Punjab-Haryana High Court
Deep Chand vs Devinder Parshad on 30 May, 2003
Equivalent citations: (2003)135PLR449, 2003 A I H C 4022, (2003) 2 RENCR 312, (2003) 4 RECCIVR 97, (2003) 3 CIVILCOURTC 351, 2003 HRR 553, (2004) 2 LANDLR 305, (2003) 3 PUN LR 449, (2003) 2 RENTLR 471
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This order shall dispose of Civil Miscellaneous No. 22381-CII of 2002 as well as Civil Revision No. 62 of 1984.
2. Deep Chand tenant (now deceased), filed the instant revision petition against the order of ejectment passed against him by the Rent Controller, Hisar as well as the Appellate Authority Hisar on the ground of non-payment of rent.
3. The demised premises in this case are two adjoining rooms which are on rent with the petitioner at monthly rent of Rs. 32/- (Rs. 16/- for each room). The respondent-landlord filed an ejectment application against the petitioner on the grounds of non-payment of rent and change of user. The said ejectment application was allowed by the learned Rent Controller on 24.3.1981 only on the ground of change of user as the petitioner paid the claimed arrears of rent on the first date of hearing. Against that order, the respondent-landlord filed an appeal before the Appellate Authority. In that appeal, ejectment order was stayed. Thereupon, the respondent-landlord filed an application for vacation of stay on 25.5.1981 alleging that the petitioner was not paying rent of the demised premises, therefore, the stay be vacated. On that application the Appellate Authority, on 28.5.1981, ordered that the stay granted to the petitioner shall remain operative subject to deposit of arrears of rent by him with effect from 1.5.1980 to 31.5.1981. In compliance of that order, on 2.6.1981, the petitioner deposited an amount of Rs. 416/-, towards rent from 1.5.1980 to 31.5.1981, vide challan mark RA which is available on the record of the learned trial court at page 21. Subsequently, the Appellate Authority, vide order dated 13.8.1981 dismissed the appeal of the petitioner. However, the said orders of ejectment were set aside by this Court in Civil Revision No. 2236 of 1981 on 15.11.1983 and the ejectment application filed by the respondent-landlord was dismissed.
4. During the pendency of the aforesaid appeal before the Appellate Authority, the respondent-landlord filed a fresh application for ejectment of the tenant under Section 13 of the Haryana Urban (Control of Rent and Eviction) Haryana Act, 1973 (hereinafter referred to as the Rent Act') on 11.4.1981 only on the ground of non-payment of arrears of rent from 1.5.1980 till the date of filing of the application (which is the application in question now). Pursuant to the notice issued to the petitioner in the said ejectment application, the petitioner-tenant appeared on 14.8.1981 and the case was adjourned to 28.8.1981 for tendering the rent etc. On that date, the petitioner made the statement that he had already paid the rent for the relevant period i.e. from 1.5.1980 to 30.4.1981, therefore, no arrears of rent was due towards him and thus, he did not want to tender any rent. Thereafter, on 29.9.1981, the petitioner filed written statement, in which he has specifically stated that he had already paid the arrears of rent claimed by the respondent under the order of the Appellate Authority, therefore, the ejectment application is liable to be dismissed. In replication, the respondent-landlord did not dispute the aforesaid fact. However, it was pleaded as under:
"The alleged rent deposited on 2.6.1981 is not a legal deposit nor the petitioner is bound and that rent was deposited only to get the stay order. The petitioner has not realised that amount."
5. On the pleadings of the parties, the learned trial court framed the following issues:
1. Whether the arrears of rent have already been paid? OPR
2. respondent is liable to pay rent and interest? OPP
3. What is the effect of non-payment of rent and interest and costs? O.P. Parties.
4. Relief.
6. It is specifically mentioned here that in the instant case, both the parties neither examined any witness nor themselves appeared in the witness box as their own witness. Only the documents were tendered by them in evidence. The learned Rent Controller, vide his order dated 12.1.1983, passed the order of ejectment while holding that the petitioner could not establish that for which period the payment of rent was made vide challan dated 2.6.1981, mark RA. Therefore, the payment of rent of the relevant period alleged by him did not establish. It was further held that even otherwise, the petitioner did not tender interest and costs of the application, therefore, he was ordered to be ejected.
7. Feeling aggrieved against the said order, the petitioner filed an appeal before the Appellate Authority. During the pendency of the said appeal, the petitioner also filed an application for permission to adduce additional evidence and to place on record the certified copy of the order dated 28.5.1981 passed by the Appellate Authority in the previous litigation, under which he had deposited the rent amount in question and the copy of challan vide which the amount was deposited on 2.6.1981. The said application was allowed by the Appellate Authority and the petitioner was permitted to place on record the aforesaid documents. Thereafter, the petitioner placed on record certified copy of the order dated 28.5.1981 and photo copy of the challan mark RA, vide which an amount of Rs. 416/- as arrears of rent for the period from 1.5.1980 to 31.5.1981 was deposited on 2.6.1981. In spite of the aforesaid documents being available on record, the learned Appellate Authority, vide his order dated 31.10.1983, dismissed the appeal of the petitioner while observing as under:
"8. The trial court has held that tenant was duty bound to establish that he has paid the arrears of rent but it is not established on record that he has paid rent. In the trial court, no evidence was produced by the tenant to prove the deposit of rent and in appeal though he was allowed additional evidence in this court to prove the payment or deposit but still nothing has been brought on record which may establish the deposit of rent in the court. He has not tendered the costs and interest within 15 days of the first date of hearing and, therefore, it cannot be said that he was not in arrears of rent and had complied with the proviso of Section 13 of Haryana Urban (Control of Rent and Eviction) Act, 1973. So I do not see any reason to set aside the findings recorded by the trial court over issues No. 1, 2 and 3 and thus, same are hereby affirmed."
8. Against the aforesaid orders of the Courts below, the instant revision petition was filed by the petitioner-tenant and the same was admitted on 24.2.1984.
9. After 18 years, when the matter was put up for regular hearing, learned counsel for the respondent-landlord raised an objection on 30.10.2002 that since the sole petitioner had expired on 5.8.1988 and no effort was made by his LRs to bring themselves on record within the time prescribed, therefore, the instant revision petition filed by the petitioner has abated. Thereupon, Ram Niwas, one of the legal representatives of the deceased petitioner filed Civil Miscellaneous No. 22381-CII of 2002 for impleading him as the petitioner and the remaining LRs of the deceased as proforma respondents. The respondent-landlord opposed the aforesaid application on the ground that an application for impleading the LRs of deceased petitioner could have been filed under Order XXII Rule 3 of the Code of Civil Procedure (hereinafter referred to as 'the Code') within a period of three years from the date of the death of the petitioner. Since no such application was filed within the prescribed period of limitation and the same has been filed after 14 years of the death of Deep Chand petitioner, therefore, the application filed by legal representatives of the petitioner does not lie and the instant revision petition filed by the petitioner-tenant should be deemed to have been abated under Order XXII Rule 3(2) of the Code, after the expiry of period of limitation, and the said abatement cannot be set aside as the legal representatives of the petitioner have failed to show sufficient cause for setting aside the abatement of the petition.
10. I have heard the arguments of learned counsel for both the parties on this application as well as on the merits of the petition and have perused the record of the case.
11. Regarding the application for impleading the LRs of the deceased petitioner and for setting aside the alleged abatement of the petition, learned counsel for the petitioner submitted that the revision petition was admitted in the year 1984 and thereafter, the same was put up for regular hearing only in the year 2002. Since the matter was not taken up during the said period, the LRs of the deceased petitioner could not get the knowledge of the pendency of the instant revision petition. Even they were not having any knowledge of the counsel engaged by their father Deep Chand for pursuing the instant petition. When the counsel addressed letter to the party, the applicant came to know about the pendency of the revision petition and the address of the counsel. Immediately thereafter, he filed application for bringing on record the legal representatives of the deceased petitioner. It was further submitted by learned counsel for the petitioner that the strict provisions of abatement of the appeal under Order XXII Rule 3(2) of the Code are not applicable on the instant petition as the provisions of the Code are not strictly applicable in the proceedings under the Rent Act. He further submitted that this Court has even amended the provisions of Order XXII Rule 3 of the Code vide amendment dated 4.2.1992, which was notified in the Gazette on 25.2.1992, according to which if an application for bringing on record the LRs of the plaintiff or appellant is not filed within the prescribed limitation, then the suit or the appeal shall not be abated. Learned counsel for the petitioner further submitted that undisputedly the tenancy in question of the petitioner was heritable after his death, therefore right to sue survives. Therefore, the are legally entitled to be impleaded as petitioners, so that they can defend their rights, which they have inherited from their father.
12. On the other hand, learned counsel for the respondent-landlord argued that the provisions of Order XXII Rule 3 of the Code are applicable to the Rent Act. In this regard, he has referred to Union of India v. Ram Chandran (deceased) through his Legal Representatives, A.I.R. 1964 Supreme Court 215 and Chandradeo Pandey and Ors. v. Sukhdeo Rai and Ors., A.I.R. 1972 Allahabad 504. It was further submitted that the amendment made by this Court in Order XXII Rule 3 of the Code, vide notification dated 25.2.1992, is prospective in nature, as held by this Court in Bija v. Raja Ram and Ors., (1998-1) 118 P.L.R. 493. Therefore, LRs of the deceased petitioner are not entitled for the benefit provided under the said amendment as the petitioner had expired long back in the year 1988 and the instant revision petition filed by him stood abated in the year 1991. Learned counsel further argued that the LRs of the deceased petitioner were very much aware of the pendency of the aforesaid revision petition and they have not shown any sufficient cause for setting aside the abatement of the revision petition.
13. After hearing the arguments of learned counsel for the parties. I am of the opinion that the application filed by the legal petitioner cannot be said to have been abated. Undisputedly, the tenancy held by the petitioner was heritable and the same was inherited by his legal heirs. After the death of the tenant right to sue survives. Against the ejectment orders passed by both the Courts below, the instant revision petition was filed by the petitioner Deep Chand in the year 1984 and the same was admitted on 24.2.1984. Thereafter, the matter was taken up for regular hearing only in the year 2002. Admittedly, during the pendency of the revision petition, the petitioner expired in the year 1988. His legal heirs were neither aware of the pendency of the revision petition nor about the address of the Advocate, who filed the petition. When in the year 2002, applicant LRs received letter of the Advocate, engaged by his father Deep Chand, he came to know about the pendency of the revision petition and immediately filed the application for impleading the legal representatives of the deceased petitioner as party to the revision petition. This application has been opposed by the respondent-landlord on the ground of limitation and the revision petition filed by the petitioner being abated by taking recourse to the strict provisions of Order XXII Rules 3 and 9 of the Code.
14. The question for determination in this regard is "whether the strict provisions of Order XXII of the Code are applicable to the revision petition filed under the Rent Act."
15. It is clear from the language in Section 16 of the Rent Act that only certain specific provisions of the Code have been made applicable to the proceedings under the Act. This section gives the Rent Controller and the Appellate Authority power of summoning and enforcing the attendance of witnesses and compelling the production of evidence. The provisions under the Rent Act are summary in nature. All strict provisions of the Code are not applicable to the proceedings under the Rent Act. In Goverdhan Dass v. Sodhi Dayal Singh and Anr., 1969 Rent Control Reporter 938, the question pertaining to the applicability of Order 23 Rule 1(3) of the Code to withdraw the proceedings with liberty to file a fresh application at the appellate stage in the Act was involved. While dealing with this question, this Court held as under:
"It is now well settled that the Rent Control Act is a complete Code and the Rent Controller and the Appellate Authority cannot go outside the provisions to arm themselves with the powers which a Court normally has under the Code of Civil Procedure. The provisions of the Code of Civil Procedure are only applicable to rent control proceedings to a very limited extent. Suffice it to say that the provisions of Order 23 Rule 1, Civil Procedure Code have not been made applicable. In fact it has been held that there is no power of remand with the appellate Authority in the Rent Control proceedings (See inter alia the decision in Krishan Lal Seth v. Pritam Kumar, I.L.R. 1962(1) Punjab 310). It follows a fortiori that there is power with the Appellate Authority to permit withdrawal of the application for eviction."
16. Subsequently, about the applicability of the Code on the proceedings under the Rent Act, a Division Bench of this Court in Ram Dass v. Sukhdev Kaur and Ors., (1981)83 P.L.R. 440 has held as under:
"The Civil Procedure Code as such does not govern the proceedings under the Act, except to the limited extent provided for under Sections 16 and 17 thereof. Even by applying these provisions most liberally one cannot bring in either expressly or by necessary implication the rest of the provisions of the Civil Procedure Code. In particular it would be evidence that the specific and detailed provisions of Order 23 Rule 1 of the Civil Procedure Code would not, therefore, be applicable proprio vigore to the rent jurisdiction. The Controllers and the Appellate Authorities being persona designate are entitled to devise their own procedure within the confines prescribed by the Act itself."
17. Similarly, on the aforesaid question, a Division Bench of this Court in Ved Parkash v. Om Parkash Nirwania, (1982)1 Indian Law Reports Punjab and Haryana 106 has held as under:
"...a bare look at the various sections of the East Punjab Urban Rent Restriction Act, 1949 in general and to the provisions of Sections 16 and 17 in particular would make it manifest that it is only for the very limited purposes specified in these two sections that the relevant provision of the Code of Civil Procedure are attracted to the proceedings before the Rent Controller and the subsequent execution of the orders made by the original and the appellate authorities thereunder. It is well settled that beyond the circumscribed limits of Sections 16 and 17 of the Act in which the relevant sections of the Code of Civil Procedure may be attracted, the Rent Controller is not bound by any intricate shackles and is wholly free to devise his own procedure in the field or area not covered by Section 16."
18. Similarly, in Inderjit Pal v. Shanker (1985-1)87 P.L.R. 377, this Court has considered the applicability of the provisions of Limitation Act on the rent proceedings under the East Punjab Urban Rent restriction Act, 1949 and held as under:
"...It is now well settled that Rent Controller is not a Court. He is an officer persona designata, specially authorised to adjudicate upon disputes relating to urban property concerning ejectment and determination of fair rent of urban properties. The provisions of Limitation Act are not applicable to the proceedings before the Rent Controller exercising jurisdiction under the Act. The provisions of the Limitation Act are not applicable to the applications for setting aside ex-parte orders. No limitation has been prescribed by the Act for this purpose."
19. In Mehtab Singh, Advocate v. Tilak Rai Arora and Anr., (1988-1)93 P.L.R. 269, a Division Bench of this Court has held that the provisions of Section 11, Order 2 Rule 2, Order 9 Rule 9 and Order 2 Rule 1(4) of the Code are not applicable in terms to the proceedings before the Rent Controller under the Rent Act. In Dharam Paul v. Roshan Lal, 1980(1) R.C.R., 503, this Court has held that the Rent Act is a complete Code in itself and by Section 16 of the Rent Act, the provisions of the Code have been made applicable to a very limited extent i.e., provisions regarding summoning and enforcing the attendance of witnesses and compelling the production of evidence. The other provisions of the Code have not been advisedly made applicable by the Legislature. In the Rent Act, there is no provisions for treating any issue as a preliminary issue, as provided under Order XIV Rule 2 of the Code. The provisions contained in Order XXII Rule 3(2) of the Code are certainly rigorous provisions as it provides for abatement of the suit or appeal, when the application under Order XXII Rule 3 of the Code for impleading LRs of the plaintiff or the appellant has not been filed within the prescribed period of limitation. The Hon'ble Apex Court in Puran Singh v. State of Punjab, 10 (1996-2)113 P.L.R. 700 (S.C.) has held that the provisions of Order XXII of the Code are not applicable to writ proceedings.
20. Since the provisions under the Rent Act are summary in nature and only specific provisions of the Code have been made applicable by Section 16 of the Act, I am of the opinion that the rigorous provisions of Order XXII Rules 3(2) of the Code are not applicable to the revision filed under the Rent Act. The revisional Court has the inherent power to allow the legal representatives of a deceased petitioner to get themselves impleaded to pursue the revision petition. For that purpose, there is no limitation and the revision petition filed by an aggrieved party cannot be held to be abated merely because the application for impleading his legal representatives was filed after three years of his death. The decision cited by learned counsel for the respondent-landlord in Union of India v. Ram Charan (deceased) through his Legal Representatives, (supra) to the effect that the Court has no inherent power under Section 151 of the Code for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased, is not applicable to the present case, because in the said judgment the provisions of Order XXII of the Code were applicable as the appeal was filed under the Code. Similarly, the decision rendered by the Full Bench of this Court in Smt. Vidya Devi v. Firm Madan Lal Prem Kitmar, (1971)73 P.L.R. 61 is not applicable to the facts and circumstances of the present case. In that case it has been held that the Rent Controller and the Appellate Authority under the Rent Act fall under the definition of 'Courts of Justice' as defined in Section 20 of the Indian Penal Code for the purposes of Sections 195(1)(b), 476 and 479-A of the Code of Criminal Procedure. Therefore, I am of the opinion that the revision petition filed by the deceased petitioner was not abated or deemed to have been abated under Order XXII Rule 3(2) of the Code and this Court has inherent powers to implead the legal representatives of the deceased petitioner to pursue this petition, which was filed by their father 18 years back and it has now been taken for regular hearing.
21. In view of the aforesaid discussion, the Civil Miscellaneous No. 22381-CII of 2002, filed by Ram Niwas, one of the legal representatives of the deceased petitioner, is allowed and he is impleaded as petitioner, whereas the other legal representatives of the deceased petitioner are impleaded as proforma respondents in the instant revision petition.
22. On merit, learned counsel for the legal representative of the petitioner submitted that the impugned orders passed by the Courts below are illegal and against the evidence available on the record. He submitted that both the Courts below have wrongly come to the conclusion that the petitioner had neither paid the arrears of rent nor had tendered the same alongwith costs of the application and interest within 15 days of the first date of hearing. He submitted that in the instant case, the respondent-landlord has sought the ejectment of the petitioner only on the ground of non-payment of rent from 1.5.1980 to the date of filing of the application i.e. 11.4.1981. Thus, the rent claimed in the ejectment application, which was due on 11.4.1981, was from 1.5.1980 to 31.3.1981. On the first date of hearing, the petitioner made the statement that he had already paid the claimed rent, therefore, he is not liable to pay any rent. On 29.9.1981, the petitioner-tenant filed written statement, in which he averred that the rent of the demised premises was Rs. 32/- per month, inclusive of house tax. He further averred that no amount of rent was due when the instant ejectment application was filed by the respondent-landlord. In this regard, he averred that he deposited Rs. 640/- as rent from 1.1.1977 to 31.8.1977 in an earlier ejectment application in the Court of Rent Controller with interest and costs. Thus, he gave 12 months rent in excess to the respondent-landlord due to mistake. It has been further averred by the petitioner-tenant that he again deposited rent from 1.9.1977 to 30.6.1980 in the Court of Rent Controller on 16.7.1980 in another ejectment application filed by the respondent-landlord. Thereafter, on 2.6.1981, he deposited Rs. 416/- as rent for the period from 1.5.1980 to 31.5.1981. This time also, he deposited two months' excess rent for the months of May and June, 1980, which he had already paid to the respondent-landlord. Learned counsel for the petitioner thus submitted that the aforesaid averments made by the petitioner-tenant have not been affectively denied by the respondent-landlord in his replication. The reply in this regard is evasive. Learned counsel further submitted that the respondent-landlord did not appear as a witness in support of the petition filed by him. He submitted that from the aforesaid facts, it is clear that earlier the petitioner-tenant had paid 12 months rent in excess and then again, he had paid 2 months rent in excess. Learned counsel for the petitioner further pointed out that the petitioner-tenant never refused to pay rent to the respondent-landlord and whenever he wanted to pay rent, the respondent-landlord and whenever he wanted to pay rent, the respondent-landlord did not accept the same. The respondent-landlord has not stepped into the witness box to state that the arrears of rent was not tendered by the petitioner-tenant at due time, therefore, it cannot be said at all that the respondent-landlord was entitled for any interest on the rent, which according to him was paid after due date.
23. On the other hand, learned counsel for the respondent-landlord has submitted that the petitioner-tenant has not proved on record the various deposits made by him before the Rent Controller. He submitted that if any excess amount was paid by the petitioner-tenant in the earlier ejectment application, the same cannot be adjusted toward: rent. However, the petitioner-tenant could have filed an appropriate application for getting the same refunded. Since no such application was filed in time, therefore, the claim of the petitioner-tenant for refund of excess amount of rent paid by him became time barred. As far as the amount deposited by the petitioner-tenant on 2.6.1981 is concerned, learned counsel for the respondent-landlord submitted that the same could not be deemed to be valid payment of rent in the instant ejectment application as the said amount was paid by the petitioner-tenant in appeal pertaining to the earlier ejectment application. He further submitted that even if it is taken that the said amount of rent had been paid, then the petitioner-tenant did not tender the amount of costs of the ejectment application and interest on the arrears of rent, which he was also liable to tender within the stipulated period of 15 days of the first date of hearing. In support of his contention, learned counsel placed reliance upon the decision of this Court in Mehnga Singh and Ors. v. Dewan Dilbagh Rai and Ors., (1971)73 P.L.R., 57, Ganesh Das v. Tarjit Singh and Ors., 1973(2) All India Rent Control Journal, 343, Ram Sarup Ashok Kumar v. Inderjit Kaur, 1982(1) All India Rent Control Journal 445 and Badri Parshad v. Rameshwar Doss, 1985(1) Rent Control Reporter 3.
24. I have heard the arguments of learned counsel for both the parties on merit of the case and have perused the records of the Courts below. In the ejectment application, the respondent-landlord claimed the rent from 1.5.1980 till the date of filing of the application. The application for ejectment was filed on 11.4.1981. On that date, the rent was due upto 31.3.1981. Therefore, the rent claimed in the ejectment application was from 1.5.1980 to 31.3.1981 i.e. for 11 months, which comes to Rs. 352/-.
25. Now, the question is "whether it can be said that on the first date of hearing the amount of rent for the period from 1.5.1980 to 31.3.1981 was due?" In my opinion, the said amount was not due on the fist date of hearing, as the petitioner had already paid the rent for the said period to the respondent-landlord. From the written statement filed by the petitioner-tenant, it is clear that he deposited Rs. 640/- as rent for the period from 1.1.1977 to 31.8.1977. The said rent was in excess for 12 months. For the second time, the petitioner-tenant paid rent in the Court for the period from 1.9.1977 to 30.6.1980. For the third time, he paid rent on 2.6.1981 for the period from 1.5.1980 to 31.5.1981. This time, he paid 2 months' rent in excess as rent for the months of May and June, 1980 had already been paid by him. Thus, on 14.8.1981, when the petitioner-tenant appeared for the first time in the instant ejectment application, no rent was due towards him. He had already paid 14 months' rent in excess. Since the respondent-landlord did not appear in the witness box to deny the payment of rent made by the petitioner-tenant in his written statement, an adverse inference has to be drawn against him. Therefore, I am of the opinion that the finding recorded by the Courts below to the effect that the petitioner-tenant did not produce any evidence to prove that he was not in arrears of rent, is wholly illegal and contrary to the records and the same is hereby set aside. I am further of the opinion that on 14.8.1981, when the petitioner-tenant appeared for the first time before the Rent Controller, he was not in arrears of rent, rather he has paid the excess rent to the respondent-landlord.
26. The second question which arises in the instant petition is "whether the petitioner was liable to tender interest on the rent claimed and costs of the ejectment application on the fist date of hearing?" The question of payment of interest and costs would have arisen only if the petitioner-tenant was in arrears of rent and had not tendered the rent in due time for payment to the respondent-landlord. Since I have already found that the petitioner-tenant was not in arrears of rent on 14.8.1991, when he appeared for the first time before the Rent Controller, and actually he had made the excess payment of rent to the respondent-landlord, therefore, the question of payment of interest and costs does not arise. Secondly, the liability to pay interest on the delayed payment of rent arises under the proviso to Section 13(2)(i) of the Rent Act, only if the tenant has not paid or tendered the rent due in respect of building within 15 days after the expiry of time fixed in the agreement of tenancy for payment of rent. In the instant case, neither any averment has been made by the respondent-landlord to the effect that the petitioner-tenant did not pay or tender rent due from him within 15 days after the expiry of stipulated time for payment of rent nor he had appeared in the witness box to make such statement before the Court. In absence of such factual assertion by the respondent-landlord and the proof thereof, it cannot be presumed that the petitioner-tenant did not pay or tender rent due from him in respect of the demised premises within 15 days after the expiry of period fixed for tenant of rent. The liability to pay interest under the proviso and to pay costs of the ejectment application depends upon the aforesaid factor. If the tenant wants to pay rent, but the landlord is not accepting the same and every time files ejectment application on the ground of non-payment of rent, in that situation, the tenant is not liable to pay interest on the arrears of rent, because he was not at fault. In the light of the aforesaid discussion, I am of the opinion that the petitioner-tenant was not liable to pay any interest or costs of the ejectment application, as I have already found that he had already paid the rent in excess.
27. Even if the instant case is examined from a different angle, even then the impugned orders passed by the Courts below cannot be sustained. It has been recently held by the Apex Court in Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors., (2002-2)131 P.L.R. 370 that it is obligatory on the Rent Controller to make a provisional order under proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act. 1949 (which is pari materia to Section 13(2)(i) of the Rent Act) by making an assessment of arrears of rent, interest on such arrears and costs of application, which the tenant is required to pay or tender on the first date of hearing. The Rent Controller is required to make such provisional order of assessment on or before the first date of hearing on the basis of material available before him. The first date of hearing would naturally be prior to the framing of issues. In the instant case, when in the written statement the petitioner-tenant specifically pleaded that he had already paid the rent to the respondent-landlrod and no amount of rent is due towards him, the learned Rent Controller should have provisionally assessed the arrears of rent to be paid by the petitioner-tenant. If it is found that the rent has already been paid, then the question of determining interest and costs does not arise. In the instant case, the learned Rent Controller did not pass any interim or provisional order making assessment of the arrears of rent, interest and costs of the application. Therefore, the petitioner-tenant cannot be held liable for ejectment on the ground that interest and costs were not paid by the petitioner-tenant on the first date of hearing.
28. In view of the aforesaid discussion, the. order dated 12.1.1982 passed by the Rent Controller and the order dated 31.10.1983 passed by the Rent Controller and the order dated 31.10.1983 passed by the Appellate Authority are hereby set aside and the ejectment application filed by the respondent-landlord for ejectment of the petitioner- tenant on the ground of non-payment of rent is hereby dismissed.
29. No order as to costs.