JUDGMENT
Jasbir Singh, J.
1. Respondent/landlord filed an eviction application against the petitioner/tenant under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973. In that application, eviction was sought on the ground of non-payment of rent w.e.f. 1.11.1983 to 30.10.1986 @ Rs. 400/- per month. Petitioner filed reply to that application, wherein, he denied the existence of relationship of landlord and tenant between them. It was further contended that rate of rent was not Rs. 400/- per month, as alleged, rather it was Rs. 50/- per month. It was further stated that entire rent till June, 1986 had already been paid to the landlord. Before the Rent Controller, tenant on his own Without any assessment made in that regard by the Rent Controller, tendered rent @ Rs. 50/- per month from July, 1986 to October, 1986, which was accepted by the landlord, Rent Controller, after recording evidence of both the parties, came to a conclusion that there existed a relationship of landlord and tenant between them. Ejectment of the petitioner was ordered on the ground of non-payment of rent. It was found, as a matter of fact, that the petitioner had failed to prove that he had paid rent to Shri K.C.Dhawan, alleged landlord, till June 1986. Petitioner went in appeal, which was dismissed. Hence, this revision petition.
2. As per office report, service is complete. However, nobody has put up appearance on behalf of respondent/landlord, Counsel for petitioner Mr. Giani has vehemently contended that since no assessment of interest and costs was made by the Rent Controller, after the petitioner put up appearance before that Court, his ejectment could not be ordered on the ground of short tender/non-payment of rent, he has relied upon a judgment of Hon’ble Supreme Court in Rakesh Wadhawn and Ors v. Jagdamba Industrial Corporation and Ors., (2000-2) 125 P.L.R. 370.
3. A reading of the paper book clearly indicates that no assessment was made by the Rent Controller regarding payment of arrears of rent, interest and costs, as is necessary under the provisions of proviso to Section 13(2)(i)of the Act. Petitioner/tenant tendered rent on his own for a specific period and claimed that regarding rest of the period as alleged by the landlord, he had already made payment to owner Sh. K.C.Dhawan, which ultimately he failed to prove. This court is of the opinion that the case is squarely covered by a ratio of judgment of their Lordships of the Hon’ble Supreme Court in Rakesh Wadhawan’s case (supra), wherein, under similar circumstances, in paragraph No. 30 of that judgment, it was opined asunder:-
“30. To sum up, our conclusions are:
(1) In Section 13(2) (i) proviso, the words assessed by the Controller qualify not merely the words ‘the cost of application’ but the entire preceding part of the sentence i.e. ‘the arrears of rent and interest at six percent per annum on such arrears together with the cost of application’.
(2) The proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 casts an obligation on the Controller to make an assessment of: (i) arrears of rent, (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the first date of hearing after the passing of such order of assessment by the Controller so as to satisfy the requirement of the proviso.
(3) Of necessity ‘the date of first hearing of the application’ would mean the date failing after the date of such order by Controller.
(4) On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow, If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the Controller.
(5) If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts and 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 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/falling which alone he shall be liable to be evicted. Compliance shall save him from eviction.
(6) While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularity the rent failing due month by month during the pendency of the proceedings.
The view of the law so taken by us advance the object sought to be achieved by the legislation, servers best the interest of landlord and tenant both, remove uncertainty in litigation and obscurity in drafting of the provision and also accords with the principles of justice and equity. Even if it is an innovation, it is in the field of procedural law, without affecting the substantive rights and obligations of the landlord and the tenant and such innovation is permissible on the basis of authority and supported by principles of justice, good sence and reason. We have not touched the substantive rights of landlord and tenant and are feeling satisfied with a do little in the field of procedure so as to effectuate the purpose of enactment.” 4. In this case also, Rent Controller had failed to comply with the provisions of proviso to Section 13(2)(i), appellate authority had also failed to take note of above mentioned irregularity which goes to the root of the case, as such, both the orders cannot be
sustained. Revision Petition is allowed. Orders passed by the Rent Controller and also
by the appellate authority are set aside. Case is remitted back to the Rent Controller,
who after affording an opportunity to the parties, will pass a provisional order, under
proviso to Section 13(2)(i), afford an opportunity to the tenant for making payment or
tender rent and then proceed to decide the case afresh. Rent Controller is directed to
take note of the judgment passed by their Lordships of Hon’ble Supreme Court in
Rakesh Wadhawan’s case(supra), while deciding the case and order passed by this
Court, Rent Controller will issue notice to both the parties to appear before it. No order
as to costs.