HARDIAL SINGH Vs. HARINDERPAL

JUDGEMENT

(1.) The landlord is before this court impugning the order dated 5.3.2005, passed by the Rent Controller, whereby while rejecting the application filed by the tenant for correction of the order dated 17.3.2004 assessing the provisional rent, it had granted opportunity to the tenant to tender the rent in accordance with the order passed earlier. Learned counsel for the petitioner-landlord submitted that the landlord filed the eviction petition on 17.2.1998, in which eviction order was passed on 5.2.2002 on account of non-payment of rent. In appeal, the matter was remanded back. After remand, vide order dated 17.3.2004, the rent was assessed and 23.3.2004 was fixed as the date for tendering the rent. On that date, the matter was adjourned to 24.3.2004 on the request of the tenant. On that date, a sum of Rs. 3,150/- was tendered by the tenant, which was accepted by the landlord under protest. On 26.4.2004, the landlord filed application for directing eviction of the tenant on account of non-payment of the provisional rent assessed. In reply dated 30.7.2004, the stand of the tenant was that the amount written in the order passed by the court was different than what was pronounced in court. The aforesaid application is still pending. However, an application dated 30.7.2004 was filed by the tenant for correction of the order dated 17.3.2004 for bringing the same in consonance with the verbal order passed in court and for correcting the provisional rent assessed. After considering the contentions raised by learned counsel for the parties, the court below rejected the same vide impugned order dated 5.3.2005. The aforesaid order is impugned by the landlord in the present petition to the extent further time was granted by the court to the tenant for tendering the rent.

(2.) Learned counsel for the landlord submitted that the impugned order passed by the court below granting further time to the tenant for tendering the rent suffers from patent illegality. There was no prayer made by the tenant in the application for extension of time once his application for correction of the order was dismissed. The order passed by the court is beyond the prayer made, which otherwise also could not be granted. In fact, it amounts to review of the order. The order dated 17.3.2004 was not challenged on merits. Only the correction was sought. In terms of settled law, on account of non-payment of provisional rent assessed, the eviction followed. In fact, the entire effort of the tenant was to scandalise the court, as the plea sought to be raised was that the written order was different than what was pronounced in court. He further submitted that in case such a course is permitted to be adopted by the tenants, it can lead to misuse of process of court by unscrupulous tenant, as in every case where the tenant is not able to tender the provisional rent assessed, he may file such a frivolous application and gain time, which is not in the spirit of law laid down.

(3.) On the other hand, learned counsel for the tenant submitted that the stand of the tenant from the very beginning was that the agreed rent was Rs. 500/- per month. Initially, the eviction order was passed against the tenant, which was set aside in appeal. Vide order dated 5.2.2002, the rent was held to be Rs. 500/- per month. However, when the provisional rent was assessed vide order dated 17.3.2004, the same was assessed at Rs. 1,400/- per month. When the correct amount of arrears was tendered, the landlord accepted the same under protest by saying that the rent should have been tendered @ Rs. 1,400/- per month. In reply to the application filed by the landlord seeking eviction of the tenant on account of non-payment of the provisional rent assessed, the application for correction was filed simultaneously. The intention of the tenant was not to avoid payment, rather, was to pay the correct amount of rent. The prayer in the application was not to seek extension of time, rather, for correction in the order. The extension granted by the court was consequential as the application for correction was dismissed. The order dated 17.3.2004 assessing provisional rent, being non-speaking, the matter may be remitted back for assessing provisional rent.