BHIM SAIN Vs. LAXMI NARAIN

JUDGEMENT

(1.) Since doubt was entertained by S. P. Goyal, J. with regard to the correctness of the rule propounded in Nasib Singh v. Om Parkash, (1979) 81 Punj LR 502 : (AIR 1979 Punj & Har 96) this petition for revision was admitted by him to a Division Bench. Hence the listing of the petition before us.

(2.) Facts giving rise thereto are plain and simple. the landlord-respondent had sought eviction of the tenant-petitioner's before the Rent Controller, Narwana on a variety of grounds. One such ground was that the tenant had not paid or tendered the rent due to him and was thus in arrears from 1-3-1978 till date. The rate of rent claimed was Rs.110/-. The tenant while denying the allegations in the eviction petition claimed in his written statement that the rate of rent was Rs.75/- per mensem. All the same to avoid eviction, the tenant availed of the first proviso to S. 13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act. 1973(briefly referred to as the Act) by making payment of the arrears of rent at the rate of Rs.11/- per mensem as asked for. Having warded off summary eviction, the tenant applied to the Rent Controller that an issue be struck which should determine the rate of rent--whether it was Rs.75/- per mensem or Rs.110/- per mensem. The Rent Controller issued notice on that application to the landlord. He, while resisting it countered, that after the tender of the arrears of the rent, the ground of eviction on the basis of nonpayment of arrears of rent had been rendered infructuous and thus the tenant should seek his remedy by filing an independent suit under S. 7 of the Act. According to the landlord, there was no necessity of framing the issue sought. Agreeing with the contention of the landlord, the Rent controller vide his order dated 3-6-1981, now under challenge, dismissed the application.

(3.) The learned counsel for the petitioner in support of his contention cited before S. P. Goyal, J. Nasib Singh's case (AIR 1979 Punj & Har 96) (supra) as has been done before us. That decision was rendered by my learned brother M. R. Sharma, J. (who is now with me as a partner in the Bench). In addition thereto, he relied on some other single Bench cases which wholly or partially supported his contention. We propose to deal with each of them presently. On the other hand, learned counsel for the landlord-respondent did not cite before us a single judgment to the contrary.