HIRDAY RAM Vs. SOM NATH AND OTHERS

JUDGEMENT

(1.) This is a landlord's revision application on his failure to obtain eviction of the tenant, which was claimed on a number of grounds, but only two grounds survive for consideration in this revision application.

(2.) The first ground urged is that the first date of hearing of the eviction application was October 30, 1964. the application having been made by the landlord on September 24, 1964. After the case had been adjourned on October 30, 1964, to a future date, on the very day the tenant appeared before the Rent Controller, with his counsel, and under the orders of the Rent Controller made a deposit in the treasury of the amount of arrears claimed by the landlord with costs of the application and interest calculated up to the date of the application, which, as stated, was September 24, 1964. An argument on the side of the landlord that this was not a tender within the meaning and scope of 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), because it had not been made when the eviction was called for hearing by the Rent Controller and had been made after the eviction application had been adjourned to a future hearing, though made on the very same day, did not find favour with the authorities below, the authorities relying in this respect on Mukh Ram v. Siri Ram, in which the learned Chief Justice held that the law does not require that the amount of rent should be tendered to the landlord himself or to the counsel of the landlord. It declares merely that the tender should be made on the first hearing of the case. Tender would be perfectly valid in the eye of law if it is made either to the landlord or his counsel or agent, or to the Controller for payment to the landlord, and the learned Chief Justice further held that when the Legislature has directed that the tenants should tender the arrears of rent on the first hearing of the application, it appears to require that the tender should be made at any time on the day on which the application comes up for hearing for the first time, and that if the tender is made at any time during the working hours, the provisions of law are completely satisfied. I agree entirely with the opinion of the learned Chief Justice and so this argument is not available to the landlord even at this stage in revision.

(3.) The only other argument that is urged by the learned counsel for the landlord is that while making payment in the wake of the proviso to clause (i) of sub-section (2) of section 13 of the Act, the tenant paid interest on the arrears of rent down to September 24, 1964, that is to say, down to the date of the eviction application, whereas his liability was to pay interest on those arrears down to the-date of the first hearing, that is to say, down to October 30, 1964, as held by a Division Bench of this Court in Puran Chand v. Mangal,1969 RCR 20. So, according to him, the tenant did not comply with that proviso. On this short ground, he says, the tenant must suffer eviction. The reply on the side of the tenant by his learned counsel is that even though the tenant has paid interest on the arrears of rent down to the date of the eviction application only and not down to the date of the first hearing, but the payment made by him covers all that he was to pay under the proviso to clause (i) of sub section (2) of section 13 of the Act. His first contention in this respect is that the landlord in his eviction application claimed in the arrears an amount of Rs. 39/- as the amount of house-tax paid by him which he could not claim as arrears as held by the learned Judges in Puran Chand's case. In that case the learned Judges were of the view that under section 9(1) of the Act there is no automatic increase in the rent on account of the landlord having paid house-tax. He has to take steps to increase the rent to the extent of the amount of the house-tax paid and then only the increase becomes a part of the rent. The step that he may take in this respect may be a notice of demand for increase of the rent. No such notice was given by the landlord to the tenant in the present case. A claim in an eviction application does not appear to have been held by the learned Judges in Puran Chand's case to be a step by the landlord to increase the rent by the amount of the house-tax paid by him. This is for obvious reason, that is to say, the claim on the basis of arrears of rent due in an eviction application cannot be when a part of the alleged arrears is no more than a demand for increase of the rent, because the landlord has paid the house-tax. The learned counsel for the landlord refers to the written reply of the tenant in which he admitted the amount of the house-tax and the arrears of rent and said that he was prepared to pay both. Unless the eviction application can be treated as a demand notice, any such statement in the written reply of a tenant will not amount to an increase in the rent on account of levy of house-tax according to section 9(1) of the Act. At best it may be treated, and I think that would be straining the circumstances as an agreement reached between the parties on the date of the written reply of the tenant that the amount of house-tax will form part of the rent, but obviously that will not help the landlord, because such an agreement will date from the date of the written reply of the tenant and the amount of the house-tax will not be arrears in relation to the eviction application of the landlord from an earlier date as is the case here. At this stage the learned counsel for the landlord has pointed out that the house-tax was being already paid by the tenant. If this was so, the argument of the learned counsel for the tenant as above obviously will not come into consideration, for in such a case the parties shall have already agreed to the increase of the rent by reason of the levy of the house-tax. However, there is no material on the record of this case to show that this is a fact. So that this approach on the side of the landlord has no effect upon the argument on the side of the tenant. So the fact of the matter is that in his eviction application the landlord claimed as arrears Rs. 39/- in excess, which amount was also paid on the first date of hearing of the application by the tenant in the terms of the proviso to clause (i) of sub-section (2) of section 13 of the Act. The learned counsel for the tenant is right when he presses that this excess amount forced out of the tenant by the landlord cannot be ignored and any part of it that can be taken into consideration to clear the interest on the arrears of rent claimed down to the first date of hearing of the eviction application must be accounted in that manner, in which case not only has the tenant paid the whole of the interest payable according to the said proviso, but he has even paid much more. Now, this is an unanswerable argument. In the facts of this case, the landlord not having increased the rent according to section 9 of the Act, in the manner as explained by the learned Judges in Puran Chand's case, he could not claim the amount of the house-tax as arrears of rent. But the amount claimed by him as house-tax was paid by the tenant on the first date of hearing of the eviction application. This was an amount paid in excess of what the landlord was entitled to claim. Any such excess the tenant is entitled to adjust towards his liability to make payment under the proviso to section 13(2)(i) of the Act, and when that is done, there is a complete compliance by him with that proviso. There is, however, another aspect of this matter which is urged by the learned counsel for the tenant. He says that although the tenant paid interest on the arrears up to the date of the eviction application and not up to the date of its first hearing, but he paid interest not merely on the amount of arrears of rent of Rs. 625/ but also on the amount of house-tax of Rs. 39/- claimed as arrears. In this way, he says, there was excess payment of interest on Rs. 39/- to which the landlord was not entitled. According to him, even if no amount was reckoned from the amount of house-tax of Rs. 39/- towards interest, the excess interest paid on the amount of Rs. 39/- would meet any shortage of interest on the arrears of rent between the dates of the eviction application and its first hearing. To this the learned counsel for the landlord says that the amount of interest thus calculated will be less. This is a revision application in which the counsel should come prepared to meat such matters of calculation and give a ready answer to the same, and if no ready answer is available, the argument cannot be rejected. The learned counsel for the landlord says that this argument can be met if some kind of further calculation is allowed to be done. A calculation has then been done on the basis of interest at six per cent per annum for one month on the arrears of Rs. 625/-, which comes roughly to Rs. 3.80 Paise, and the interest on the amount of Rs. 39/- for eleven months at the same rate comes roughly to Rs. 2.70 Paise. Even so there is a short payment of about Rs. 1.10 Paise. So this part of the argument will not help the tenant. The first part of the argument of the learned counsel for the tenant prevails that the requisite amount. out of the excess payment of Rs. 89/- on account of payment of house-tax, must go towards the interest payable to the landlord in the terms of the proviso to section 13(2)(i) of the Act, and when that Is done, the terms of the proviso are complied with, of which the result is that the tenant is not to be evicted.