LACHMAN DASS Vs. SATYA PAL

JUDGEMENT

(1.) The landlord, who is the petitioner in this revision application, succeeded before the Rent Controller in obtaining an order of eviction against the tenant-respondent on the ground that the latter had not paid full amount of interest payable under the proviso to clause (i) of sub-section (2) of Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949), but before the Appellate Authority the tenant succeeded in his appeal, of which the result was the dismissal of the application of the landlord for eviction of the tenant.

(2.) The rent of the demised premises is Rs. 5.12 paise per mensum. The application for eviction was filed by the landlord on October 31, 1962. There has been no agreement between the parties fixing the date of payment of the rent. So according to clause (i) of sub-section (2) of Section 13 of the Act, the rent due for a month is payable by the tenant by the last date of the month next following. On the date of the application, on October 31, 1962, the rent for the month of October had not yet become due and definitely it was not yet payable by the tenant. With regard to the earlier month of September, the rent for that month had become due by the end of the month of September, 1962, but it was payable by October 31, 1962, and the whole of the day of October 31, 1962 would be available to the tenant to make the payment. So when the landlord made the application on October 31, 1962, rent due was down to September, 1962 but was only payable for 25 months down to August, 1962. It has been held by a Division Bench of this Court in Ishar Dass Tara Chand V/s. Harcharan Dass,1961 14 Punjab 315 that under the proviso to clause (i) of sub-section (2) of Section 13, arrears of rent mean arrears down to the date of the application for eviction. So far the purposes of that proviso, on the first hearing of the application for eviction by the landlord, the tenant was to pay arrears of rent up to October 31, 1962, with interest and costs of the application. The first date of hearing was October 9, 1963. On that date the tenant paid into Court two sums of money : one sum of Rs. 25/- was towards costs for setting aside the ex parte eviction order, and the second amount of Rs. 170/4/- was towards the arrears of rent, interest and costs of the application. The Rent Controller was of the opinion that rent for the month of September, 1962 was also in arrears and, if the amount of rent for that month was taken into consideration, although the arrears of rent had been duly paid, but the interest was short by Re. 1/- and, therefore, the tenant had not complied with the terms of the proviso to clause (i) of sub-section (2) of Section 13. He, therefore, made an order of eviction against him. On appeal the Appellate Authority agreed with the Rent Controller that the full amount of the interest had not been paid on the first date of hearing and in fact was of the opinion that the payment of interest was short by Rs. 4/8/- and not only Re. 1/-, but reversed the order of the Rent Controller on the ground that under Section 13 it is discretionary with the Rent Controller to order or not to order eviction in spite of there being arrears of rent and non-compliance with the proviso to clause (i) of sub-section (2) of Section 13. In this approach obviously the Appellate Authority has been in error. The Rent Controller, on a finding like this, has no option but to proceed to order the eviction in the terms of Section 13.

(3.) If this was the consideration, this revision application by the landlord would have to be accepted and the order of the Rent Controller restored, but the learned counsel for the tenant contends that in this case the rent for month of September, 1962 was not payable on October 31, 1962, and consequently it had not come within the scope of the words 'arrears of rent'. He points out that although rent for the month of September had become due in October, but, as there was no agreement between the parties for the payment of the rent by a certain date, in the terms of clause (i) of sub-section (2) of Section 13 the tenant was entitled to make the payment of the rent due for September down to October 31, 1962. Before that date totally expired, the landlord made the eviction application on the basis of non-payment of arrears of rent. As pointed out, in view of the decision in Ishar Dass Tara Chand's case , the arrears of rent are to be reckoned to the date of the application, and in this case to October 31, 1962. The learned counsel for the landlord contends that the expression 'rent due' in clause (i) of sub-section (2) of Section 13 has the same meaning as the expression 'arrears of rent' in the proviso to that clause, and in this respect relies upon a Division Bench decision. Basant Ram V/s. Gurcharan Singh, 1959 61 PunLR 591 but that decision does not support him, and could not possibly have supported him for this simple reason that clause (i) itself draws a clear distinction between 'when the rent is due' and 'when it is payable', and it only becomes arrears of rent when it is not paid to the date by which it is payable. Consequently on the date of the application for eviction in this case rent for the month of September, 1962 was not in arrears. If the amount of the rent for that month is excluded, then there is no shortage in the amount of the interested paid by the tenant. The learned counsel for the landlord then refers to Section 59 of the Contract Act, which section says - "Where as debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, it accepted, must be applied accordingly", and he contends that when the tenant in his statement on October 9, 1963, appropriated out of the amount of Rs. 170/4/-, an amount of Rs. 133/4/- towards arrears of rent, Rs. 25/- towards costs of the eviction application and Rs. 12/- towards interest on the arrears of rent, he cannot now be permitted to re-appropriate th whole or part of the amount already appropriated towards the arrears of rent including rent for the month of September, 1962, though not in arrears on the date of the eviction application but became in arrears by the time the amount was paid and in this way he cannot have any excess from that amount to reduce the amount of the interest so that he can have benefit of the proviso to clause (i) of sub-section (2) of Section 13. I am not for a moment prepared to agree that any statement made with regard to the payment of amounts in the terms and under that proviso will attract the provisions of Section 59 of the Contract Act and debar a tenant from subsequently showing that he has made a mistake and on actual calculation the truth is that he has fully complied with the proviso. But it is not necessary to go into this question in the present case. The reason is this that as soon as the rent for the month of September, 1962 is not in arrears of amount of the interest to the date of the application comes to something little over Rs. 8/- and the tenant has paid Rs. 12/- towards the interest, which is much more than was the interest on the on the date of the application. There remains only one argument of the learned counsel for the landlord to consider and that is that while according to the decision in Ishar Dass Tara Chand's case , the arrears of rent are to be counted down to the date of the eviction application, but the interest on the arrears is to be counted not to that date and it has rather to be counted to a subsequent date which is the date ion which the tender is made according to the proviso to clause (i) of sub-section (2) of Section 13. The contention is so illogical that it is stated to be discarded straightway. There is nothing in the proviso which justifies that arrears of rent are to be reckoned for the purposes of the proviso down to the date of eviction application, and the interest on those arrears is to be reckoned not to that date a different date.