GULSHAN RAI AND OTHERS Vs. DEVI DAYAL

JUDGEMENT

(1.) TENANCY of a shop was created by the landlord, who is the applicant in this revision application, in favour of the tenant by a rent -note of January 27, 1961. The rent -note states that rent up to January 31, 1961, has been paid and that future rent will be paid month by month.

(2.) ON April 19, 1961, the tenant made a deposit of Rs. 144/ - being rent for the months of February, March and April, 1961, under section 31 of the Punjab Relief of Indebtedness Act, 1934 (Punjab Act 7 of 1934), in the Court of a Subordinate Judge. Section 31 of that Act reads thus -

(3.) THERE remains then the only other ground that the tenant was in arrears of rent on the date of the application for ejectment made by the landlord, that is to say, on June 4, 1961. There was some controversy before the authorities below with regard to the arrears of rent for the month of May, 1961, but obviously, as rent for the month of May is not payable until June 15, 1961, there were no arrears of rent with regard to that month and this is how the Appellate Authority has looked at the matter. So that on the date of the application for ejectment the arrears were only for the months of February and March, 1961. The counsel for the parties are agreed that in this case the first hearing of the application for ejectment was August 21, 1961. On that date the counsel for the tenant tendered the amount of Rs. 144/ -, as already deposited in the Court of the Subordinate Judge on April 19, 1931, and, in addition, paid interest on the arrears to the tune of Rs. 1/4/ -. No amount of costs of the application was paid and the order of the Rent Controller of that date says - 'I assess no costs'. According to the proviso to section 13 (2) (1) of East Punjab Act 3 of 1949, where the tenant is in arrears of rent, he is liable to ejectment "provided that if the tenant 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 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 time referred to is the time given in clause (i) of sub -section (2) of section 13. The learned counsel for the landlord contends that, in any event, on the date of the application for ejectment, and obviously on the date of the first hearing the tenant was in arrears of rent for the months of February and March, 1961, so that he was on the first hearing of the application for ejectment to pay the arrears plus the interest thereon plus the costs of the application assessed by the Rent Controller, but while he may be taken to have paid the first two amounts, he was not paid the third, that is to say, he has not paid the costs of the application. The reply by the learned counsel on behalf of the tenant is that on the date of the application as also on the date of the first hearing of the same, there were no arrears of rent because, long before that, rent for the months of February, March, and April had been deposited on April 19, 1961, in the Court of the Subordinate Judge in the wake of section 31 of Punjab Act 7 of 1934. This would have been correct if on the arrears for the months of February and March, the tenant had also deposited interest due at the rate of six per cent per annum down to April 19 1961. In that event the landlord would not have been justified to make an application for ejectment of the tenant under section 13 (2) (i) of East Punjab Act 3 of 1949, because according to that clause, read with the proviso to it, in the case of arrears all that the landlord is entitled to is the arrears of rent with interest at six per cent per annum, and this is what he gets in the end when he files the application for ejectment and the payment is made pursuant to the proviso to clause (i) of sub -section (2) of section 13. If therefore, the tenant had on April 19, 1961, along with the arrears for the months of February and March also deposited interest due on those arrears to that date, the landlord would have had no justification for his application and on the date of the application he could not have said that there were any arrears on the basis of which he could claim eviction, the same having been paid with interest before the filing of the application. If the result is dismissal of the application on payment made according to the proviso to clause (i) of sub -section (2) of section 13 of East Punjab Act 3 of 1949 on the first hearing of that application, it must follow that there is no justification for such an application if the arrears with interest are paid before such an application is made. But in this case, as has been explained already, the tenant did not deposit interest on the arrears for the months of February and March, 1961, so the deposit was not complete. The landlord was, therefore, justified in approaching the Rent Controller for eviction of the tenant on the basis of arrears in payment of rent. He having done so, on the first hearing of the application for ejectment the tenant had to make payment according to the proviso to section 13 (2) (i). He complied with the requirement in regard to payment of the first two amounts, that is the amount of arrears of rent and interest at the statutory rate, but he did not pay costs, and why, the answer is the order of the Rent Controller himself that he did not assess costs. Now, according to the proviso to section 13 (2) (i) of the said Act, the third amount to be paid by the tenant is 'costs of the application assessed by the Rent Controller', and where the Rent Controller by an order in writing refuses to assess costs, there is nothing that the tenant can do to make payment of the costs within the meaning and scope of that proviso. The learned counsel for the landlord says that, even if the Rent Controller refuses to assess costs, as he actually did, the tenant should have at least deposited some amount towards costs. This, however, is not the requirement of that proviso. A penal consequence arises against the interest of the tenant only if he fails to comply with the terms of that proviso. But, where the Rent Controller does not perform his duty and does not assess costs of the application for ejectment, the tenant is helpless and he cannot be penalised for not doing what he could not do because of the failure of the Rent Controller to perform his duty. I have no manner of doubt that the order of the Rent Controller is basically erroneous because that proviso requires the tenant to pay 'costs of the application assessed by the Rent Controller' and in view of the language used, the Rent Controller had no power or jurisdiction not to assess costs. He is duty bound to assess costs, so that the tenant may be able to comply with the proviso. As I have already pointed out, because of the failure of the Rent Controller to appreciate the nature of his duty and because of his failure to perform his duty under the statute, the tenant cannot be penalised. He has done all that the statute required within its terms. No doubt if the Controller has assessed the costs and the same are not paid, the consequence must follow as in section 13 (2) (i) of East Punjab Act 3 of 1949. So, where the Rent Controller merely makes an omission to assess costs but the tenant does not invite him to do so, so that he may be able to comply with the proviso to that provision, the case is entirely different and the tenant cannot have benefit of disobedience in the one case and his failure to invite the Controller to do his duty in the other. Here is a case in which the Controller has made a definite order refusing to assess costs and the consequence is that there were no costs assessed by the Controller within the proviso to clause (i) of sub -section (2) of section 13 of East Punjab Act 3 of 1949 which the tenant has failed to pay. So that this is not a case in which the tenant has failed to comply with the terms of that proviso. This argument on the side of the landlord obviously fails.