ORDER
S.S. Sudhalkar, J.
1. Predecessor of the respondents had filed a rent petition for eviction of the tenant- petitioner on two grounds i.e. (i) non-payment of rent (ii) impairing the value and utility of the demised premises. The rent petition was dismissed. However, the appellate authority allowed the appeal and the petition for eviction on the ground of nonpayment of rent and hence this Civil Revision was filed against that order.
2. The facts regarding the non-payment of rent are that the rent was claimed at the rate of Rs. 100/-per month (however, there are findings of both the courts below that the rent was Rs. 50/- per month). The petition for eviction was instituted on 16-8-1977 and the tenant petitioner was summoned for 6-3-1978. On that date the arrears of rent were assessed at the rate of Rs. 100/- per month totalling Rs. 400/- and after adding an interest of Rs. 21.34 and costs of Rs. 20.66 a total sum of Rs. 442/-was worked out and assessed. The case was adjourned to 20-3-1978. On that date the Presiding Officer was on leave and the Reader wrote a zimni order that a total sum of Rs. 442/- was tendered by the tenant under protest but the landlord declined to accept it and the case was adjourned to 4-4-1978. On 4-4-1978 the Presiding Officer was against on leave and the case was adjourned to 24-4-1978. Thereafter the case was adjourned to 22-5-1978 for filing the written statement. In the meanwhile, the tenant-petitioner deposited Rs. 442/- in the 67 treasury at Jagadhri on 28-3-1978. These are the
facts and the whole case is to be decided on these facts.
3. The relevant provision is in Section 13(2)(1) of the Haryana Urban (Control of Rent and Eviction) Act (hereinafter referred to as “the Act”). The same is as under :–
“13(2)(1) — 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 or 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 last 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 per annum on such arrears together with such costs of the application if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid;
Therefore, the tender has to be made within a period of 15 days of the first hearing of the application.
4. I have heara learned counsel for the parties.
5. Learned counsel for the petitioner argued that the tender was made by the tenant within the stipulated period if counted from 6-3-1978 and as the Presiding Officer was on leave and the matter was adjourned to a longer date the tenant deposited the amount in the treasury. As against this it was argued from the side of the respondents that the valid tender was not made and that if any tender was made before the Reader, it was not a valid tender.
6. Learned counsel for the petitioner has cited before me the case of Sham Lal v. Atma Nand Jain Sabha, AIR 1987 SC 197. It was held therein by the Supreme Court that the day mentioned in the summons cannot be treated to be the day of first hearing of the ejectment application but it is the day for appearance of the defendant as on that day the Court does not take up the hearing or apply its mind to the hearing of the application. It has further been held that it was only after written statement was filed, the issues are framed and hearing commences. The Supreme Court has considered various judgments including the case of Shah Ambalal Chhotalal v. Shah Babaldas Dayabhai, AIR 1964 Guj 9.
7. Learned counsel for the respondents has cited the case of Madan Mohan v. Krishan Kumar Sood, 1993 (1) Ren CR 290 : (1993 AIR SCW 743). It has relied on the case of Krishan Kumar v. Gurbax Singh (1977) 2 Ren CR 62 : (AIR 1977 NOC 276) (HP). A passage from the said judgment quoted in the case of Madan Mohan v. Krishan Kumar Sood (1993 AIR SCW 743 at p. 751) (supra) is as under :
“It is apparent that the statute itself provides a period of 30 days from the date of the order for payment of rental arrears by the tenant. On such payment, the statute declares, effect will not be given to the order of eviction. The statute does not leave the determination of the period to the Rent Controller. It is not open to the Rent Controller, when disposing of the petition for eviction, to make an order either abridging or enlarging the period of 30 days. Indeed, the period having been determined by the statute itself, no order was necessary by the Rent Controller. There being no power in the Rent Controller to vary the period mentioned in the statute, it is apparent that the order made by him in the execution proceedings is a nullity. The Appellate Authority is right in the view taken by it.”
Their Lordships have observed that they are in complete agreement with the view taken in the case of Krishan Kumar v. Gurbax Singh (AIR 1977 NOC 276) (supra).
8. There is a further clause in the statute which was under consideration before the Supreme Court in that case. This is one of the proviso in Section 14 of the Rent Act which is applicable to Himachal Pradesh. It is as under :–
“Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non-payment of rent due from him, shall not be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order; or
(ii) …………;
or
(iii) ………….;
or
(iv) ………….;
or
(v) …………..;
or
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.
This provision is not in the Act applicable to Haryana. Therefore, I may not go to discuss this citation further.
9. Learned counsel for the respondents has cited the case of Ashwani Kumar Gupta v. Siri Pal Jain, 1998 (2) Ren CR 222. It was a case of specified landlord and the tenant did not file affidavit seeking leave to contest within 15 days of service of summons. It was held therein that the Rent Controller could not condone delay or extend time. The question involved in that judgment is totally different from the case in hand and hence the said judgment is not applicable to the facts of the present case.
10. Learned counsel for the respondents also cited the case of Krishan Kumar v. Gurbax Singh (1977) 2 Ren CR 62 : (AIR 1977 NOC 276). A reference of this case is also made while discussing the case of Madan Mohan v. Krishan Kumar Sood (1993 AIR SCW 743) (supra).
11. So far as the case of Sham Lal v. Atma Nand Jain (AIR 1987 SC 197) (supra) is concerned it may be mentioned that it is also not necessary to go further in the discussion of that case. It can be seen that there is some difference between the Act and Rent Act as applicable to Punjab which was under consideration of the Supreme Court in the case of Sham Lal (supra). According to the Punjab Rent Act, the tenant is protected, if he on the first hearing of the application 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 costs of application assessed by the Controller.
12. In the present Act, 15 days time from the date of first hearing of the application for ejectment is prescribed. On 6-3-1978, the Rent Controller had calculated the amount and the case was adjourned for tender and reply to 20-3-1978. Therefore, the Rent Controller had applied his mind on 6-3-1978. Therefore, the only question to be seen is whether there was a valid tender within 15 days from the date of first hearing or not. Date 20-3-1978 which was given by the Rent Controller was within 15 days. The petitioner states that he had made the tender but it was not accepted. Same is also mentioned by the Reader of the Court. It is no fault of the petitioner that the Presiding Officer was not available on that date. It is unfortunate that in the absence of Presiding Officer, no arrangement of charge was made to deal with the urgent cases. The Appellate Authority has observed that legal tender could not be made before an official of the Court and it could be valid only if Presiding Officer was there. With respect to the Appellate Authority, it can be said that the view taken by it is not correct. The above-quoted proviso to Section 13(2)(i) of the Act provides for paying or tendering of rent along with costs and interest. It does not mention that it has to be paid or tendered in the Court and when this is the position, when there is evidence of tender of the rent, though in the Court, but in the absence of the Presiding Officer, it was valid tender and, therefore, the petitioner was entitled to the protection of Rent Act. The subsequent deposit on 28-3-1978 in the treasury may be ignored because it is not necessary to go into that question.
13. In view of the above position, I cannot uphold the judgment of the Appellate Authority. As a result this revision petition deserves to be allowed .
14. This revision petition is, therefore, allowed and the judgment of the Appellate Authority is set aside and the rent petition is dismissed with no order as to costs.
