TIRLOK CHAND SAXENA Vs. SANT LAL DHAWAN

JUDGEMENT

(1.) RESPONDENT /landlord filed an eviction application against the petitioner/tenant under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973. In that application, eviction was sought on the ground of non-payment of rent w.e.f. 1.11.1983 to 30.10.1986 @ Rs. 400/- per month. Petitioner filed reply to that application, wherein, he denied the existence of relationship of landlord and tenant between them. It was further contended that rate of rent was not Rs. 400/- per month, as alleged, rather it was Rs. 50/- per month. It was further stated that entire rent till June, 1986 had already been paid to the landlord. Before the Rent Controller, tenant on his own, without any assessment made in that regard by the Rent Controller, tendered rent @ Rs. 50/- per month from July, 1986 to October, 1986, which was accepted by the landlord. Rent Controller, after recording evidence of both the parties, came to a conclusion that there existed a relationship of landlord and tenant between them. Ejectment of the petitioner was ordered on the ground of non-payment of rent. It was found, as a matter of fact, that the petitioner had failed to prove that he had paid rent to Shri K.C. Dhawan, alleged landlord, till June, 1986. Petitioner went in appeal, which was dismissed. Hence, this revision petition.

(2.) AS per office report, service is complete. However, nobody has put up appearance on behalf of respondent/landlord. Counsel for petitioner Mr. Giani has vehemently contended that since no assessment of interest and costs was made by the Rent Controller, after the petitioner put up appearance before that Court, his ejectment could not be ordered on the ground of short tender/non-payment of rent. He has relied upon a judgment of Hon'ble Supreme Court in Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and Others, (2000-2) The Punjab Law Reporter 370 : 2002(1) RCR (Rent) 514 (SC).

(3.) IN this case also, Rent Controller had failed to comply with the provisions of proviso to Section 13(2)(i), appellate authority had also failed to take note of above mentioned irregularity which goes to the root of the case, as such, both the orders cannot be sustained. Revision Petition is allowed. Orders passed by the Rent Controller and also by the appellate authority are set aside. Case is remitted back to the Rent Controller, who, after affording an opportunity to the parties, will pass a provisional order, under proviso to Section 13(2)(i), afford an opportunity to the tenant for making payment or tender rent and then proceed to decide the case afresh. Rent Controller is directed to take note of the judgment passed by their Lordships of Hon'ble Supreme Court in Rakesh Wadhawan's case (supra), while deciding this case afresh. After receipt of records of this case and order passed by this Court, Rent Controller will issue notice to both the parties to appear before it. No order as to costs. Order accordingly.