller on the basis of the pleadings or such other material as may be

available. Such amount as determined by the Controller must be paid by

the tenant on the first date of hearing after the date of the provisional

order passed by the Controller.  The date of first hearing is the date on

which the Controller applies his mind to the facts involved in the case.

Once the Rent  Controller  has made a provisional  assessment  of  the

rent,  interest  and  costs,  the  tenant  is  required  to  pay  or  tender  the

amount  provisionally  assessed  on  the  first  date  of  hearing  of  the

application for ejectment.  The provisional adjudication is subject to a

subsequent  final  adjudication  by  the  Rent  Controller.   The  final

adjudication by the Rent Controller may hold that the quantum of arrears

as determined is (i) the same as that which was found due under the

provisional order; (ii) less than what was determined by the provisional

order; or (iii) more than what was held to be due and payable under the

provisional  order.   In  the  first  eventuality,  the  Rent  Controller  would

proceed to  terminate  the  proceedings.  In  the  second eventuality, the

Rent  Controller  may  direct  that  the  amount  deposited  in  excess  be

refunded to the tenant (or adjusted against future payments due).  In the

third  eventuality,  the  Rent  Controller  may  pass  a  conditional  order

affording the tenant an opportunity of reasonable time for depositing the

amount (in deficit) failing which the tenant would be liable to be evicted.

In passing such an order the Rent Controller furnishes an opportunity to

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the  tenant  to  make  good  the  deficit  in  terms  of  the  final  order  of

assessment.  The deposit  by the tenant in terms of the final order of

assessment, within the period fixed by the Rent Controller would protect

the tenant from the consequence of an order of ejectment.  

22 The judgment in Wadhawan (supra) was reaffirmed subsequently

by a Bench of three learned Judges of this Court in  Vinod Kumar v.

Premlata  6.  

23 In  a  subsequent  decision of  a Bench of  two learned Judges in

Harjit Singh Uppal v. Anup Bansal  7 , this Court considered the impact

of  the statutory right  of  appeal which is available to the tenant under

Section 15(1)(b).  Section 15(1)(b) is in the following terms :  

“15. Vesting of appellate authority on officers by State Government.-

(1)(a)

(b)  Any  person  aggrieved  by  an  order  passed  by  the Controller may, within fifteen days from the date of such order or such longer period as the appellate authority may allow  for  reasons  to  be  recorded  in  writing,  prefer  an appeal  in  writing  to  the  appellate  authority  having jurisdiction.  In  computing the period of  fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded."  

In that case, the landlord who was the respondent before this Court had

sued the tenant for eviction on the ground of a default in the payment of

6 (2003) 11 SCC 397 7 (2011)11 SCC 672

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rent.   The  Rent  Controller  made  a  provisional  determination  of  the

arrears of rent together with interest and costs which was directed to be

deposited  by  a  stipulated  date.   The  tenant  made an  application  for

recalling the order on the ground that the payment which he had made to

the landlord had not been considered. The Rent Controller rejected the

application and, upon the failure of the tenant to comply with the order of

provisional  assessment,  an order  of  eviction was passed.  The tenant

preferred an appeal under Section 15(1)(b). The appellate authority held

that the order of provisional assessment was liable to be set aside. An

order of remand was passed by the appellate authority directing the Rent

Controller to determine the provisional assessment afresh.  In a revision

by the landlord before the High Court, a learned single Judge held that

since the tenant had not availed of the remedy to challenge the order

fixing provisional rent during the period between the date of the order

and the date fixed for payment, the Rent Controller had no choice but to

order eviction.  Accordingly, the High Court while allowing the revision

petition set aside the order of the appellate authority and restored the

order of eviction passed by the Rent Controller. This Court held in appeal

that while the determination of provisional rent by the Rent Controller is

foundational  to  an  order  of  eviction,  where  the  tenant  has  failed  to

comply with the order of provisional assessment, nevertheless such an

order is interlocutory in  the sense it  does not  determine the principal

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matter finally.  In the view of this Court, though the tenant may not have

challenged a provisional order of assessment at the interlocutory stage,

there is no impediment to lay a challenge to the provisional assessment

in an appeal against the final order :

“24. We find no impediment for an aggrieved person, on reading Section 15(1) (b) of the 1949 Rent Act, that an interlocutory order which had not been appealed though an appeal lay, could not be challenged in an appeal from the final order.  In our opinion, Section 15(1) (b) does not make it imperative upon the person aggrieved to appeal from an interlocutory order and, if he does not do so, his right gets forfeited when he challenges the final order.

25. It is true that an order of eviction follows as a matter of course  if  there  is  non-compliance  with  the  order determining  the  provisional  rent  but  when  tenant challenges  the  order  of  eviction  and  therein  also challenges the order of fixation of provisional rent – the order of  eviction, in its nature, being dependant on the correctness of  the  order  fixing  the  provisional  rent  and there being no indication to the contrary in Section 15(1) (b) – it must be open to the appellate authority to go into the  correctness  of  such  provisional  order  when  put  in issue.”

24 The position that emerges in law is that once the Rent Controller

has made a provisional assessment of the arrears of rent, interest and

costs, the tenant must deposit  the amount so determined on the first

hearing of the application for ejectment.  A tenant who does so would be

deemed to have duly paid or tendered the rent within the time prescribed

by  the  substantive  provision  of  Section  13(2)(i).   A tenant  failing  to

comply with the terms of  an order  of  provisional  assessment,  cannot

thereafter  avail  of  the  concession  extended  to  a  tenant,  through  the

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proviso under Section 13(2)(i),  and will  be liable to suffer an order of

eviction.  However, having suffered the order of eviction, the tenant is

entitled to  the statutory remedy of  an appeal  under  Section 15(1)(b).

The determination of a provisional assessment being the foundation of

the order of eviction (which flows from the non-compliance of the terms

of the provisional assessment), the tenant in an appeal against the order

of  eviction  is  entitled  to  question  the  correctness  of  the  order  of

provisional assessment. This is available even after an order of eviction

has been passed. Harjit Singh Uppal (supra) holds that the right is not

lost upon an order of eviction being passed.

25 In the present case, the petition for eviction that was filed by the

appellant proceeded on the basis that the rent had remained in arrears

from  1  November  2005.   The  averment  in  the  petition  was  to  the

following effect :  

“(a) That the Respondents have neither paid for tendered the  due  rent  w.e.f.  01.11.2005  to  31.05.2006  @ Rs.25,000/-  p.m.  and w.e.f.  01.06.2006 onwards at  the rate of Rs.28,000/- p.m. Even the cheques issued by the Respondents  in  favour  of  the  petitioner  have  been dishonoured.”

26 The  Rent  Controller  by  his  order  dated  14  November  2007

required the respondent to deposit the arrears of rent with effect from 1

June 2005 till the filing of the petition and thereafter till the passing of the

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order at the rate of Rupees 19,000 per annum together with interest at 6

per  cent  per  annum  and  costs  quantified  at  Rupees  500  on  14

December 2007.  Though the rent  was directed to be deposited with

effect from 1 June 2005 (and not 1 November 2005) it must be noted

that  the  tenant  got  the  benefit  of  an  order  for  depositing  only

Rupees19,000 per month (as against the agreed rent of Rupees 25,000

per month till 31 May 2006, and Rupees 28,000 per month thereafter).

The  Respondents  did  not  deposit  anything  –  not  even  the  admitted

amount – within the period fixed. In the course of the hearing of the Civil

Revision,  the  appellant  conceded  before  the  High  Court  that  the

determination of  arrears with effect  from 1 June 2005 was erroneous

since the Rent Controller ought to have determined the arrears only from

1 November 2005.  The High Court has recorded the concession in the

following observations :  

“….The counsel for the landlord is prepared to admit that the  Rent  Controller  had made a  mistake in  making a reference  that  the  Rent  determined  by  it  namely Rs.19,000/-  to be payable from 01.06.2005 and that it should have been only from 01.11.2005.”

On this foundation, the High Court observed thus :  

“….. I have already observed that the landlord’s counsel does not deny before me that the direction to pay rent from  01.06.2005  was  a  mistake.  The  determination  of provisional rent could not be merely with reference to the rate of rent but also the quantum of rent. The quantum of rent  by  its  reference  to  a  period  when  there  was  no

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default,  was  therefore,  in  error  and  the  correctness  of such  finding  was  surely  susceptible  for  a  challenge  to Appellate Forum. The Appellate Authority ought to have seen that if it was admitted that the tenant was in default only  from  01.11.2005,  the  payment  of  arrears  for  30 months was mistake, it was liable to be set aside. That had the consequential relevance for also setting aside the order  of  ejectment  that  was  passed  for  alleged non-compliance of the order which was erroneous.  If the first  order  of  determination  of  provisional  rent  was erroneous and liable to be set aside, the consequential order of ejectment for non-compliance was also bound to be set aside.”  

Was the High Court correct in taking this view?

27 One line of interpretation for construing the provisions of Section

13  is  that  which  has  been  suggested  on  behalf  of  the  respondents.

According to this interpretation (which seeks to draw sustenance from

the observations in Harjit Singh Uppal (supra)), the tenant would be at

liberty to ignore the order of provisional assessment passed by the Rent

Controller  and  upon  the  passing  of  an  order  of  eviction  for

non-compliance, to pursue the remedy of an appeal under Section 15(1)

(b).  According to this line of interpretation, in the appeal under Section

15(1)(b)  the  tenant  may  demonstrate  that  the  order  of  provisional

assessment was erroneous and as a consequence thereof, the order of

eviction must fail.  The issue is whether such an interpretation must be

adopted invariably in  all  cases.   In  our  view, the interpretation of  the

provisions of Section 13 must bring about a just balance between the

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rights of the tenant and those of the landlord.  On the one hand, there is

a  need  for  protecting  the  tenant  against  being  subjected  to  a

disproportionate  demand  by  the  landlord  and  of  suffering  in

consequence, an unjust decree of eviction.  On the other hand there is a

need  to  protect  the  landlord  against  the  tactics  which  a  recalcitrant

tenant may adopt by deploying every gambit in the rule book to defeat

the just claims of the landlord to the payment of rent.  The judgment

rendered by this Court in Wadhawan (supra) and reaffirmed by a Bench

of three Judges in Vinod Kumar (supra) brings about a just balance by

interposing  the  function  of  the  Rent  Controller  who  determines  on  a

provisional  basis  the  arrears  of  rent,  interest  and  costs.   This

determination ensures on the one hand that while the tenant is protected

against  an unjust  demand by the landlord,  the landlord in  turn is  not

deprived of the just dues owing on account of the use and occupation of

the property by the tenant. Upon a provisional determination being made

by  the  Rent  Controller,  the  tenant  must  deposit  the  amount  of  the

demand, on the first hearing of the application for ejectment. What needs

to be kept in mind is, that the proviso under 13(2) (i) is a concession, and

also, that it is based on a provisional “assessment”. A tenant admitting to

be in arrears of rent, within the parameters provided for under Section

13(2)(i),  is  liable to eviction forthwith.  To avail  of  the concession,  the

provisional “assessment”, must be complied with. If the tenant does so

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the payment is deemed to have been made within time.  If the tenant

fails to do that, the Rent Controller is empowered to pass a decree for

eviction. The manner in which a wrongful provisional “assessment” will

be  remedied have been laid  down in  Wadhawan and  Vinod Kumar

(supra). The tenant upon complying with the order of the Rent Controller

is  not  left  without  a  remedy. When the  Rent  Controller  subsequently

makes a final determination of the rent payable, if  it  is found that the

tenant  has paid  an amount  in  excess,  the Rent  Controller  can issue

directions for refund or adjustment, as the case may be. A tenant who

complies with an order of provisional assessment by the Rent Controller

is  to  be  protected  against  eviction.   At  the  same time,  the  tenant  is

entitled to pursue the challenge to the assessment made by the Rent

Controller.   A  tenant  who  fails  to  observe  the  order  of  provisional

assessment will not be protected against an order of eviction. That will,

however, not deprive the tenant of a right of appeal, as held in  Harjit

Singh Uppal (supra).

28 The dispute which the tenant seeks to raise in regard to the rent

which is payable may straddle several aspects.  There may be a dispute

of the rate of rent. The period over which the rent has not been paid may

be in dispute.  Where the tenant has admitted that the rent is due and

payable at least for a certain period, it is necessary that the Court should

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adopt an interpretation which does not permit the tenant to defeat the

just claim of the landlord. The present case is an object example of such

a situation. The lease agreement between the parties provided for a rent

of Rupees 25,000 for the first year of the lease ending on 31 May 2006,

and which was to stand enhanced to Rupees 28,000 for the remaining

two years.  The Rent Controller directed the tenant to deposit only an

amount of Rupees 19,000 (representing the component of the basic rent

for the first year, the remaining amount of Rupees 6,000 being towards

furniture  and fixtures).  After  the Rent  Controller  made his  provisional

determination  on  14  November  2007  the  tenant  sought  to  dispute

essentially that part of the determination by which the Rent Controller

had fixed the amount due and payable from 1 June 2005.  The prayers

made  by  the  tenant  in  the  review  petition  would  indicate  that  even

according  to  the  tenant,  rent  was  due  and  payable  at  least  for  the

duration which was referred to therein.  The tenant was granted, in the

appeal filed against the order of eviction, a conditional stay requiring the

tenant  to  deposit  the arrears  and to  continue to pay the rent  for  the

subsequent period on a monthly basis.  The tenant failed to comply with

this order.  An application for modification and for extension of time was

moved  which  was  rejected  by  the  appellate  Court.  The  civil  revision

against the order of rejection was also dismissed by the High Court. The

appellant has provided in the special leave petition a table setting out the

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cheques that were issued by the respondents in favour of the appellant

both  towards  the  rent  and  towards  furniture  and  fixtures  which  were

dishonoured. This is extracted below :

Cheques issued by the Respondents in favour of Petitioner Dalip Kaur, which were dishonoured

Sl.No. Cheque No.

Amount  (Rs.)

Dated Bank Reason  for dishonour

1 055192 19,000/- 7.11.2005 Bank  of Punjab

Insufficient Funds

2 055194 19,000/- 7.12.2005  -do- -do- 3 055196 19,000/- 7.1.2006 -do- -do- 4 055198 19,000/- 7.2.2006 -do- -do- 5 055200 19,000/- 7.3.2006 -do- -do- 6 069589 19,000/- 7.4.2006 -do- -do- 7 069404 19,000/- 7.5.2006 -do- -do- 8 069448 21,000/- 7.3.2008 Bank  of

Punjab/ Centurion Bank

-do-

9 069450  -do- 7.4.2008 -do- 10 069581 -do- 7.7.2008 -do-

Cheques issued by the Respondents towards furnitures and fixtures in favour of Pushp Roop Singh Brar which were dishonoured

Sl.No. Cheque No.

Amount  (Rs.)

Dated Bank Reason  for dishonour

1 069449 7,000/- 7.3.2008 Bank  of Punjab/HDF C Bank

Insufficient Funds

2. 069576 7,000/- 7.4.2008  -do-  -do- 3. 069582 7,000/- 7.7.2008  -do- -do-

The appellant was constrained to file a complaint under Section 138 of

the Negotiable Instruments Act, 1881.  She is a widow who has been

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made  to  run  from pillar  to  post  to  secure  the  just  payment  of  dues

legitimately owing to her. The respondents are facing trial and have been

granted bail by the CJM, Ludhiana. The conduct of the respondents has

been noticed in the judgment of the High Court dated 31 March 2008

where the High Court records that :

“….the petitioners admitted the fact that they were unable to pay the arrears of rent and sought one month’s more time to arrange the money.”

The High Court further observed as follows :

“As the facts would speak for themselves, the petitioners have been adopting one or the other delaying tactics in order to wriggle out of their liability to pay the arrears of rent. Firstly, they contended that since the arrears of rent were  demanded  by  the  respondent  with  effect  from 1.11.2005, they could not be asked by the Rent Controller to tender the same with effect from 1.6.2005.

Be that as it may, the Appellate Authority vide order dated 7.1.2008 granted them stay and permitted the petitioners to pay the rent within a period of one month. Had there been  any  bona  fide  intention  to  pay  the  rent,  the petitioners could deposit  the same without  prejudice to their rights and any excess payment, if any, could very well be adjusted against the future rent. However, instead of depositing the arrears of rent, they sought extension of time and wanted to  deposit  only  part  of  the arrears of rent.

If one reads the application moved by the petitioners for extension of time, it can be safely inferred that before the Appellate Authority, they coined a new objection against payment of rent for the subsequent period by 7 th of every calendar  month.  The petitioners presumably wanted to suggest that they could be directed to pay the arrears of rent till the filing of the ejectment petition only and not for the subsequent period.

In  these circumstances when either  the petitioners are unable  to  pay  the  rent  due  to  lack  of  funds  or  they

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deliberately  don’t  want  to  pay  the  same,  no  case  to interfere  with  the  impugned  orders  in  exercise  of  the revisional jurisdiction of this Court is made out.”

The facts before the Court leave no manner of doubt that there was a

stubborn and steadfast unwillingness on the part of the tenant to comply

with  the  order  passed  by  the  Rent  Controller  even  to  the  extent  of

non-deposit of rent for the period  for which it was admittedly due and

payable.  The tenant even went to the extent of claiming that a direction

could have only been issued for the deposit of the arrears and not for the

payment of the rent for subsequent months as directed by the appellate

court  as  a  condition  for  the  grant  of  stay.  Accepting  the  line  of

interpretation which has been suggested by the respondents would lead

to a situation where, though the rate of rent is not in dispute and the

tenant admits that rent is due and payable for a certain duration of time

(while disputing the quantum of arrears) the landlord in pursuance of a

determination made on a provisional basis by the Rent Controller would

be deprived of the rent due and payable, while the tenant takes a chance

of being able to demonstrate in the course of an appeal against the order

of eviction that the initial determination for a certain part of the period

was not payable. In our view such an interpretation would defeat  the

object and purpose of Section 13 and the rationale for the decision of

this  Court  in  Wadhawan (supra)  which has brought  about  a balance

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between the rights of  the landlord and the tenant.  If  the respondents

intended to dispute the claim of arrears for a specified period, there was

no reason or justification for them not to deposit the rent.  It needs to be

kept in mind, that the legislative concession, extended to tenants through

the  proviso  under  Section  13(2)(i),  is  available  conditionally.  To  be

entitled  to  be  saved  against  eviction,  the  tenant  must  satisfy  the

conditions laid down. To understand the words “assessed by the Rent

Controller”,  as  “correctly  assessed”,  would  not  be  proper.  Arrears

payable by a tenant, would be correctly assessed only after evidence is

recorded and concluded. The instant assessment is clearly provisional. It

is  made,  even  before  evidence  has  commenced  to  be  recorded.

Therefore,  it  would  be  improper  to  understand  and  extend  to  such

assessment, any further meaning. Every kind of excuse was made by

the tenant for not paying the rent due and payable. As we have set out

earlier the cheques that were issued to the appellant were dishonoured.

In  this  view of  the matter, the tenant  cannot  have the benefit  of  the

observations contained in  the judgment  of  this  Court  in  Harjit  Singh

Uppal (supra) for the simple reason that they would not come to the aid

of a tenant who has not deposited even the admitted dues in pursuance

of the determination which has been made by the Rent Controller, even

though the proviso extends the concession, only to tenants who have

complied.  The  High  Court  while  determining  whether  the  provisional

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determination of the Rent Controller was correct or otherwise could not

have ignored the position that while the rent payable was Rupees 25,000

per month till 31 May 2006 and Rupees 28,000 per month from 1 June

2006, the Rent Controller had directed a deposit only of Rupees 19,000

per month. The Respondents deposited nothing within the period fixed

and a deposit made in May 2008 would not enure to their benefit.  

29 For these reasons, we are of the view that the High Court fell into

error in allowing the revision application against the judgment and order

of the appellate authority and in setting aside the order of eviction. The

Civil Revision filed by the respondents was liable to be dismissed and

we order accordingly.  

30 We accordingly allow the appeal and set aside the impugned order

of the High Court dated 29 April 2015. The order of eviction passed by

the  Rent  Controller  as  confirmed  by  the  appellate  authority  shall

accordingly stand restored.  

31 The  respondents  shall  pay  costs  to  the  appellant  quantified  at

Rupees 50,000.

...........................................CJI               [JAGDISH SINGH KHEHAR]

                                            ….............................................J               [Dr  D Y  CHANDRACHUD]

New Delhi; April 11, 2017

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ITEM NO.1A                 COURT NO.1               SECTION IVB (For Judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS C.A.No.5129/2017 @ Petition(s) for Special Leave to Appeal (C) No(s).24952/2015 DALIP KAUR BRAR            Appellant(s)                                 VERSUS M/S. GURU GRANTH SAHIB SEWA MISSION  (REGD.) AND ANR.  Respondent(s) Date : 11/04/2017 This appeal was called on for judgment today. For Appellant(s)  Mr.Sudhir Walia, Adv.                      Mr. Abhishek Atrey, Adv.                    For Respondent(s)  Mr.Rajesh Sharma, Adv.                      Ms. Shalu Sharma, Adv.         

Hon'ble  Dr.Justice  D.Y.Chandrachud  pronounced  the judgment of the Bench comprising Hon'ble the Chief Justice of India and His Lordship.

Leave granted. The  appeal  is  allowed  in  terms  of  the  signed

judgment. The order of eviction passed by the Rent Controller as confirmed by the appellate authority shall accordingly stand restored.  

The  respondents  shall  pay  costs  to  the  appellant quantified at Rupees 50,000.     

(SATISH KUMAR YADAV)                       (RENUKA SADANA)     AR-CUM-PS                           ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)