KISHOREI LAL PREM NATH Vs. KANWAR LAL

JUDGEMENT

(1.) This is tenant's petition against whom eviction order has been passed by both the authorities below. The landlord Kanwar Lal and others sought the ejectment of their tenant M/s. Kishorei Lal Prem Nath from the shop in dispute situated in Grain Market, Moga Mandi on the ground that the tenant was in arrears of rent since 1.10.1974. The ejectment application was filed on 29.11.1978. In the ejectment application, the landlord did not mention the rate of rent which according to him the tenant was in arrears thereof. The stand taken was that the tenant has misused the property and impaired its utility and thus it ha become unsafe for human habitation. On 19.11.1979 which was the first date of hearing, the tenant tendered arrears of rent for the period 1.10.1974 to 31.1.1979 @ Rs. 11.40 per month along with interest and cost. The tenant also made a statement at that time that he was tendering the rent in the light of High Court order dated 22.12.1978 whereby operation of the order of the appellate authority fixing the fair rent @ Rs. 567/- per annum was stayed. The landlord received the tender under protest as it was not valid.

(2.) It is a long standing dispute between the parties. Earlier the tenant moved an application for fixing of fair rent but the learned Rent Controller allowed this application vide order dated 6.11.1974, copy Exhibit A. 4, fixing the fair rent @ of Rs. 11.40 per month which was to be paid from the date of the order that is 6.11.1974. Earlier the agreed rent between the parties was Rs. 850/- per annum. In appeal the appellate authority enhanced the fair rent to Rs. 567/- per annum but the operation of the said order was stayed by the High Court, as stated earlier. The High Court, later on, vacated the said ex parte order on 22.3.1979 happened to be a holiday. Thus, on 24.3.1979, the tenant had tendered the rent of Rs. 3,661/-. The said rent was for the period from 1.10.1974 to 31.1.1979. Rent @ Rs. 850/- per annum was agreed between the parties in the High Court. The learned Rent Controller found that the rent for the period from 1.10.1974 to 5.11.1974 was to be paid @ Rs. 850/- per annum and since the tenant had tendered the rent for the said period @ Rs. 11.40 per month, the tender was short. On this ground eviction order was passed. However, the other ground taken by the tenant was negatived. In appeal, the learned appellate authority maintained the said finding of the Rent Controller and thus maintained the eviction order.

(3.) The learned counsel for the petitioner submitted that of course the tenant had earlier paid the rent from 1.10.1974 @ Rs. 11.40 per month as determined by the Rent Controller in view of the stay order granted by the High Court but when the stay order was vacated he paid the rent @ Rs. 850/- per annum from 1.10.1974 in 1974, to 24.3.1979. According to the learned counsel the issues were not framed as yet which according to the learned counsel were framed on 8.1.1980. Thus, he contended that in view of the judgment of Supreme Court in Mohd Salimuddin v. Misri Lal, 1986 AIR(SC) 1019, and Sham Lal v. Atma Nand Jain Sabha (Regd.), 1987 91 PunLR 1(S.C.) the first date of hearing would be when the court applied its mind at the time of framing of the issues. Thus, according to the learned counsel, the tender made on 24.3.1979 @ Rs. 850/- per annum was valid. The view taken by the authorities in this behalf was wholly wrong and illegal.