JUDGMENT
G.C. Garg, J.
1. This revision is directed against the orders of the authorities below in proceedings under Section 13 of the Haryana Urban (Control of Rent and Eviction), Act, 1973 (for short ‘the Act’).
2. Petitioner filed a petition under Section 13 of the Act seeking ejectment of the respondent on the ground of non-payment of arrears of rent. Rate of rent was alleged to be Rs. 75/- per month. The tenant filed written statement disputing the rate of rent. It was pleaded that the rate of rent was Rs. 35/- per month. However, in order to avoid ejectment, he tendered rent at the rate of Rs. 75/- per month for the period January 1, 1985 to March 31, 1985, which was accepted by the petitioner-landlord. Issues were framed in the petition on August 22, 1985 and one of the issues framed was “what is the rate of Rent.” The landlord continued appearing in the proceedings till October 11, 1986 when exparte proceedings were ordered against him. The tenant then produced some evidence and the learned Rent Controller by his order dated March 11, 1987 recorded a finding that rate of rent was Rs. 35/- per month and not Rs. 75/-. The landlord filed appeal which was dismissed by the appellate authority by order dated October 22, 1988. Aggrieved by the said orders, the landlord has filed the present revision.
3. After hearing learned counsel for the petitioner, I am of the opinion that this revision has no merit. The landlord claimed rent at the rate of Rs. 75/- per month whereas the tenant alleged it to be Rs. 35/- per month. The contention of the learned counsel for the petitioner is that once the landlord was proceeded exparte by order dated October 11, 1986, the only course open to the Rent Controller was to dismiss the ejectment petition in default and not to proceed with it any further what to talk of determining the rate of rent. The only course according to the learned counsel open to the tenant was to file a suit for the recovery of the amount paid in excess of the rent due, if any. This course was undoubtedly available to the tenant in the event of the ejectment petition being dismissed in default. However, I am of the opinion that the learned Rent Controller was within his jurisdiction to continue the proceedings and determine the rate of rent once an issue had been framed about the rate of rent even if the landlord had absented and had been proceeded exparte. It has been held in Sham Lal v. Shri Parkash Chand and Anr., (1985-2)88 P.L.R. 585 that a tenant can under protest make payment or tender the arrears of rent at the rate as claimed by the landlord in the ejectment petition and if the rate is found subsequently to be less, he can hope for adjustment of the excess payment. It was further held that this was only possible if rate of rent was determined by the learned Rent Controller on the evidence led by the parties. Otherwise also, if arrears of rent were tendered on the first date of hearing as claimed by the landlord but at the same time rate of rent was disputed by the tenant, then it becomes the duty of the Rent Controller to give a specific finding as to the rate of rent after allowing the parties to lead their evidence. This is precisely what has happened in this case. The tenant tendered rent at the rate claimed by the landlord and at the same time disputed the rate of rent by filing written statement. Issue framed as to what was the rate of rent, was answered after affording an opportunity of leading evidence in that behalf. The landlord obviously did not lead any evidence as he was proceeded exparte. The tenant did lead some evidence and the learned Rent Controller after discussing the same came to the conclusion that rate of rent was Rs. 35/- and not Rs. 75/- per month.
4. For what has been observed in Sham Lal’s case (Supra) this revision fails and is dismissed, leaving the parties to bear their own costs.