J.V. Gupta, J. - (1.) THIS is tenant's petition against whose eviction order has been passed by the authorities below.
(2.) THE ejectment of the tenant was sought from the demised premises primarily on the ground that he has not paid the rent from 1.9.1978 to 31 12.1978 and from 1.1.1979 to 30.9.1979. It was further alleged that for the period from 1.9.1978 to 31.12.1978 the rent was being claimed at the rate of Rs. 18/ - per month and for the subsequent period at the rate of Rs. 36/ - per month. The ejectment application was filed on 24th September, 1979. Surprisingly enough the tenant could not be served for about a year and he appeared for he first time on 3rd November, 1980. On that date in the presence of the counsel for the parties the case was adjourned to 12th November. 1980 for tender of the arrears of rent. Again on 12th November, 1980 in the presence of the counsel for the parties, the case was adjourned to 17th November, 1980 for tender, On 17th November, 1980 the counsel for the landlady -Petitioner was present but no one appeared on behalf of the tenant -Respondent Consequently, the case was adjourned for the ex -parte evidence of the landlady for 10th February, 1981. An application for setting aside the ex -parte proceedings was filed on 26th November, 1980 which was allowed on 23rd February, 1981. The learned Rent Controller found that the rate of rent of the premises in dispute was Rs. 36/ - per month for the subsequent period and since the rent at this rate was not tendered, he ordered eviction of the tenant on the ground of non -payment of the rent. In appeal the Appellate Authority came to the conclusion that the rent was only Rs. 18/ -per month throughout and not Rs. 36/ -from 1.1.1979 as claimed by the landlady. At the same time it was also observed "that the tenant was duly served and Shri R. N. Sharma, Advocate, appeared on his behalf before the Rent Controller. Therefore, in this case, the first date of hearing will be 3rd of November, 1980 and not 23.2.1981 when the ex -parte proceedings were set aside. Had there been no valid service and had none appeared on behalf of the tenant before the Rent Controller prior to the date when ex -parte proceedings were ordered, in that event the first date of hearing in this case would have been 23.2.1981, the date on which the ex -parte proceedings were set aside. It appears that on 17.11.1980 the tenant and his counsel purposely did not appear and that was the last but one date for tender of rent according to law. Since the arrears of rent in this case were not tendered within the statutory period of 15 days the tenant is liable to be evicted on the ground of non - payment of rent" Dissatisfied with the same the tenant has filed this petition in this Court. Learned Counsel for the tenant submitted that the first date of hearing will be when the ex -parte order was set aside on 23rd February, 1981. Moreover according the learned Counsel it was on that day, i.e. 23rd February, 1981 that the costs of the case was assessed at Rs. 25/ -and the interest was assessed at Rs. 25/ -. Thus according to the learned Counsel the rent tendered on that day at the rate of Rs. 18/ - per month alongwith, the interest and costs was a valid tender In support of his contention be referred to Sita Ram v. Shakuntla Devi, 1982 C.L. J. (C&Cr.) 290. He also. referred to the Supreme Court judgment reported in Ved Parkash, Wadhwa V. Vishwa Mohan, 1980 C L. J. (Civil) 357 to contend that the first hearing of the suit could not be earlier than the date fixed for preliminary examination. On the other hand, the learned Counsel for the Respondent -landlady cited Mohan Singh v. Dian Nath, (1983) 85 P.L.R. 554.
(3.) AFTER hearing the learned Counsel for the parties and on going through the case law cited at the Bar, I do not find any. merit in this petition. According to the Haryana Urban (Control of Rent and Eviction) Act the rent could be deposited within a period of fifteen days, of the first hearing of the application for ejectment after due service. The relevant provisions of the Act reads as under Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the Controller, at eight per centum per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. Provided further the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately proceeding the date of application under provisions of this Act. Admittedly 3rd November, 1980 was the first date of hearing after due service when the counsel for the tenant appeared before the Rent Controller. The case was adjourned for tender of the arrears of rent to 12th November, 1980. On that date again in the presence of the counsel for the parties the case was adjourned for tender to 17th November, 1980 when the tenant absented himself. Surprisingly enough that an application for setting aside ex parte order was filed on 26th November, 1980 but no arrears of rent were tendered on that day though a period of 15 days had already expired. The plea of the tenant that he could tender the arrears of rent after the ex -parte order was set aside on 23rd February, 1981 is not tenable. As regards the facts of the present case it was not a case where the tenant was proceeded ex -parte on the very first date of hearing. The tenant appeared on two dates earlier. The earlier conduct of the tenant has also become relevant when he could not be served for about a year. On those two dates also no arrears of rent were tendered. Thus the authorities relied upon by the learned Counsel for the Petitioner are clearly distinguishable and have no bearing on the facts of the present case.;