ORDER
V.S. Aggarwal, J.
1. By this common judgment both the Revision petitions namely Civil Revision No.898 of 1997 can conveniently be disposed of together.the parties are identical and both the petitions pertain to the same premises.The orders of eviction were passed against the petitioner which were upheld by the Appellate Authority.Hence, the present revision petition.
2. The respondent-landlord had firstly filed a petition, for eviction asserting that rent is Rs.125/-p.m. The petitioner-tenant is liable to pay the rent and the house tax from 27.11.1985. The was filed on 1.8.1988.The other grounds of eviction had been taken but do not survive for purposes of the present revision petition.The petitioner appeared and tendered Rs.4,375/- as arrears of rent from 27.11.1985 to 27.10.1988, Rs.133.28 as house tax had been tendered under protest.The respondent accepted the said amount through his counsel.In the written statement filed the petitioner had denied that he was in arrears of rent or was liable to pay the house tax.
3. Another petition for eviction was filed by the respondent 9.3.1990.At the same rate of rent and house tax, the arrears was claimed from 28.10.1988.The petitioner appeared and on 10.4.1990 tendered an amount of Rs.2,250/- as arrears of rent from, 28.10.1988 to 28.4.1990 at the rate of Rs. 125/-P.M., Rs. 50/- were tendered as costs and Rs. 142.50 as inviability to pay the same was denied.
4. The learned Rent Controller had held that petitioner was liable to pay the house tax.Since in the first petition for eviction referred to above, the house tax had been tendered, the same was dismissed.But in the second petition, the house tax had not been tendered.An order of eviction on the ground of non-payment of rent was passed. An appeal was preferred and the Appellate Authority agreed with the findings of the learned Rent Controller. It was held that there was deficient tender of rent on the first date of hearing in the subsequent petition for eviction fled on 1990.The petitioner was liable to pay the house tax and, therefore, the order of eviction on that count was maintained.
5. The respondent had preferred another petition for eviction with respect to the same premises alleging that the arrears of rent are due at the same rate of rent and the petition was filed on 29.2.1993. The petitioner made a statement on 10.5.1993.Another amount of Rs. 3,500/- had been deposited as arrears from 28.10.1988 to 28.4.1990. Another amount of Rs. 3,500/- has been deposited as arrears from, 28.5.1990 to 28.6.1992 under Section 6-A of the Haryana Urban(Control of Rent and Eviction) Act, 1973. The petitioner tendered an amount of Rs. 1,816/- as arrears of rent for 13 months from 28.5.1992 to 29.5.1993 plus interest and costs.He denied the liability to pay the house tax. The learned Rent Controller held that rent tendered was deficient .The house tax had not been tendered and in any case rent was not even tendered for one month namely 29.4.1990 to 28.5.1990.An order of eviction was passed which was upheld in appeal.
6. The first and foremost question that com,es up for consideration is as to whether the petitioner was liable to pay the house tax or not? The argument advanced was that the house tax could only be charged if after the commencement of the tenancy and fresh tax had been levied.In this connection reliance was placed on Section 8 of the Haryana Urban (control of Rent and Eviction)Act, 1973. There is no dispute herein that notice as such had been served.
7. Some of the admitted facts can well be mentioned.Admittedly there was a rent agreement that had been executed. It had been agree that it shall be the responsibility of the petitioner to pay the house tax. It is in evidence that house tax had earlier been levied.In that process it is not something that had happened after the creation of the tenancy.The findings of the learned Rent Controller and the Appellate Authority that house tax has to be paid by the petitioner necessarily must be approved.
8. In that event it had been urged vehemently that in any case the petitioner had paid and deposited the excess amount and, therefore, adjustment in this regard should be given for the deficiency, if any.Reliance in this regard had been placed on the decision of this Court in the case of Sukhwinder Singh v.Ashok Kumar, 1997(2) RCR (Rent) 410 (P&H) (DB):1997(3)Punjab Law Reporter 114(Pb.& Hrv.).The argument that if the amount is paid for a particular period, it cannot be adjusted in the arrears, had been repelled. The Division Bench of this Court held:-
“In Pritam Singh v.Smt. Sibo, 1980(2)RCR 144 (P&H):1980(82) P.L.R. 577 the tenant on the first date of hearing did not tender rent for december, 1975 which was due from him, but tendered rent for January, 1976, which was not due.On these facts, it was held that tenant is not liable to ejectment and landlord is under obligation to adjust such rent for December, 1975. Thus, approving the view expressed in Bansi Lal’s case (supra) and the law laid down in Pritam Singh’s case (supra)the judgment delivered in Darpoati Devi’s case (supra) is hereby overruled.Reference is answered thus:-
The arrears of rent is debt in common parlance, but payment of interest on rental arrears flows from tenant’s liability to pay rental arrears thus, they constitute only one debt and not two distinct debts.Therefore, provisions of Section 59 of the Contract act are not attracted in such cases and further on the count that the payment of interest on rental arrears under Section 13(2)(i) proviso is not based on contractual liability,as it flows from the provisions of this statue. If the tenant tenders rental arrears, interest and costs with a direction for appropriation and it the amount deposited under a particular head falls short, while the amount deposited under a particular head is in excess, the tenant is entitled to claim adjustment of such excess amount towards such short deposit and on this count, he is not liable to ejectment.”
9. The position herein is that in the first petition filed, the rent was tendered from 27.11.1985 to 27.10.1988 with house tax. In the subsequent petition, the rent from 28.10.1988 to 18.4.1990 had been tendered but no house tax was paid. In the third petition which has filed on 29.3.1993, it has bee pointed that rent from 28.5.1993 had been paid in Court but not the house tax. In this process for one month there was no tender of rent, besides that the house tax had not been paid for a period of 5 years. It is Rs.43.70 paise per year.But what comes to the rescue of the petitioner is that the rent that was tendered in the second petition that was filed on 9.3.1990 onwards. The tender so made was in excess.This is obvious from the plain language of Section 13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 19973 which reads as under:-
“13(2)(i). A landlord who seeks to evict his tenant shall apply to the Controller for direction in that behalf.If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied:
(i) that the tenant has not paid for tendered the rent due from 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 day of the month next following that for which the rent is payable:
Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the Controller, at eight per cent annum on such arrears together with such deemed to have duly paid or tendered the rent within the time aforesaid:
Provided further, that the landlord shall not be entitled to claim arrears of rent for appeared exceeding three years immediately preceding the date of application under the provisions of this Act.”
The said excess amount could be adjusted towards the house tax that was due.
10. Similar is the position with respect to the third petition for eviction that was filed on 29.3.1993.The rent once again was tendered upto 29.5.1993.This was in excess because the rent of 3 months had been paid in excess that time. The tender has to be made of the rent claimed in the petition and on the date when the petition was filed, when excess had been tendered, it could easily be adjust in one months’s short rent as well as towards the house tax. When the adjustment is made, it is patent and it cannot be termed that the petitioner was in default.The ratio of the decision in Sukhwinder Singh’s case(supra) comes to the rescue of the petitioner.
For these reasons, the revisions petitions are allowed and the judgments of the courts below are set aside. Instead the eviction petitions are dismissed.
11. Revisions allowed.