IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5129 OF 2017
[Arising out of SLP(C) No. 24952 of 2015]
DALIP KAUR BRAR ..APPELLANT
VERSUS
M/S.GURU GRANTH SAHIB SEWA MISSION
(REGD.) AND ANR. ..RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
Leave granted.
2 The Rent Controller ordered that the tenant be evicted under Section
13 of the East Punjab Urban Rent Restriction Act,1949[1] for defaulting in
the payment of rent. The Punjab and Haryana High Court set aside the order
of eviction. The correctness of the decision rendered by the learned Single
Judge on 29 April 2015 has been called into question. The appellant is the
landlord. The Respondents are her tenants.
3 On 1 June 2005 a lease was executed by the appellant by which a
residential property, bearing House No. 2535 in Sector 35-C at Chandigarh,
was let out to the respondents. The term of the lease was three years
commencing on 1 June 2005, to end on 31 October 2008. The rent agreed was
Rupees 25,000 for an initial period of one year which was to be enhanced to
Rupees 28,000 commencing from 1 June 2006 for the remainder of the term.
4 On 8 November 2006, the appellant filed an ejectment application
under Section 13 of the Act on the ground that : (i) the respondents failed
to pay the rent from 1 November 2005 to 31 May 2006 at the agreed rate of
Rupees 25,000 per month and with effect from 1 June 2006 at the rate of
Rupees 28,000 per month, and the cheques which were issued were
dishonoured; (ii) the premises have been kept locked and were not being
used for sufficient reason since December 2005.
5 The respondents contested the ground of default by claiming that they
had paid an advance of six months’ rent and hence no arrears were due.
6 The Rent Controller by an order dated 14 November 2007 made a
provisional assessment of rent and directed the respondents to deposit an
amount of Rupees 19,000 per month with effect from 1 June 2005 together
with interest at the rate of 6 per cent per annum and costs quantified at
Rupees 500. The order of the Rent Controller fixed the proceedings on 14
December 2007 for payment or tender of the rent as provisionally assessed.
7 On 14 December 2007 the respondents filed an application for review
on the ground that though the appellant had claimed rent with effect from 1
November 2005 the direction for deposit was with effect from 1 June 2005.
The fact that the respondents were in arrears appears not to have been in
dispute for even in the application for review the prayer was in the
following terms :
“…It is, therefore, respectfully prayed that the order dated 14.11.2007 may
kindly be reviewed and set aside and the Respondent, be allowed to tender
the rent from 01.03.2007 to 14.11.2007, in the interest of justice.”
The respondents failed to comply with the order of provisional assessment.
8 Since the respondents failed to comply with the order by which
provisional rent was determined together with interest and costs, the Rent
Controller passed an order of eviction on 14 December 2007. The respondents
filed an appeal against the order. On 7 January 2008 a conditional stay
was granted by the District and Sessions Judge, Chandigarh, acting as the
appellate authority, by which the order of eviction was stayed subject to
the deposit of rent within a period of one month before the Rent Controller
and the continued deposit of the monthly rent by the seventh day of every
succeeding month. The respondents failed to comply with the conditions
subject to which stay was granted. Instead, they filed on 7 February 2008
an application for modifying the order dated 7 January 2008. On 11 February
2008, the respondents filed an application for extension of time. The
appellate court by its order dated 18 February 2008 dismissed the
applications for modification and for extension of time.
9 The first round of proceedings before the High Court was then
initiated by the respondents by instituting a civil revision application[2]
in which they sought to challenge the order of eviction dated 14 December
2007, the order granting conditional stay dated 7 January 2008 and the
order of the appellate court dated 18 February 2008 dismissing the
application for modification and extension of time. A learned Single Judge
of the High Court by an order dated 31 March 2008 dismissed the civil
revision.
10 The appellant thereupon filed an application before the Rent
Controller for executing the order of eviction dated 14 December 2008. On 3
June 2008 the Rent Controller issued a warrant of possession. The appellate
court declined to stay execution on 14 June 2008. This led to a second
round of proceedings before the High Court in the form of a Civil Revision
Application (RA No. 3922 of 2008) by which the respondents challenged the
order of the Rent Controller dated 14 November 2007 making a provisional
determination of the rent, the order of eviction dated 14 December 2007 and
the order dated 14 June 2008 of the appellate authority declining to stay
the execution proceedings.
11 A learned Single Judge of the High Court dismissed the Civil Revision
on 14 June 2008 though by then, the respondents claim to have deposited an
amount of Rupees 6.50 lakhs towards the arrears of rent. The High Court
held that on 31 March 2008 it had already dismissed the civil revision
against the interim order passed by the appellate authority and hence a
fresh application was barred. Moreover, the High Court noted that a
substantive appeal against the order of eviction was pending before the
appellate authority. The appellate authority was directed to dispose of the
appeal expeditiously, by 28 February 2009.
12 A Special Leave Petition was filed before this Court against the
order of the High Court dismissing the Civil Revision. During the pendency
of the special leave petition the appellate authority dismissed the appeal
against the order of eviction on 25 February 2009. The respondents failed
to comply with the order passed by this Court for depositing the entire
arrears within two months. Eventually, the special leave petition was
dismissed on 2 April 2012 and an interim order passed by this Court earlier
was vacated.
13 Thereafter a third round of proceedings was initiated before the High
Court in the form of a Civil Revision Application (RA No. 3202 of 2009) in
which the order of eviction and the order of the appellate authority
dismissing the appeal of the respondents was questioned. The High Court by
its judgment and order dated 29 April 2015 has allowed the civil revision
and set aside the order of eviction. The High Court has principally relied
on the fact that by the provisional order of assessment the Rent Controller
had directed the respondents to deposit rent with effect from 1 June 2005
though the tenant was alleged to have been in default with effect from 1
November 2005. Since the order of provisional assessment has been held to
be flawed on this ground, the consequential order of eviction has been held
to be contrary to law. However, the proceedings have now been remanded for
consideration of the ground of non-use on which a decree for eviction has
also been sought. The judgment of the High Court is called into question
in these proceedings.
14 The first submission which has been urged on behalf of the appellant
is that the correctness of the order of eviction dated 14 December 2007 was
called into question in the first civil revision Application that was filed
before the High Court. The dismissal of the application on 31 March 2008,
it was asserted, culminated in the challenge to the order of eviction being
concluded. The order of the High Court dated 31 March 2008 has attained
finality, there being no further proceedings before this Court. Hence it
has been submitted that the challenge to the order of eviction in appeal
did not survive upon the dismissal of the Civil Revision Application on 31
March 2008. This submission was sought to be further buttressed by
adverting to the principle of issue estoppel as elaborated in the judgments
of this Court in Hope Plantations Ltd. v. Taluk Land Board, Peermade and
Anr.[3] and Narayan Dutt Tiwari v. Rohit Shekhar and Anr.[4].
15 In order to address the submission, it would be necessary to note at
the outset that following the failure of the respondents to comply with the
provisional assessment made by the Rent Controller on 14 November 2007, the
order of eviction was passed on 14 December 2007. The respondents filed an
appeal against the order of eviction and on 7 January 2008 a conditional
stay was granted subject to deposit. The respondents filed an application
for modification of the condition of deposit and for extension of time.
When both the applications were dismissed by the appellate Court they
instituted proceedings before the High Court invoking its revisional
jurisdiction. Undoubtedly, the frame of the civil revision incorporated a
challenge to the order of eviction as well as to the orders passed by the
appellate authority on 7 January 2008 (granting a conditional stay) and on
18 February 2008 (dismissing the application for modification and
extension). At that stage, the respondents having already invoked the
appellate remedy against the order of eviction, the substantive challenge
to the order of eviction could not have been the subject of a parallel
proceeding before the High Court in a civil revision. An appeal having
been preferred against the order of eviction, it would be natural to
postulate that the respondents would have to first exhaust the appellate
remedy before seeking to question the final order of eviction in revision
before the High Court. Moreover, the appeal was not withdrawn. The scope
of the challenge by the respondents before the High Court in revision was
in regard to the conditions which were imposed by the appellate authority
for staying the operation of the order of eviction. The respondents were
aggrieved by the condition of deposit and by the refusal of the appellate
authority to modify its order imposing those conditions. The revision
traversed that limited area and it would be impermissible to construe the
judgment of the High Court dated 31 March 2008 as having brought down the
curtains on the order of eviction dated 14 December 2007. The appeal filed
against the order of eviction was still pending and there is no reason to
assume that the High Court would, despite the recourse that was taken by
the tenants to the appellate remedy, interdict the exercise of jurisdiction
by the appellate authority in exercise of the statutory right of appeal
under Section 15(1)(b) of the Act.
16 There can be no dispute about the position in law. The decision in
Hope Plantations Limited (supra) formulates the principle in the following
observations :
“26.…..When the proceedings have attained finality parties are bound by the
judgment and are estopped from questioning it. They cannot litigate again
on the same cause of action nor can they litigate any issue which was
necessary for decision in the earlier litigation. These two aspects are
“cause of action estoppel” and “issue estoppel”. These two terms are of
common law origin. Again, once an issue has been finally determined,
parties cannot subsequently in the same suit advance arguments or adduce
further evidence directed to showing that the issue was wrongly determined.
Their only remedy is to approach the higher forum if available. The
determination of the issue between the parties gives rise to, as noted
above, an issue estoppel….”
In the subsequent judgment of a Bench of two learned Judges in Narayan Dutt
Tiwari (supra), it has been held that principles of res judicata and
constructive res judicata apply also to successive stages of the same
proceedings. However, in the present case this principle would not stand
attracted for the simple reason that the legality of the order of eviction
was the subject matter of a statutory appeal under Section 15(1)(b) before
the appellate authority. Properly construed, the scope of the revision
application before the High Court, during the pendency of the appeal,
related to the conditions which were imposed by the appellate authority for
staying the order of eviction. The decision of the High Court dated 31
March 2008 would hence have to be construed as a view taken upon the
legality of the conditions imposed by the appellate authority for staying
the order of eviction and not in regard to the legality of the order of
eviction which was pending consideration in the appeal. We therefore do
not find merit in the first submission which has been urged on behalf of
the appellant.
17 The next aspect of the matter arises from the provisions of
Section 13. Insofar as it is material, Section 13 provides as follows :
“13. Eviction of tenants.- (1) A tenant in possession of a building or
rented land shall not be evicted therefrom in execution of a decree passed
before or after the commencement of this Act or otherwise and whether
before or after the termination of tenancy, except in accordance with the
provisions of this section, or in pursuance of an order made under Section
13 of the East Punjab Urban Rent Restriction Act, 1949, as subsequently
amended.
(2) A landlord who seeks to evict his tenant shall apply to the Controller
for a direction in that behalf. If the Controller, after giving the tenant
a reasonable opportunity of showing cause against the applicant, is
satisfied –
(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 applications 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 cost
of application assessed by the Controller, the tenant shall be deemed to
have duly paid or tendered the rent within the time aforesaid.
*** *** ***
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:
Provided that the Controller may give the tenant a reasonable time for
putting the landlord in possession of the building or rented land and may
extend such time so as not to exceed three months in the aggregate.”
18 Sub-section (1) of Section 13 contains a bar to the eviction of a
tenant who is in possession of a building or rented land except in
accordance with the provisions of the Section or in pursuance of an order
passed under Section 13 of the East Punjab Urban Rent Restriction Act
1949. A landlord who seeks the eviction of his tenant must under sub-
section (2) apply to the Rent Controller. Clause (i) of sub-section (2)
empowers the Rent Controller to pass an order of eviction (directing the
tenant to put the landlord in possession) if the tenant has not paid or
tendered the rent due by him within 15 days of the expiry of the time fixed
in the agreement of tenancy or, where there is no agreement, by the last
day of the month following the month for which the rent is payable. The
proviso to clause (i) of sub-section (2) is in the nature of a concession
by which the legislature has introduced a deeming fiction. The deeming
fiction arises where the tenant at the first hearing of the application for
ejectment pays or tenders the arrears of rent together with interest at six
per cent per annum and the costs of the application assessed by the Rent
Controller. If this condition is fulfilled, the deeming fiction that comes
into being is that the tenant shall be deemed to have duly paid or tendered
the rent “within the time aforesaid”. The expression “within the time
aforesaid” obviously is in reference to the time for payment of rent which
is stipulated in the substantive part of clause (i) of sub-section (2)
immediately before the commencement of the proviso.
19 Hence the position is that the tenant must pay or tender the rent
within 15 days of the expiry of the time fixed in the agreement of tenancy
or in the absence thereof “by the last date of the month next following
that for which the rent is payable”. If the tenant fails to do so, the
Rent Controller upon being moved by the landlord is empowered to order the
eviction of the tenant. This consequence is however obviated upon
compliance with the terms of the proviso. Before a tenant can claim the
benefit of the proviso, it is necessary that its terms must be observed.
Where the tenant upon an assessment being made by the Rent Controller has
on the first hearing of the application for eviction paid or tendered the
arrears of rent together with interest and costs as assessed by the
Controller, by a deeming fiction of law, the tenant would be treated to
have duly paid or tendered the rent within the period as stipulated in the
statutory provision. In order to seek the benefit of the proviso, there
has to be first an assessment by the controller; second, the payment or
tendering of the rent, interest and costs by the tenant in terms of the
order of the Rent Controller and third, such payment or tender must be on
the first hearing of the application for ejectment. But for the proviso, a
tenant in default would be liable to suffer an order of eviction for
default in paying rent. The proviso makes a concession but conditions the
benefit of the concession granted to the tenant subject to compliance with
its conditions. If the tenant complies with the conditions, the deeming
fiction comes into existence. If the tenant fails to fulfil the
conditions, the Rent Controller will be empowered to order eviction. To
protect himself against suffering the consequence of eviction, the tenant
has no option but to tender or pay the rent, interest and costs assessed by
the Rent Controller on the first hearing of the application for ejectment.
If he fails to do so, the tenant will not have the benefit of the deeming
fiction by which the consequence of a default in payment is obviated.
20 In Rakesh Wadhawan and Ors.v. Jagdamba Industrial Corporation and
Ors.[5], a Bench of two learned Judges of this Court construed the
provisions of Section 13(2)(i). Its conclusions were summarised thus :
“To sum up, our conclusions are :
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 per cent
per annum on such arrears together with the cost of application”.
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.
Of necessity, “the date of first hearing of the application” would mean the
date falling after the date of such order by the Controller.
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.
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 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 the 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, failing which alone he shall be liable to be evicted.
Compliance shall save him from eviction.
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 falling due month by month
during the pendency of the proceedings”.
21 The decision in Wadhawan (Supra) lays down that under the proviso to
clause (i) of sub-section (2) of Section 13 the Rent Controller is obliged
to assess the arrears of rent, interest and costs of a litigation which the
tenant must pay on the first date of hearing. If there is a dispute raised
about the quantum of the arrears of rent or about the rate of rent the
Controller will initially make a provisional assessment. The provisional
assessment is based on a prima facie view formed by the Controller on the
basis of the pleadings or such other material as may be available. Such
amount as determined by the Controller must be paid by the tenant on the
first date of hearing after the date of the provisional order passed by the
Controller. The date of first hearing is the date on which the Controller
applies his mind to the facts involved in the case. Once the Rent
Controller has made a provisional assessment of the rent, interest and
costs, the tenant is required to pay or tender the amount provisionally
assessed on the first date of hearing of the application for ejectment.
The provisional adjudication is subject to a subsequent final adjudication
by the Rent Controller. The final adjudication by the Rent Controller may
hold that the quantum of arrears as determined is (i) the same as that
which was found due under the provisional order; (ii) less than what was
determined by the provisional order; or (iii) more than what was held to be
due and payable under the provisional order. In the first eventuality, the
Rent Controller would proceed to terminate the proceedings. In the second
eventuality, the Rent Controller may direct that the amount deposited in
excess be refunded to the tenant (or adjusted against future payments due).
In the third eventuality, the Rent Controller may pass a conditional order
affording the tenant an opportunity of reasonable time for depositing the
amount (in deficit) failing which the tenant would be liable to be evicted.
In passing such an order the Rent Controller furnishes an opportunity to
the tenant to make good the deficit in terms of the final order of
assessment. The deposit by the tenant in terms of the final order of
assessment, within the period fixed by the Rent Controller would protect
the tenant from the consequence of an order of ejectment.
22 The judgment in Wadhawan (supra) was reaffirmed subsequently by a
Bench of three learned Judges of this Court in Vinod Kumar v. Premlata[6].
23 In a subsequent decision of a Bench of two learned Judges in Harjit
Singh Uppal v. Anup Bansal[7] , this Court considered the impact of the
statutory right of appeal which is available to the tenant under Section
15(1)(b). Section 15(1)(b) is in the following terms :
“15. Vesting of appellate authority on officers by State Government.-
(1)(a)
(b) Any person aggrieved by an order passed by the Controller may, within
fifteen days from the date of such order or such longer period as the
appellate authority may allow for reasons to be recorded in writing, prefer
an appeal in writing to the appellate authority having jurisdiction. In
computing the period of fifteen days the time taken to obtain a certified
copy of the order appealed against shall be excluded."
In that case, the landlord who was the respondent before this Court had
sued the tenant for eviction on the ground of a default in the payment of
rent. The Rent Controller made a provisional determination of the arrears
of rent together with interest and costs which was directed to be deposited
by a stipulated date. The tenant made an application for recalling the
order on the ground that the payment which he had made to the landlord had
not been considered. The Rent Controller rejected the application and, upon
the failure of the tenant to comply with the order of provisional
assessment, an order of eviction was passed. The tenant preferred an appeal
under Section 15(1)(b). The appellate authority held that the order of
provisional assessment was liable to be set aside. An order of remand was
passed by the appellate authority directing the Rent Controller to
determine the provisional assessment afresh. In a revision by the landlord
before the High Court, a learned single Judge held that since the tenant
had not availed of the remedy to challenge the order fixing provisional
rent during the period between the date of the order and the date fixed for
payment, the Rent Controller had no choice but to order eviction.
Accordingly, the High Court while allowing the revision petition set aside
the order of the appellate authority and restored the order of eviction
passed by the Rent Controller. This Court held in appeal that while the
determination of provisional rent by the Rent Controller is foundational to
an order of eviction, where the tenant has failed to comply with the order
of provisional assessment, nevertheless such an order is interlocutory in
the sense it does not determine the principal matter finally. In the view
of this Court, though the tenant may not have challenged a provisional
order of assessment at the interlocutory stage, there is no impediment to
lay a challenge to the provisional assessment in an appeal against the
final order :
“24. We find no impediment for an aggrieved person, on reading Section
15(1) (b) of the 1949 Rent Act, that an interlocutory order which had not
been appealed though an appeal lay, could not be challenged in an appeal
from the final order. In our opinion, Section 15(1) (b) does not make it
imperative upon the person aggrieved to appeal from an interlocutory order
and, if he does not do so, his right gets forfeited when he challenges the
final order.
25. It is true that an order of eviction follows as a matter of course if
there is non-compliance with the order determining the provisional rent but
when tenant challenges the order of eviction and therein also challenges
the order of fixation of provisional rent – the order of eviction, in its
nature, being dependant on the correctness of the order fixing the
provisional rent and there being no indication to the contrary in Section
15(1) (b) – it must be open to the appellate authority to go into the
correctness of such provisional order when put in issue.”
24 The position that emerges in law is that once the Rent Controller has
made a provisional assessment of the arrears of rent, interest and costs,
the tenant must deposit the amount so determined on the first hearing of
the application for ejectment. A tenant who does so would be deemed to
have duly paid or tendered the rent within the time prescribed by the
substantive provision of Section 13(2)(i). A tenant failing to comply with
the terms of an order of provisional assessment, cannot thereafter avail of
the concession extended to a tenant, through the proviso under Section
13(2)(i), and will be liable to suffer an order of eviction. However,
having suffered the order of eviction, the tenant is entitled to the
statutory remedy of an appeal under Section 15(1)(b). The determination of
a provisional assessment being the foundation of the order of eviction
(which flows from the non-compliance of the terms of the provisional
assessment), the tenant in an appeal against the order of eviction is
entitled to question the correctness of the order of provisional
assessment. This is available even after an order of eviction has been
passed. Harjit Singh Uppal (supra) holds that the right is not lost upon an
order of eviction being passed.
25 In the present case, the petition for eviction that was filed by the
appellant proceeded on the basis that the rent had remained in arrears from
1 November 2005. The averment in the petition was to the following effect
:
“(a) That the Respondents have neither paid for tendered the due rent
w.e.f. 01.11.2005 to 31.05.2006 @ Rs.25,000/- p.m. and w.e.f. 01.06.2006
onwards at the rate of Rs.28,000/- p.m. Even the cheques issued by the
Respondents in favour of the petitioner have been dishonoured.”
26 The Rent Controller by his order dated 14 November 2007 required the
respondent to deposit the arrears of rent with effect from 1 June 2005 till
the filing of the petition and thereafter till the passing of the order at
the rate of Rupees 19,000 per annum together with interest at 6 per cent
per annum and costs quantified at Rupees 500 on 14 December 2007. Though
the rent was directed to be deposited with effect from 1 June 2005 (and not
1 November 2005) it must be noted that the tenant got the benefit of an
order for depositing only Rupees19,000 per month (as against the agreed
rent of Rupees 25,000 per month till 31 May 2006, and Rupees 28,000 per
month thereafter). The Respondents did not deposit anything – not even the
admitted amount – within the period fixed. In the course of the hearing of
the Civil Revision, the appellant conceded before the High Court that the
determination of arrears with effect from 1 June 2005 was erroneous since
the Rent Controller ought to have determined the arrears only from 1
November 2005. The High Court has recorded the concession in the following
observations :
“….The counsel for the landlord is prepared to admit that the Rent
Controller had made a mistake in making a reference that the Rent
determined by it namely Rs.19,000/- to be payable from 01.06.2005 and that
it should have been only from 01.11.2005.”
On this foundation, the High Court observed thus :
“….. I have already observed that the landlord’s counsel does not deny
before me that the direction to pay rent from 01.06.2005 was a mistake. The
determination of provisional rent could not be merely with reference to the
rate of rent but also the quantum of rent. The quantum of rent by its
reference to a period when there was no default, was therefore, in error
and the correctness of such finding was surely susceptible for a challenge
to Appellate Forum. The Appellate Authority ought to have seen that if it
was admitted that the tenant was in default only from 01.11.2005, the
payment of arrears for 30 months was mistake, it was liable to be set
aside. That had the consequential relevance for also setting aside the
order of ejectment that was passed for alleged non-compliance of the order
which was erroneous. If the first order of determination of provisional
rent was erroneous and liable to be set aside, the consequential order of
ejectment for non-compliance was also bound to be set aside.”
Was the High Court correct in taking this view?
27 One line of interpretation for construing the provisions of Section
13 is that which has been suggested on behalf of the respondents.
According to this interpretation (which seeks to draw sustenance from the
observations in Harjit Singh Uppal (supra)), the tenant would be at liberty
to ignore the order of provisional assessment passed by the Rent Controller
and upon the passing of an order of eviction for non-compliance, to pursue
the remedy of an appeal under Section 15(1)(b). According to this line of
interpretation, in the appeal under Section 15(1)(b) the tenant may
demonstrate that the order of provisional assessment was erroneous and as a
consequence thereof, the order of eviction must fail. The issue is whether
such an interpretation must be adopted invariably in all cases. In our
view, the interpretation of the provisions of Section 13 must bring about a
just balance between the rights of the tenant and those of the landlord.
On the one hand, there is a need for protecting the tenant against being
subjected to a disproportionate demand by the landlord and of suffering in
consequence, an unjust decree of eviction. On the other hand there is a
need to protect the landlord against the tactics which a recalcitrant
tenant may adopt by deploying every gambit in the rule book to defeat the
just claims of the landlord to the payment of rent. The judgment rendered
by this Court in Wadhawan (supra) and reaffirmed by a Bench of three Judges
in Vinod Kumar (supra) brings about a just balance by interposing the
function of the Rent Controller who determines on a provisional basis the
arrears of rent, interest and costs. This determination ensures on the one
hand that while the tenant is protected against an unjust demand by the
landlord, the landlord in turn is not deprived of the just dues owing on
account of the use and occupation of the property by the tenant. Upon a
provisional determination being made by the Rent Controller, the tenant
must deposit the amount of the demand, on the first hearing of the
application for ejectment. What needs to be kept in mind is, that the
proviso under 13(2) (i) is a concession, and also, that it is based on a
provisional “assessment”. A tenant admitting to be in arrears of rent,
within the parameters provided for under Section 13(2)(i), is liable to
eviction forthwith. To avail of the concession, the provisional
“assessment”, must be complied with. If the tenant does so the payment is
deemed to have been made within time. If the tenant fails to do that, the
Rent Controller is empowered to pass a decree for eviction. The manner in
which a wrongful provisional “assessment” will be remedied have been laid
down in Wadhawan and Vinod Kumar (supra). The tenant upon complying with
the order of the Rent Controller is not left without a remedy. When the
Rent Controller subsequently makes a final determination of the rent
payable, if it is found that the tenant has paid an amount in excess, the
Rent Controller can issue directions for refund or adjustment, as the case
may be. A tenant who complies with an order of provisional assessment by
the Rent Controller is to be protected against eviction. At the same time,
the tenant is entitled to pursue the challenge to the assessment made by
the Rent Controller. A tenant who fails to observe the order of
provisional assessment will not be protected against an order of eviction.
That will, however, not deprive the tenant of a right of appeal, as held in
Harjit Singh Uppal (supra).
28 The dispute which the tenant seeks to raise in regard to the rent
which is payable may straddle several aspects. There may be a dispute of
the rate of rent. The period over which the rent has not been paid may be
in dispute. Where the tenant has admitted that the rent is due and payable
at least for a certain period, it is necessary that the Court should adopt
an interpretation which does not permit the tenant to defeat the just claim
of the landlord. The present case is an object example of such a situation.
The lease agreement between the parties provided for a rent of Rupees
25,000 for the first year of the lease ending on 31 May 2006, and which was
to stand enhanced to Rupees 28,000 for the remaining two years. The Rent
Controller directed the tenant to deposit only an amount of Rupees 19,000
(representing the component of the basic rent for the first year, the
remaining amount of Rupees 6,000 being towards furniture and fixtures).
After the Rent Controller made his provisional determination on 14 November
2007 the tenant sought to dispute essentially that part of the
determination by which the Rent Controller had fixed the amount due and
payable from 1 June 2005. The prayers made by the tenant in the review
petition would indicate that even according to the tenant, rent was due and
payable at least for the duration which was referred to therein. The
tenant was granted, in the appeal filed against the order of eviction, a
conditional stay requiring the tenant to deposit the arrears and to
continue to pay the rent for the subsequent period on a monthly basis. The
tenant failed to comply with this order. An application for modification
and for extension of time was moved which was rejected by the appellate
Court. The civil revision against the order of rejection was also dismissed
by the High Court. The appellant has provided in the special leave petition
a table setting out the cheques that were issued by the respondents in
favour of the appellant both towards the rent and towards furniture and
fixtures which were dishonoured. This is extracted below :
Cheques issued by the Respondents in favour of Petitioner Dalip Kaur, which
were dishonoured
| Sl.No. |Cheque No. |Amount |Dated |Bank |Reason for |
| | |(Rs.) | | |dishonour |
|1 |055192 |19,000/- |7.11.2005 |Bank of |Insufficien|
| | | | |Punjab |t |
| | | | | |Funds |
|2 |055194 |19,000/- |7.12.2005 | -do- |-do- |
|3 |055196 |19,000/- |7.1.2006 |-do- |-do- |
|4 |055198 |19,000/- |7.2.2006 |-do- |-do- |
|5 |055200 |19,000/- |7.3.2006 |-do- |-do- |
|6 |069589 |19,000/- |7.4.2006 |-do- |-do- |
|7 |069404 |19,000/- |7.5.2006 |-do- |-do- |
|8 |069448 |21,000/- |7.3.2008 |Bank of |-do- |
| | | | |Punjab/ | |
| | | | |Centurion | |
| | | | |Bank | |
|9 |069450 | -do- |7.4.2008 | |-do- |
|10 |069581 |-do- |7.7.2008 | |-do- |
Cheques issued by the Respondents towards furnitures and fixtures in favour
of Pushp Roop Singh Brar which were dishonoured
| Sl.No. |Cheque No.|Amount |Dated |Bank |Reason for |
| | |(Rs.) | | |dishonour |
|1 |069449 |7,000/- |7.3.2008 |Bank of |Insufficien|
| | | | |Punjab/HDFC |t Funds |
| | | | |Bank | |
|2. |069576 |7,000/- |7.4.2008 | -do- | -do- |
|3. |069582 |7,000/- |7.7.2008 | -do- |-do- |
The appellant was constrained to file a complaint under Section 138 of the
Negotiable Instruments Act, 1881. She is a widow who has been made to run
from pillar to post to secure the just payment of dues legitimately owing
to her. The respondents are facing trial and have been granted bail by the
CJM, Ludhiana. The conduct of the respondents has been noticed in the
judgment of the High Court dated 31 March 2008 where the High Court records
that :
“….the petitioners admitted the fact that they were unable to pay the
arrears of rent and sought one month’s more time to arrange the money.”
The High Court further observed as follows :
“As the facts would speak for themselves, the petitioners have been
adopting one or the other delaying tactics in order to wriggle out of their
liability to pay the arrears of rent. Firstly, they contended that since
the arrears of rent were demanded by the respondent with effect from
1.11.2005, they could not be asked by the Rent Controller to tender the
same with effect from 1.6.2005.
Be that as it may, the Appellate Authority vide order dated 7.1.2008
granted them stay and permitted the petitioners to pay the rent within a
period of one month. Had there been any bona fide intention to pay the
rent, the petitioners could deposit the same without prejudice to their
rights and any excess payment, if any, could very well be adjusted against
the future rent. However, instead of depositing the arrears of rent, they
sought extension of time and wanted to deposit only part of the arrears of
rent.
If one reads the application moved by the petitioners for extension of
time, it can be safely inferred that before the Appellate Authority, they
coined a new objection against payment of rent for the subsequent period by
7th of every calendar month. The petitioners presumably wanted to suggest
that they could be directed to pay the arrears of rent till the filing of
the ejectment petition only and not for the subsequent period.
In these circumstances when either the petitioners are unable to pay the
rent due to lack of funds or they deliberately don’t want to pay the same,
no case to interfere with the impugned orders in exercise of the revisional
jurisdiction of this Court is made out.”
The facts before the Court leave no manner of doubt that there was a
stubborn and steadfast unwillingness on the part of the tenant to comply
with the order passed by the Rent Controller even to the extent of non-
deposit of rent for the period for which it was admittedly due and
payable. The tenant even went to the extent of claiming that a direction
could have only been issued for the deposit of the arrears and not for the
payment of the rent for subsequent months as directed by the appellate
court as a condition for the grant of stay. Accepting the line of
interpretation which has been suggested by the respondents would lead to a
situation where, though the rate of rent is not in dispute and the tenant
admits that rent is due and payable for a certain duration of time (while
disputing the quantum of arrears) the landlord in pursuance of a
determination made on a provisional basis by the Rent Controller would be
deprived of the rent due and payable, while the tenant takes a chance of
being able to demonstrate in the course of an appeal against the order of
eviction that the initial determination for a certain part of the period
was not payable. In our view such an interpretation would defeat the object
and purpose of Section 13 and the rationale for the decision of this Court
in Wadhawan (supra) which has brought about a balance between the rights of
the landlord and the tenant. If the respondents intended to dispute the
claim of arrears for a specified period, there was no reason or
justification for them not to deposit the rent. It needs to be kept in
mind, that the legislative concession, extended to tenants through the
proviso under Section 13(2)(i), is available conditionally. To be entitled
to be saved against eviction, the tenant must satisfy the conditions laid
down. To understand the words “assessed by the Rent Controller”, as
“correctly assessed”, would not be proper. Arrears payable by a tenant,
would be correctly assessed only after evidence is recorded and concluded.
The instant assessment is clearly provisional. It is made, even before
evidence has commenced to be recorded. Therefore, it would be improper to
understand and extend to such assessment, any further meaning. Every kind
of excuse was made by the tenant for not paying the rent due and payable.
As we have set out earlier the cheques that were issued to the appellant
were dishonoured. In this view of the matter, the tenant cannot have the
benefit of the observations contained in the judgment of this Court in
Harjit Singh Uppal (supra) for the simple reason that they would not come
to the aid of a tenant who has not deposited even the admitted dues in
pursuance of the determination which has been made by the Rent Controller,
even though the proviso extends the concession, only to tenants who have
complied. The High Court while determining whether the provisional
determination of the Rent Controller was correct or otherwise could not
have ignored the position that while the rent payable was Rupees 25,000 per
month till 31 May 2006 and Rupees 28,000 per month from 1 June 2006, the
Rent Controller had directed a deposit only of Rupees 19,000 per month. The
Respondents deposited nothing within the period fixed and a deposit made in
May 2008 would not enure to their benefit.
29 For these reasons, we are of the view that the High Court fell into
error in allowing the revision application against the judgment and order
of the appellate authority and in setting aside the order of eviction. The
Civil Revision filed by the respondents was liable to be dismissed and we
order accordingly.
30 We accordingly allow the appeal and set aside the impugned order of
the High Court dated 29 April 2015. The order of eviction passed by the
Rent Controller as confirmed by the appellate authority shall accordingly
stand restored.
31 The respondents shall pay costs to the appellant quantified at Rupees
50,000.
...........................................CJI
[JAGDISH SINGH KHEHAR]
….............................................J
[Dr D Y CHANDRACHUD]
New Delhi;
April 11, 2017
ITEM NO.1A COURT NO.1 SECTION IVB
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
C.A.No.5129/2017 @ Petition(s) for Special Leave to Appeal (C)
No(s).24952/2015
DALIP KAUR BRAR Appellant(s)
VERSUS
M/S. GURU GRANTH SAHIB SEWA MISSION
(REGD.) AND ANR. Respondent(s)
Date : 11/04/2017 This appeal was called on for judgment today.
For Appellant(s) Mr.Sudhir Walia, Adv.
Mr. Abhishek Atrey, Adv.
For Respondent(s) Mr.Rajesh Sharma, Adv.
Ms. Shalu Sharma, Adv.
Hon'ble Dr.Justice D.Y.Chandrachud pronounced the judgment of
the Bench comprising Hon'ble the Chief Justice of India and His Lordship.
Leave granted.
The appeal is allowed in terms of the signed judgment. The
order of eviction passed by the Rent Controller as confirmed by the
appellate authority shall accordingly stand restored.
The respondents shall pay costs to the appellant quantified at
Rupees 50,000.
(SATISH KUMAR YADAV) (RENUKA SADANA)
AR-CUM-PS ASSISTANT REGISTRAR
(Signed reportable judgment is placed on the file)
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[1]
[2] the Act
[3]
[4]RA 1948 of 2008
[5] [6] (1999) 5 SCC 590
[7] [8] (2012) 12 SCC 554
[9] [10] (2002)5 SCC 440
[11] [12] (2003) 11 SCC 397
[13] [14] (2011)11 SCC 672
-----------------------
|REPORTABLE |
