R.L.ANAND,J - (1.) THIS is a civil revision and has been directed against the order dated 12.1.2001 passed by the Rent Controller, Narnaul, who dismissed the application of the petitioner under Order 9 Rule 13 CPC by holding that the same was not legally maintainable for the following reasons as given in paras 8 and 9 of the impugned order :- "8. At the outset, the learned counsel for the respondents has challenged the maintainability of the present application on the ground that the applicant has not expressed his willingness to tender the arrears of rent. In this connection, the learned counsel for the respondents has referred the court to the rulings cited as Jagdish Chand v. Ved Parkash Puri, 1995(2) RCR(Rent) 133 (P&H) : (1995-3)111 P.L.R. 217; Harbans Singh v. Mool Chand, 1990(2) RCR(Rent) 533 (P&H) : 1990 HRR 622, and M/s Nand Lal Chiranji Lal v. Smt. Krishana Devi, 1990(1) RCR(Rent) 31 (P&H) : 1989 SLJ 984. In the above-said cases Hon'ble High Court of Punjab and Haryana has held that where the tenant fails to express his willingness to tender the arrears of rent while moving an application under Order 9, Rule 13 for setting aside an ex- parte ejectment order, then such application under Order 9, Rule 13 of CPC cannot be allowed by the court. In the instant case, the applicant has failed to express any such willingness to tender the arrears of rent in his application under Order 9, Rule 13 of CPC. That being so, in view of the law laid down by the Hon'ble High Court of Punjab and Haryana in the above- said rulings, it is clear that the present application under Order 9 Rule 13 of CPC by the applicant cannot be allowed. 9. However, in this connection, the learned counsel for the applicant has referred to the rulings cited as Satyanarain v. Rohit, (2000-1)124 P.L.R. 677 and to Rattan Singh v. Sardul Singh, (2000-1)124 P.L.R. 849 in support of his argument that there was an irregularity in the service of applicant and, therefore, the ex-parte proceedings qua the applicant should be set aside. However, the applicant could have derived any advantage out of the above-said rulings only in case this court was in a position to grant the necessary relief to the applicant. In view of the specific law laid down by the Hon'ble High Court of Punjab and Haryana in Jagdish Chand's case (supra), Harbans Singh's case (supra) and in M/s Nand Lal Chiranji Lal's case (supra), this court is not competent to grant any relief in this case as discussed in the foregoing paragraphs. Accordingly, the rulings cited by the learned counsel for the applicant are of no help to the applicant."
(2.) THE learned counsel for the petitioners submits that it is not the requirement of the law either under Order 9 Rule 13 CPC or in the Rent Restriction Act that a tenant must deposit the arrears of rent claimed by the landlord. In these circumstances, the learned counsel for the petitioners submits that the impugned order is liable to be set aside. On the contrary, learned counsel for the respondents relied upon various judgments. These judgments incidentally have also been relied upon by the Rent Controller in the impugned order dated 12.1.2001.
(3.) I have also the occasion to go through these judgments independently and in my opinion the judgments passed by the Hon'ble Single Judge may not be acted upon by me. Even the ratio of these judgments would show that the Rent Controller has to give the finding on question of fact whether the tenant had the capacity to pay the rent or not. No finding has been given by the Rent Controller. The fact is that in the execution proceedings the tenant has deposited the rent as claimed by the landlord. In these circumstances, the impugned order dated 12.1.2001 is hereby set aside with the directions to the Rent Controller to restore the application under Order 9 Rule 13 CPC to its original number and give specific finding with regard to issues No. 1 and 2. Issue No. 3, is however, decided against the decree-holders.;