Punjab-Haryana High Court
Babu Ram (Dead) And Ors. vs Shri Mulkha Singh on 30 July, 1992
Equivalent citations: (1992)102PLR504
ORDER S.S. Grewal, J.
1. This revision petition is. directed against the order of the Appellate Authority, Karnal dated 16th February, 1985 whereby order of eviction dated 10th of August, 1984 passed by the Rent Controller, Karnal, against the present petitioners was affirmed.
2. In brief facts relevant for the disposal of this petition are that Mulkha Singh (hereinafter referred to as the landlord) filed application; under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) for eviction of Babu Rarn tenant (predecessor-in-interest of Maya Devi, Dr. Radha Sham, Bhole Shanker,, Lachhman Deenu and Raju sons) and Data Ram an alleged sub-tenant. It was pleaded that the premises in dispute were let out to Babu Ram on payment of monthly rent of Rs. 125/-. Eviction of the tenant was sought firstly on the ground of non-payment of rent for the period 1-5-1971 to 31-12-1971 amounting to Rs. 1,000/ ; secondly on the ground that Babu Ram had sublet the demised premises to Data Ram.
3. Arrears of rent were tendered by Data Ram on the first date of hearing. The landlord accepted the amount tendered for use and; occupation of the shop and not as a rent and further stated that his tenant was Babu Ram and he had sublet the premises to Data Ram and that tender by Data Ram was invalid. Babu Ram appeared on subsequent date and both he and Data Ram filed joint written statement. However, no rent was tendered by Babu Ram on that date.
4. On 25-5-1972, the following issues were framed by the Rent Controller :-
(1) whether the respondents are liable to be ejected on the ground of defective (invalid) tender and on the grounds alleged in the petition ? O.P.P. (2) Whether the respondent No. 2 is also a tenant of the petitioner, if so, to what effect ? O.P.R. (3) Relief.
5. At a later stage the following additional issues were also framed : -
(2-A) Whether the petitioner had accepted arrears of rent for the period 1-6-1978 to 20-6-1981 from both the respondents unconditionally, as alleged, if so to what effect ? O.P.R. (2-B) Whether the payment of rent amounts to acknowledgement of tenancy of both the respondents by the petitioner as alleged and if so, to what effect ? O.P.R.
6. The Rent Controller decided all the issues in favour of the landlord and against Babu Ram and Data Ram and ordered their eviction from the demised premises. The appellate Authority held that tender of rent by Data Ram was neither by, nor, on behalf of tenant Babu Ram and, that it would not amount to a valid tender on behalf of the tenant. The appellate Authority on the basis of the judgments of this Court held that Data Ram was working on the disputed property with Babu Ram and, therefore, order of ejectment had to be passed against both of them. The impugned order of ejectment was thus upheld by the Appellate Authority.
7. Feeling aggrieved against the order of ejectment Maya Devi. and others, legal representatives of Babu Ram and Data Ram filed the present petition.
8. The learned counsel for the parties were heard.
9. On behalf of the petitioners, it has rightly been contended that both the Courts below have erred in law in holding that the tender of arrears of rent made by Data Ram on 2-3-1972 was not a valid tender. From the perusal of the copy of the judgment of the Rent Controller, Exhibit A-2 and that of the Appellate Authority Exhibit A-l in the earlier ejectment proceedings between the same parties concerning the same premises, it was held that the possession of the premises by Babu Ram jointly with Data Ram has been well explained and both of them were working together in business though the tenancy is only in the name of Babu Ram. The later has not parted with the possession of the premises and the subletting has not been proved. These findings have become final between the parties and would operate as res judicata. Mere fact that these authorities had also given specific finding that tenancy was in the name of Babu Ram alone would not make an material difference.
10. I find support in my view from the authority of the apex Court in Smt. Pushpa Devi v. Milkhi Ram, A. I. R. 1990 S. C. 808, wherein taking into account of the intention of the legislature and the purpose for which the proviso (to sub-Section 2(i) of Section 13 of the Act) was enacted, it was held that the obligation to tender the rent under the proviso on the first hearing date does not depend upon the existence of admitted jural relationship of landlord and tenant When an action for eviction is brought by the landlord on the ground of default, the proviso stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant. The view to the contrary expressed by the High Court of Punjab and Haryana in Ram Gopal v. Ram Parkasti, (1963) 65 P. L. R. 1112 and Punjab Rnjasthan Goods Carriers v. Onkar Mal cases, (1976) 78 P.L.R. 364 is likely to be of greater mischief to the tenants than a protection for them and is therefore overruled.
11. Both the Courts below have relied upon the aforesaid authorities in Ram Gopal's and Onkar Mal's cases. The view taken by the Rent Controller and the Appellate Authority in this case thus cannot be legally sustained. Mere fact that the landlord while accepting the rent from Data Ram before the Rent Controller had stated that he was accepting the same only for use and occupation of the shop and not as rent or omission on the part of Data Ram in specifying that he was tendering arrears of rent on behalf of Babu Ram as well, would, not make any material difference as far as the facts and circum- stances of the present case are concerned.
12. For the foregoing reasons, the impugned order of eviction passed by the courts below is hereby set aside, the application for eviction is dismissed and this revision petition is accordingly allowed. However, in the peculiar facts and circumstances of the present case, both the parties shall bear their own costs throughout.