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 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 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. 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.

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,1949[1]  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 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.

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  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  application[2]

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.

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.

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 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 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 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….”

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 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  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 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  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 :

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”.

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.

Of necessity, “the date of first hearing of the application” would mean  the

date falling after the date of such order by the Controller.

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.

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.

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  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

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

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 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  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  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 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 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  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  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 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     |Dated      |Bank       |Reason for |

|           |           |(Rs.)      |           |           |dishonour  |

|1          |055192     |19,000/-   |7.11.2005  |Bank of    |Insufficien|

|           |           |           |           |Punjab     |t          |

|           |           |           |           |           |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    |-do-       |

|           |           |           |           |Punjab/    |           |

|           |           |           |           |Centurion  |           |

|           |           |           |           |Bank       |           |

|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    |Dated     |Bank         |Reason for |

|          |          |(Rs.)     |          |             |dishonour  |

|1         |069449    |7,000/-   |7.3.2008  |Bank of      |Insufficien|

|          |          |          |          |Punjab/HDFC  |t Funds    |

|          |          |          |          |Bank         |           |

|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 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

7th 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 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 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

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

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)

———————–

[1]

[2] the Act

[3]

[4]RA 1948 of 2008

[5]   [6] (1999) 5 SCC 590

[7]   [8] (2012) 12 SCC 554

[9]   [10] (2002)5 SCC 440

[11]  [12] (2003) 11 SCC 397

[13]  [14] (2011)11 SCC 672

———————–

|REPORTABLE     |

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