HARJIT SINGH UPPAL Vs ANUP BANSAL
Bench: AFTAB ALAM,R.M. LODHA, , ,
Case number: C.A. No.-004416-004416 / 2011
Diary number: 33580 / 2010
Advocates: RISHI MALHOTRA Vs
NARESH KUMAR
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4416 OF 2011 (Arising out of SLP (Civil) No. 30300 of 2010)
Harjit Singh Uppal …. Appellant
Versus
Anup Bansal …. Respondent
JUDGMENT
R.M. Lodha, J.
Leave granted.
2. The main question for determination in this appeal, by
special leave, is: If a tenant does not avail his remedy to challenge
the order of the provisional rent fixed under Section 13(2)(i) proviso
to the East Punjab Urban Rent Restriction Act, 1949 (for short, ‘1949
1
Rent Act’) by filing an appeal under Section 15(1)(b) within 15 days
from date of such order, whether the order fixing provisional rent
becomes final and cannot be challenged subsequently, particularly,
in the appeal challenging the order of eviction.
3. The facts are these. The petition under Section 13 of the
1949 Rent Act was filed by the Respondent (‘landlord’) to evict the
appellant (‘tenant’) from Komfort Banquet Hall, Zirakpur-Panchkula
Road, Zirakpur, Tehsil Dera Bassi, District S.A.S. Nagar (Mohali)
(for short, ‘the premises’) before the Court of Rent Controller, Dera
Bassi on December 6, 2008. The landlord averred that the premises
were leased out to the tenant for a term of five years commencing
from August 11, 2003 at the rent of Rs. 1,50,000/- per month. As
per the terms of lease, rent would increase at the rate of 5 per cent
every year on the last prevailing rent and it was also agreed that the
tenant shall pay the rent for every month in advance by the 7th of
month. It is the case of the landlord that tenant stopped paying the
rent since April, 2007 regularly. Ultimately, after the expiry of the
first lease period, the tenant requested for reduction in rent and he
agreed to pay the rent of the premises at the rate of Rs. 1,50,000/-
per month with effect from August 11, 2008 for the period of 31
2
months. The tenant also agreed to pay the Service Tax at the rate
of 12.5 per cent and also increase the rent at the rate of 5 per cent
every year on the last prevailing rent.
4. The claim of eviction, inter alia, was founded on the
ground of default. It was averred that the tenant failed to make the
payment of rent regularly and has fallen in arrears to the extent of
Rs. 27,84,875.04 along with Service Tax at the rate of 12.5 per
cent.
5. The tenant filed written statement and traversed the
case set up by the landlord in the petition for eviction. He averred
that the premises were incomplete at the time of lease and he
invested huge amount for its completion by taking loan from the
banks amounting to Rs. 58,98,370/-. The tenant claimed
adjustment of that amount. He also stated in the written statement
that he has been paying rent to the landlord regularly – mostly by
cheques- and from 2007 he has paid Rs. 37,00,950/- to the landlord.
He raised counter claim and claimed refund of the excess amount
paid to the landlord.
6. On June 6, 2009, the tenant filed an affidavit before
the Rent Controller setting out in detail the statement of the
3
payment of rent made by him from April, 2007 amounting to Rs.
37,00,950/-.
7. The Rent Controller determined the provisional rent on
June 11, 2009 assessing the arrears of rent provisionally at
Rs. 27,84,875.04. The Rent Controller directed the tenant to make
the payment of arrears of rent as determined with interest at the
rate of 6 per cent per annum and costs of Rs. 1,000/- on July 18,
2009.
8. On September 7, 2009, the tenant made an application
before the Rent Controller for recalling the order dated June 11,
2009, amongst other grounds, on the ground that his affidavit as well
as the written statement that he has also paid Rs. 37,00,950/- to
the landlord by way of cheques has not at all been considered.
9. The tenant made another application on February 9,
2010 before the Rent Controller for calling upon the landlord to
provide list of his employees along with attendance register. This,
the tenant said, was required to prove the factum of payment made
by him to the landlord.
10. By yet another application, the tenant annexed copies of
cheques which were duly encashed by the Manager of the landlord.
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He claimed adjustment of those payments while assessing
provisional rent.
11. The landlord submitted reply to each of these
applications, denied their correctness and submitted that the
applications were not maintainable and have been made to delay
the eviction proceedings.
12. The Rent Controller considered all these applications
together and by her order dated April 7, 2010 rejected each one of
these applications. The Rent Controller held that there was no
provision of law under which the order dated June 11, 2009 could be
recalled/reviewed. It was held, relying upon a decision of this Court
in Rakesh Wadhawan and others v. Jagdamba Industrial
Corporation and others1, that on the failure of the tenant to comply
with the order of the provisional assessment of arrears of rent,
nothing remains to be done and order of eviction has to follow.
Accordingly, the Rent Controller passed the order of eviction
against the tenant on April 7, 2010.
13. The tenant preferred an appeal under Section 15(1)(b)
of the 1949 Rent Act before the Appellate Authority assailing the
1 (2002) 5 SCC 440
5
orders dated April 7, 2010 and June 11, 2009 passed by the Rent
Controller.
14. The Appellate Authority heard the parties and held that
the provisional assessment order dated June 11, 2009 was patently
illegal. The Appellate Authority, accordingly, allowed the appeal by
its order dated June 10, 2010, set aside the orders dated April 7,
2010 and June 11, 2009 passed by the Rent Controller and
remanded the matter to the Rent Controller with a direction to pass
fresh order regarding the provisional assessment of the arrears of
rent, interest and costs of the proceedings. The Appellate Authority
also directed the Rent Controller to give to the parties an
opportunity to produce the documents/affidavits in support of their
rival stand in respect of the rent.
15. The landlord challenged the order passed by the
Appellate Authority in the revision petition before the High Court of
Punjab and Haryana. The Single Judge of that Court held that since
the tenant did not avail his remedy to challenge the order fixing
provisional rent, during the period between the date of the order and
date fixed for payment, the Rent Controller had no choice but to
pass an order of eviction. The High Court, accordingly, by its order
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dated September 23, 2010 allowed the revision petition and set
aside the order of the Appellate Authority and restored the order of
the Rent Controller.
16. Section 13(2)(i) and the proviso appended thereto of the
1949 Rent Act reads as follows :
“S. 13. Eviction of tenants.—(1) ………………………………
(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 application 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;
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “
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17. The provision of appeal from an order passed by the
Rent Controller is made in Section 15 of the 1949 Rent Act. To the
extent it is relevant, it reads as under :
“S. 15. Vesting of appellate authority on officers by State Government.— (1)(a) ………………………………………………………
(1) (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.
2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ”
18. This Court had an occasion to consider Section 13(2)(i)
and the proviso appended thereto in the case of Rakesh
Wadhawan1 . The Court summed up the conclusions as follows :
“30. 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
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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 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.”
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19. The decision in Rakesh Wadhawan1 has been affirmed
by a 3-Judge Bench decision of this Court in the case of Vinod
Kumar v. Prem Lata2.
20. Mr. Rishi Malhotra, learned counsel for the tenant
argued that the High Court was in error in setting aside the order of
the Appellate Authority whereby matter was remanded to the Rent
Controller for re-fixation of the provisional rent. He would submit
that the Appellate Authority after considering the bank statements
submitted by the tenant held that the landlord had concealed
various payments which were tendered by the tenant. He referred
to the finding of the Appellate Authority that the Rent Controller did
not apply her mind while fixing the provisional rent and accepted the
figures submitted by the landlord in a mechanical manner without
considering the particulars of payment of rent furnished by the
tenant. He argued that since the order dated June 11, 2009
determining the provisional rent was patently illegal, the Appellate
Authority did not commit any error in upsetting that order in the
appeal preferred by the tenant.
21. Dr. Rajeev Dhawan, learned senior counsel for the
landlord, on the other hand, in support of the High Court’s order, 2 (2003) 11 SCC 397
10
made the following submissions : (i) the order determining
provisional rent is a foundational order and not an interlocutory
order; such order could have been challenged in appeal under
Section 15(1)(b) of the 1949 Rent Act within 15 days from the date
of passing that order and in no other way; (ii) in the appeal
challenging the eviction order dated April 7, 2010, the order
determining the provisional rent could not have been challenged and
such challenge was not maintainable; (iii) the only contention that
was raised by the tenant before the Rent Controller was that he had
invested huge amount of Rs. 58,98,370/- by raising loan from a bank
and the said amount was liable to be adjusted in the arrears of rent;
there was no contention raised about the payment of Rs. 37,00,950/-
having been made towards rent from April, 2007 to the landlord;
and (iv) the whole conduct of the tenant had been to prolong the
litigation and it was to achieve this objective that the tenant
continued to make applications one after the other before the Rent
Controller which could not be legally maintained and were frivolous
and without merit.
22. One thing needs to be noticed immediately that besides
the specific averment made by the tenant in the written statement that
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he has paid Rs. 37,00,950/- to the landlord towards rent from April
2007 and no rent was due and payable by him, in his affidavit dated
June 6, 2009, the tenant gave the details of the payment of Rs.
37,00,950/- having been made to the landlord from April, 2007. The
affidavit contains the cheque numbers, the dates on which such
cheques were issued and the amount of cheques. Dr. Rajeev
Dhawan, learned senior counsel for the landlord did not dispute the
receipt of the copy of the affidavit dated June 6, 2009 by the landlord
on June 11, 2009 before the matter was heard and considered by the
Rent Controller for determination of the provisional rent.
23. Curiously, the order dated June 11, 2009, whereby the
provisional rent was determined by the Rent Controller, does not
show any consideration of the affidavit dated June 6, 2009 filed by
the tenant.
24. The tenant was not satisfied with the order dated June 11,
2009 since the Rent Controller failed to consider the amount of Rs.
37,00,950/- which he claimed to have paid to the landlord towards
rent for the period from April, 2007 and, therefore, he made an
application on September 7, 2009 for recalling the order dated June
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11, 2009. This application was decided on April 7, 2010 and by the
same order, the eviction order was passed against the tenant.
25. Section 15(1)(b) of the 1949 Rent Act provides, to a
person aggrieved by an order passed by the Rent Controller, a
remedy of appeal. The Section provides for limitation for filing an
appeal from that order and also the forum to which such appeal
would lie. The provision, for maintaining the appeal, does not make
any difference between the final order and interlocutory order passed
by the Rent Controller in the proceedings under the 1949 Rent Act.
There is no specific provision in the Section that if a party aggrieved
by an interlocutory order passed by the Rent Controller does not
challenge that order in appeal immediately, though provided, and
waits for the final outcome, whether in the appeal challenging the
final order of the Rent Controller, the correctness of the interlocutory
order from which an appeal lay could or could not be challenged in
the appeal from the final order.
26. The observations made by the Privy Council more than a
century and five decades back in Maharajah Moheshur Sing v. The
Bengal Government3 deserve to be recapitulated. The Privy Council
stated: 3 (1859) 7 Moore’s Indian Appeals 283
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“………We are not aware of any law or Regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory Order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting for ever the benefit of the consideration of the appellate Court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of Justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities. We believe there have been very many cases before this Tribunal in which their Lordships have deemed it to be their duty to correct erroneous interlocutory Orders, though not brought under their consideration until the whole cause had been decided, and brought hither by appeal for adjudication.”
27. It is appropriate that some of the provisions of the Code of
Civil Procedure, 1908 (for short ‘Code’) are noticed for consideration
of the question raised before us. Sections 97, 104 and 105 of the
Code read as under :
“97. Appeal from final decree where no appeal from preliminary decree. – Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
104. Orders from which appeal lies. – (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (ff) an order under section 35A;
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(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be; (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section. 105. Other orders. – (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.”
28. The Calcutta High Court in Nanibala Dasi and Another v.
Ichhamoyee Dasi and others4 was concerned with a question as to
whether the challenge to preliminary decree in a suit for partition
4 AIR 1925 Cal 218
15
could be made in a case where the final decree in the suit had
already been made by the Subordinate Judge and no appeal against
the final decree was then or has at any time been filed. The High
Court referred to some of its earlier decisions, namely, Baikunta Nath
Dey v. Nawab Salimulla Bahadur5 , Mackenzie v. Narsingh Sahai6 ,
Khirodamoyi Dasi v. Adhar Chandra Ghose7, Sadhu Charan Dutta v.
Haranath Dutta8, Kuloda v. Ramanand9 and held that the right of
appeal from interlocutory order ceases after disposal of the suit and
that rule is equally applicable to suits in which there is first a
preliminary decree and ultimately a final decree.
29. On the other hand, in Syed Ishak Syed Farid and another
v. Kunjbihari Singh Sirdhujasingh Kshatriya10, the Division Bench of
Nagpur High Court held as under :
“The contention on the other side is that the Legislature has conferred a right of appeal against, an order refusing to extend time, and that an aggrieved party must be afforded an opportunity of exercising the right so conferred, especially as there is danger of it being held hereafter that as the orders in question were appealable, matters decided in them will be final in the absence of an appeal, and that they cannot be re-agitated hereafter in an appeal against the final decree. The learned Counsel urging this contention relied on the analogies of preliminary
5 (1907) 6 C.L.J. 647 6 (1909) 36 Cal 762 7 (1912) 18 C.L.J. 321 8 (1914) 20 C.W.N. 231 9 A.I.R. 1921 Cal. 109 10 A.I.R. 1940 Nagpur 104
16
decrees and of orders of remand against a decision of a trial Court on a preliminary point. S. 105(1), Civil P.C., is in these terms:
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A right of appeal is a valuable right, and we do not think that the Legislature after conferring it in such express terms in Section 104 would take it away by implication in a large class of cases in the next Section. An enabling Section which confers additional rights in certain cases cannot, we think, be read as taking away rights which have already been expressly conferred, especially when they are such valuable and cherished rights as those of appeal. We also feel that if a right of appeal is once conferred, then in the absence of anything curtailing it, full opportunity must be afforded to an aggrieved party to exercise it. If he does exercise it and succeed, then any subsequent proceedings which militate against any rights he obtains in the appeal fall to the ground.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
when the law gives a person two remedies he is entitled to avail himself of either of them unless they are inconsistent.”
[Emphasis supplied by us]
30 The order passed by the Rent Controller determining the
provisional rent in an eviction petition based on the ground of default
in a situation where the tenant fails to comply with that order may be
a foundational order for an order of eviction that follows but
nevertheless such order is an interlocutory order as that order does
17
not determine the principal matter finally; it is only the order on
subordinate matter with which it deals.
31. Section 15(1)(b) of 1949 Rent Act provides that a person
aggrieved by an order passed by the Rent Controller may prefer
appeal to the Appellate Authority within the time prescribed therein; it
does not say that if any aggrieved person by an interlocutory order
passed by the Rent Controller from which an appeal lies does not
appeal therefrom, he shall thereafter be precluded from disputing its
correctness. There is no provision in Section 15(1)(b), a provision
like Section 105 (2) and Section 97 of the Code.
32. 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.
33. It is true that an order of eviction follows as a matter of
course if there is non-compliance of the order determining the
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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 correctness of such provisional order when put in
issue.
34. In view of the above legal position, we shall now advert
to the facts of the present case. The tenant at the first available
opportunity i.e., in his written statement filed on April 24, 2009
averred that he has been paying the rent to the landlord by cheques
and from April 1, 2007, he has paid rent of Rs. 37,00,950/- to the
landlord. As a matter of fact, the tenant by his counter claim prayed
for refund of the excess payment made to the landlord. Then he filed
his affidavit dated June 6, 2009 setting out the details of the
payments made towards rent from April, 2007.
35. The landlord relied upon his ledger account to show that
the tenant was in arrears of rent. According to the landlord, he
received the payment as under:-
Date Debit Credit
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9.4.2007 173643.75p - 26.4.2007 - 163250 26.4.2007 - 10000 9.5.2007 173643.75p - 9.6.2007 173643.75p - 9.7.2007 173643.75p - 18.7.2007 - 163250 18.7.2007 - 10000 9.8.2007 182325.94p - 9.9.2007 182325.94p - 27.9.2007 - 10000 28.9.2007 - 163250 9.10.2007 182325.94p - 27.10.2007 - 10000 8.11.2007 - 171900 8.11.2007 - 10000 9.11.2007 182325.94 - 1.12.2007 - 163250 3.12.2007 - 10000 9.12.2007 182325.94 - 10.12.2007 - 10000 11.12.2007 - 171900 9.1.2008 182325.94p - 9.2.2008 182325.94p - 9.3.2008 182325.94p - 9.3.2008 182325.94p - 1.4.2008 - Opening
Balance 450000 (security amt.)
15.4.2008 - 528400 15.4.2008 450000 (amount
given through Cheque)
-
9.5.2008 182325.94p - 13.5.2008 - 181900 9.6.2008 182325.94p - 12.6.2008 202900 (amount
given through Cheque)
-
12.6.2008 350000 (amount -
20
given through Cheque
12.6.2008 450000 (amount given through Cheque)
-
9.7.2008 182325.94p - 9.8.2008 150000 - 9.9.2008 150000 - 9.10.2008 150000 21.8.2008 - 40000 22.8.2008 - 60000 9.11.2008 150000 - Total 49,35,386-28 24,99,000/-
36. On the other hand, the tenant in his affidavit dated June
6, 2009 gave the details of the payments made to the landlord
towards rent from the month of April, 2007 as under :
Cheque No.
“Dated for Rs.
i) 011862 30.3.2007 1,63,250.00 ii) 011861 30.3.2007 10,000.00 iii) 011863 25.4.2007 1,63,250.00 iv) 011864 25.4.2007 10,000.00 v) 011868 16.7.2007 1,63,250.00 vi) 011867 16.7.2007 10,000.00 vii) 011885 24.9.2007 10,000.00 viii) 011886 24.9.2007 1,63,250.00 ix) 011887 25.10.2007 1,71,900.00 x) 011888 25.10.2007 10,000.00 xi) 011889 6.11.2007 1,71,900.00 xii) 011890 6.11.2007 10,000.00 xiii) 011892 30.11.2007 1,63,250.00 xiv) 011893 3.11.2007 10,000.00 xv) 011894 5.12.2007 10,000.00 xvi) 011895 5.12.2007 1,71,900.00
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xvii) 4789 11.4.2008 5,28,400.00 xviii) 4790 18.4.2008 5,45,700.00 xix) 4791 10.5.2008 1,81,900.00 xx) 4794 12.6.2008 2,75,000.00 xxi) 4795 12.6.2008 3,25,000.00 xxii) 4796 13.6.2008 4,00,000.00 xxiii) 4797 13.6.2008 1,80,000.00 xxiv) 116150 20.8.2008 60,000.00 xxv) 116151 20.8.2008 40,000.00 xxvi) 116152 20.8.2008 50,000.00
Total Rs. 37,00,950.00
37. The Rent Controller, apparently, did not consider the
statement given by the tenant at all and relied upon the ledger
account submitted by the landlord and in his order dated June 11,
2009 held that an amount of Rs. 27,84,875.04 was due and payable
by the tenant towards the arrears of rent. Since the Rent Controller
failed to even consider the statement of payment tendered by the
tenant, the tenant made an application for recall of the order dated
June 11, 2009. The Rent Controller dismissed the application for
recall and two other applications made by the tenant by a common
order and also passed an order for eviction of the tenant on April 7,
2010 as the tenant failed to comply with the order dated June 11,
2009 determining the provisional rent.
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38. The tenant challenged the order dated April 7, 2010 and
also the order dated June 11, 2009 in appeal. The Appellate
Authority considered the material that was available before the Rent
Controller for determination of rent, particularly, the two statements,
one filed by the landlord and the other by the tenant, and on
comparison thereof found that the entire payments made by the
tenant have not been reflected in the ledger account submitted by
the landlord. This is what the Appellate Authority observed :
“Thus, it is apparent that the entire payments made by the respondent/tenant are not reflected in the account books of the respondent/landlord. The appellant/tenant has also raised a plea that he had made the payment of Rs. 2,75,000/- to the respondent, vide cheque No. 4794 dated 12.6.2008, Rs. 3,25,000/- vide cheque No. 4795 dated 12.6.2008, Rs. 4,00,000/- vide cheque No. 4796 dated 12.6.2008 and Rs. 1,80,000/- vide cheque No. 4797 dated 12.6.2008. The said cheques were the bearer cheques and were allegedly got encashed by the Manager of the respondent. However, this Court need not enter into the controversy as to if the payment of the bearer cheques, was received by the respondent/landlord or not as it would be for the Ld. Rent Controller to consider this question. However, the assessment order dated 11.6.2009 passed by the Ld. Rent Controller is patently illegal and erroneous. From the perusal of the said order, it is made out that Ld. Rent Controller did not apply his mind and accepted the figures mentioned by the respondent/landlord in the rejoinder in the mechanical manner. The Ld. Rent Controller has not
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mentioned anything that as to how the amount of about Rs. 14,52,900/- paid by the respondent/landlord to the tenant was being treated as arrears of rent. The Ld. counsel for the respondent could be claimed as arrears of rent [sic]. He tried to wriggle out of the situation by submitting that the tenant had agreed to repay the said amount with the rent. However, even on this the said amount could not be treated as arrears of rent. Moreover, the amount of Rs. 5,45,700/- which was received by the respondent/landlord from the tenant even as per the statement of account pertaining to the bank account of the respondent was not adjusted. The Ld. Rent Controller did not consider these aspects of the case at all.”
39. The Appellate Authority held that the order dated June 11,
2009 was patently illegal; the tenant was called upon to tender much
more amount than was actually due as arrears of rent and,
accordingly, by its order dated June 10, 2010 set aside the orders
dated April 7, 2010 and June 11, 2009 and remanded the matter to
the Rent Controller with a direction to pass fresh order of provisional
assessment of arrears of rent, interest and costs of the proceedings
as contemplated by Section 13(2)(i) proviso of the 1949 Rent Act.
40. The High Court, however, held that as tenant did not
avail of his remedy to challenge the order fixing provisional rent
during the period between the date of the order and date fixed for
payment, the Appellate Authority could not have gone into the merits
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of such determination and, accordingly, set aside the order of the
Appellate Authority. In our view, the High Court fell into grave error
in what it held. The legal position, in our opinion, is this: Where a
tenant does not challenge the order of the fixation of provisional rent
passed under Section 13(2)(i) proviso in appeal under Section
15(1)(b) and also fails to comply with that order, the order of eviction
must follow as per the provisions contained in the 1949 Rent Act but
when the tenant challenges the order of eviction in appeal and therein
also challenges the order determining the provisional rent, it is not
open to the Appellate Authority to refuse to consider the legality and
validity of the order determining the provisional rent on the ground
that the correctness of such order cannot be examined as no appeal
was filed from that order though an appeal lay therefrom.
41. On the facts of the present case, the Appellate Authority
did not commit any error in calling upon the Rent Controller to
determine the arrears of rent, interest and costs afresh as the
tenant’s statement of payments towards rent from April, 2007 was not
at all referred to and considered by the Rent Controller. If the order
of the High Court is allowed to stand, it would occasion in manifest
injustice and result in miscarriage of justice inasmuch as the tenant
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would be thrown out of the leased premises although he may not
have been in arrears of rent. In the circumstances, re-determination
of arrears of rent, interest and costs by the Rent Controller, as
directed by the Appellate Authority, would subserve the ends of
justice. If on re-determination, the tenant is found in arrears of rent
and does not deposit/pay the amount as determined by the Rent
Controller in time, as may be directed, obviously he would suffer the
order of eviction.
42. In the result, the appeal is allowed. The order dated
September 23, 2010 passed by the High Court is set aside and the
order dated June 10, 2010 passed by the Appellate Court, S.A.S
Nagar (Mohali) is restored. The parties shall bear their own costs.
…………………….J. (Aftab Alam)
.………………….. J. (R.M. Lodha)
NEW DELHI. MAY 13, 2011.
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