MAHESH GROVER, J. - (1.) This is revision petition preferred by the tenant against the order dated 6.2.2007 vide which the defence of the petition was ordered to be struck off.
(2.) THE facts of the case are that respondent-landlord preferred a petition for eviction of the petitioner on the ground of non-payment of rent. Upon the petition being instituted on 13.6.2006, notice was issued to the petitioner, which was duly served upon him on 29.8.2006 and he put in appearance before the Court. The learned Rent Controller on that very date itself assessed the provisional rent along with costs and interest and the petitioner was directed to tender the same before the Court on 13.9.2006. On this date the petitioner tendered arrears of rent assessed by the Rent Controller provisionally by way of a cheque and the statement of the petitioner was duly recorded on the said date. The cheque, however, got dishonoured. The petitioner thereafter is said to have got prepared a bank draft on 25.9.2006 and according to him, attempts were made to deposit it with the respondent, who refused to accept it. The respondent promptly moved an application before the Court after receiving the communication of the bank on 30.9.2006 with the remark that the cheque has been dishonoured on account of the fact that it exceeded the arrangement, and prayed that the petitioner be evicted from the premises as he had failed to comply with the order of the Rent Controller dated 29.8.2006. On this application counsel for the petitioner contended that the bona fides of the petitioner to be struck off and fixed the case for recording of the respondent's evidence. Learned counsel for the petitioner contended that the bona fides of the petitioner were apparent from the fact that he had prepared a draft on 25.9.2006 while the application on the basis of which the impugned order has been passed was moved by the landlord on 30.9.2006. He contended that the bona fides of the petitioner could not doubted further in view of the fact that the had also attempted to rectify his mistake by submitting a draft to the respondent which was not accepted by him. It was next contended that in any eventuality the tender of rent could not be defeated as the first date of hearing had yet to come in view of the fact that the apex court has interpreted the first date of hearing to mean the date on which the Court applies its mind to the case i.e. when either the issues are determined or evidence taken and therefore in this view of the matter, when neither the issues have been framed not evidence commended before the Rent Controller, so even if he had failed to pay the rent, as directed in the order dated 29.8.2006, still he would be very well within his rights to submit the arrears of rent on the first date of hearing i.e. the date when the issues are framed or the evidence taken. Reliance was placed on Mangat Singh Trilochan Singh through Mangat Singh (Dead) through LRs and others v. Satpal, 2004(2) RCR(Civil) 1 : 2003(2) RCR(Rent) 567 : (2003)8 Supreme Court Cases 357 and Sham Lal (Dead) by LRs v. Atma Nand Jain Sabha (Regd.), Dal Bazar, 1987(1) RCR(Rent) 181 ; AIR 1987 SC 197.
(3.) ON the other hand, learned counsel for the respondent placed reliance on the judgment of the apex court in Rakesh Wadhawan v. Jagdamba Industrial Corporation, 2002(1) RCR(Rent) 514 : (2000-2)131 PLR 370 and a judgment of this Court in M/s. S. Nihal Singh Motors and others v. Shama Malhotra etc., 2004(2) RCR(Rent) 461 : (2004-3)138 PLR 389. It was contended that this Court in the aforesaid judgment in M/s. S. Nihal Singh Motors and others v. Shama Malhotra etc (supra) had while following the judgment of Rakesh Wadhawan's case (supra) has answered this controversy on almost identical facts. I have heard the learned counsel for the parties.;