JUDGMENT
V.S. Aggarwal, J.
1. The present revision petition has been filed by Amrik Singh (hereinafter described as ‘the petitioner’) directed against the order of the learned Rent Controller, Tarn Taran dated 3.10.1988 and of the Appellate Authority, Amritsar dated 10.9.1990. The learned Rent Controller has passed an order of eviction against the petitioner which was upheld by the Appellate Authority.
2. The relevant facts are that respondents-landlord filed a petition for eviction against the petitioner asserting that the petitioner is a tenant in the suit premises at a monthly rent of Rs. 100/-. He has neither tendered nor paid the rent from 18.8.1983 to 18.8.1986. Besides that it was asserted that petitioner has made unauthorised additions and alterations in the premises without the consent in writing of the landlords. The petitioner admitted the relationship of landlord and tenant but has raised the plea that agreed rent is Rs. 15/- P.M. It was denied that the petitioner has made unauthorised additions and alterations in the premises. The learned Rent Controller had framed the issues and concluded that agreed rent is Rs. 15/- P.M. as alleged by the petitioner. However, the Controller held that petitioner has not tendered the rent in Court and thus was liable to be evicted. Aggrieved by the same, an appeal was preferred. The learned Appellate Authority held that there is no dispute about agreed rate of rent being Rs. 15/- P.M. It was further held that first date of hearing was when the matter had been adjourned to 22.7.1987. However, the Appellate Authority concluded that though the rent on that date was deposited after the respondents had left but costs had not been assessed. It was the duty of the petitioner to deposit the same and consequently on the first date of hearing when costs was not paid, the petitioner was liable to be evicted. Accordingly, the appeal was dismissed. Aggrieved by the same, the present revision petition had been preferred.
3. When the revision petition was listed for hearing, none appeared on behalf of the petitioner. In these circumstances, this Court did not have the advantage of hearing the petitioner’s learned counsel.
4. The first and foremost question that comes up for consideration is as to what is the first date of hearing contemplated.
5. The ground of eviction pertaining to the alleged non payment of rent is envisaged under Sub-section 2(i) of Section 13 of the East Punjab Urban Rent Restriction Act, 1949, it reads:-
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 application for ejectment after due service pays or tenders the 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. It is patent and abundantly clear beyond any pale of controversy that in accordance with the proviso to Sub-section 2(i) of Section 13 of the Act, on the first date of hearing of the application after due service, the tenant has to tender the arrears of rent and interest calculated at six per cent per annum alongwith costs to be assessed by the Controller. In case he does so, no order of eviction is liable to be passed.
6. This Court in the case of Sunder Lal and Anr. v. Mst. Dulari and Ors., 1979(1) Rent Law Reporter 370 was concerned as to what would be the first date of hearing. It was held that when a date is fixed of hearing after completion of service, it would be the first date of hearing. The matter as such had been considered by the Supreme Court in the case of Sham Lal (Dead) by L.Rs. v. Atma Nand Jain Sabha (Regd.) Dal Bazar, 1987(1) Rent Law Retorter 24. The Supreme Court held that first date of hearing does not mean the date for return of the summons but will be that date on which the Court applies its mind to the case which ordinarily would be at the time when either issues are determined or evidence taken. The precise findings recorded by the Supreme Court are:-
“It appears that there is consensus in regard to the interpretation of the expression ‘first day’ in the context of the rent legislations of several other States, for instance, the Gujarat High Court in Shah Ambalal Chhotalal and Ors. v. Shah Balal Das Dhyabhai and Ors. (3) dealing with the indentical question as to the meaning of the words “the first day of the hearing of the suit” as provided in Sub-section 3(b) of the Section 12 of Bombay Rents, Hotel and Lodging House Rates (Control) act, 1947 has observed after considering several decisions that “the words ‘the first day of hearing’ as meaning not the day for the return of the summons or the returnable day, but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken.”
Same was the view expressed by the Supreme Court in the case of Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, (1994-2)107 P.L.R. 75 (S.C.). This was a decision rendered under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The expression ‘first date of hearing’ came up for consideration. Without being exhaustive the Supreme Court said:
“The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression first hearing for the purposes of Section 20(4) mean something different? The step or proceedings mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the Court for it is, after all, a “hearing that is the subject-matter of the definition unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression first date for any step or proceeding” to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the Court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the Court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary.”
7. Keeping in view the aforesaid, though no hard and fast rule can be prescribed but it is obvious that first date of hearing is when the Court applies its mind and not merely when summons have been returned. In the present case in hand, earlier the petitioner had appeared before the Rent Controller on 2.6.1987. On that date only copy of the application was supplied and it was adjourned to 22.7.1987 for filing of the written statement. It is obvious from the above statement of facts that on 2.8.1987 when even the copy of the application has not been supplied, it could not be taken to be the first date of hearing, particularly when the petitioner was not aware of the contents of the application. It was, therefore, rightly held that first date of hearing in the petition would be 22.7.1987.
8. The only other question which led to the affirming of the order passed by the learned Rent Controller and dealt with by the learned Appellate Authority was pertaining to the controversy that the petitioner had not deposited the costs. It is clear that on the first date of hearing in the later part of the day, the petitioner had filed an application and deposited the rent with calculated interest. There is nothing to show that costs were assessed by the Rent Controller or that the same had been deposited.
9. The learned Appellate Authority had relied on the decision of a learned Single Judge of this Court in the case of Gulshan Rai and Ors. v. Devi Dayal, (1966)68 Punjab Law Reporter 668. It was held that it is the duty of the Controller to assess the costs. But thereafter, the following observations had been made:-
“No doubt, if the Controller has assessed the costs and the same are not paid, the consequence must follow as in Section 13(2)(i) of East Punjab Act 3 of 1949. So, where the Rent Controller merely makes an omission to assess costs but the tenant does not invite him to do so, so that he may be able to comply with the proviso to that provision, the case is entirely different and the tenant cannot have benefit of disobedience in the one case and his failure to invite the Controller to do his duty in the other.”
It becomes necessary to go into further controversy because the Division Bench of this Court in the case of Mangat Rai v. Ved Parkash, (1969)71 Punjab Law Reporter 472 was also confronted with the same situation. It was held:-
“It is wrong to say that Section 13(2)(i) Proviso casts only a unilateral duty on the tenant, without there being any corresponding duty and discretion vesting in the Court in connection therewith. There are reciprocal obligations created by the Proviso. So far as the calculation of arrears of rent and interest is concerned, that is the sole responsibility of the tenant. But so far as the assessment of the costs is concerned, the Proviso assigns that function to the Controller.”
The findings are clear of the larger Bench that a duty is cast on the Rent Controller to assess the costs. This is also obvious from the plain language of the relevant provision reproduced above namely that on the first date of hearing the tenant has to tender the arrears of rent and interest at six per cent per annum. But so far as costs are concerned, they have to be assessed by the Controller. If no costs were assessed by the Controller, the tenant cannot deposit any unspecified amount. Admittedly, in the present case, no costs were deposited. But the duty is of the Rent Controller to assess the costs. If the Rent Controller has failed to discharge the duty, the blame cannot be put on the petitioner-tenant on that ground, therefore, it cannot be held that in the peculiar facts, the petitioner was liable to be evicted.
10. For these reasons, the revision petition is accepted and the impugned orders are set aside. Instead the petition for eviction is dismissed.