Project

On
Rent Law

Topic: - Eviction on grounds of non payment

of rent

Submitted To: - Submitted By: -

 ACKNOWLEDGMENT

I would like to express my special gratitude towards my respected Teacher

Mrs. who gave me the opportunity to do this wonderful project , which helped

me in doing Research and I came to know about so many things. I am really

Thankful to her.

Secondly I would also like to thank my family and friends who helped me a lot

in completing the project.

In the end I would like to thank all other people who directly or indirectly

assisted me to accomplish this project work.

 Introduction
Section 13 of the Act now after the Supreme Court decision in Harbilas Rai Bansal
Vs. State of Punjab (1996-1)112 P.L.R 227 (S.C.), AIR 1996 S.C. 857 reads:

13. Eviction of Tenant: (1) A tenant in possession of a building or rented land shall not
be evicted therefrom in execution of a decree passed before or after the
commencement of this Act or otherwise and whether before or after the termination of
the tenancy, except in accordance with the provisions of this section, (or in pursuance of
an order made under section 13 of the Punjab Urban Rent Restriction Act, 1947, as
subsequently amended).

(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction
in that behalf. If the Controller, after giving the tenant a reasonable opportunity of
showing cause against the application, is satisfied:

(i) that the tenant has not paid or tendered the rent due by him in respect of the
building or rented land within fifteen days after the expiry of the time fixed in the
agreement of tenancy with his landlord or in the absence of any such agreement by the
last day of the month next following that for which, the rent is payable:

Provided that if the tenant on the first hearing of the application for ejectment
after due service pays or tenders the arrears of rent and interest at six per cent per
annum on such arrears together with the cost of application assessed by the Controller,
the tenant shall be deemed to have duly paid or tendered the rent within the time
aforesaid.

(ii) that the tenant has after the commencement of this Act without the written
consent of the landlord

(a) transferred his right under the lease or sublet the entire building or rented land
or any portion thereof; or

(b) used the building or rented land for a purpose other than that for which it was
leased, or
(iii) that the tenant has committed such acts as are likely to impair materially the
value or utility of the building or rented land, or

(iv) that the tenant has been guilty of such acts and conduct as are a nuisance to the
occupiers of buildings in the neighbourhood, or

(v) that where the building is situated in a place other than a hill-station, the tenant
has ceased to occupy the building for a continuous period of four months without
reasonable clause,

The Controller may make an order directing the tenant to put the landlord in
possession of the building or rented land and if the Controller is not so satisfied he shall
make an order rejecting the application:

Provided that the Controller may give the tenant a reasonable time for putting
the landlord in possession of the building or rented land and may extend such time so as
not to exceed three months in the aggregate.

3(a) A landlord may apply to the Controller for an order directing the tenant to put the
landlord in possession:

(i) in the case of a residential or scheduled building, if -

(a) he requires it for his own occupation;

(b) he is not occupying another residential or scheduled building, as the case may
be in the urban area concerned; and

(c) he has not vacated such a building without sufficient cause after the
commencement of this Act, in the said urban area;

(d) It was let to the tenant for use as residence by reason of his being in the service
or employment of the landlord, and the tenant has ceased, whether before or after the
commencement of this act, to be in such service or employment:

Provided that where the tenant is a workman who has been discharged or
dismissed by the landlord from his service or employment in contravention of the
provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evicted until
the competent authority under that Act confirms the order of discharge or dismissal
made against him by the landlord.

“(i-a) in the case of a residential building, if the landlord is a member of the armed
forces of the Union of India and requires it for the occupation of his family and if he
produces a certificate of the prescribed authority, referred to in section 7 of the Indian
Soldiers (Litigation) Act, 1925, that he is serving under special conditions within the
meaning of section 3 of that Act..

Explanation — For the purpose of this sub paragraph

1. the certificate of the prescribed authority shall be conclusive evidence that the
landlord is serving under special conditions; and

2. “family” means such relations of the landlord as ordinarily live with him and are
dependent upon him.

(ii) In the case of non residential building or rented land, if —

(a) he requires it for his own use;

(b) he is not occupying in the urban area Concerned for the purpose of his
business any other such building or rented land as the case may be; and

(c) he has not vacated such a building or rented land without sufficient cause
after the commencement of this Act, in the urban area concerned;

(iii) in the case of any building, or rented land, if he requires it to carry out any
building work at the instance of the Government or local authority or any Improvement
Trust under some improvement or development scheme or if it has become unsafe or
unfit for human habitation;

(iv) in the case of any building, if he requires it for use as an office, or consulting
room by his son who intends to start practice as a lawyer or as a “registered practioner”
within the meaning of that expression as used in the Punjab Medical Registration Act,
1916, or for the residence of his son who is married, if —

(a) his son as aforesaid is not occupying in the urban area concerned any other
building for use as office, consulting room or residence, as the case may be; and
 (b) his son as aforesaid has not vacated such a building without sufficient
cause after the commencement of this Act, in the urban Area concerned:

Provided that where the tenancy is for a specified period agreed upon between
the landlord and the tenant, the landlord shall not, except under sub-paragraph be
entitled to apply under this sub-section before the expiry of such period:

Provided further that where the landlord has obtained possession of a residential,
a scheduled or non residential building or rented land under the provisions of sub-
paragraph (i) or sub-paragraph (ii) he shall not be entitled to apply again under the said
sub-paragraphs for the possession of any other building of the same class or rented
land:

Provided further that where a landlord has obtained possession of any building
under the provisions of sub-paragraph (iv) he shall not be entitled to apply again under
the said sub-paragraph for the possession of any other building for the use of, or as the
case may be, for the residence of the same son.

(b) The Controller shall, if he is satisfied that the claim of the landlord is bonafide
make an order directing the tenant to put the landlord in possession of the building or
rented land on such date as may be specified by the Controller and if the Controller is
not so satisfied, he shall make an order rejecting the application: Provided that the
Controller may give the tenant a reasonable time for putting the landlord in possession
of the building or rented land and may extend such time so as not to exceed three
months in the aggregate.

(c) Where an application is made under sub-paragraph (i-a) of paragraph (a), it shall
be disposed of, as for as may be, within a period of one month and if -the claim of the
landlord is accepted, the Controller shall make an order directing the tenant to put the
landlord in possession of the building on a date to be specified in the order and such
date shall not be later than fifteen days from the date of the order.

(4) Where a landlord who has obtained possession of a building or rented land in
pursuance of an order under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of
sub-section (3) does not himself occupy it or, if possession was obtained by him for his
family in pursuance of an order under sub-paragraph (ia) of paragraph (a) of sub-section
(3), his family does not occupy the residential building, or if possession was obtained by
him on behalf of his son in pursuance of an order under sub-paragraph (iv) of paragraph
(a) of sub-section (3), his son does not occupy it for the purpose for which possession
was obtained, for a continuous period of twelve months from the date of obtaining
possession or where a landlord who has obtained possession of a building under sub-
paragraph. (iii) of the aforesaid paragraph (a) puts that building to any use or lets it out
to any tenant other-than the tenant evicted from it, the tenant who has been evicted
may apply to the Controller for an order directing that he shall be restored to possession
of such building or rented land and the Controller shall make an order accordingly.

(5) Where the Controller is satisfied that any application made by a landlord for the
eviction of a tenant is frivolous or vexatious, the controller may direct that
compensation not exceeding one hundred rupees be paid by such landlord to the
tenant.

Eviction of the Tenant

The Preamble of the East Punjab Urban Rent Restriction Act of 1949 reads:

An Act to restrict the increase of rent of certain premises situated within the
limits of urban area, and the eviction of tenants therefrom.

The main object of the Act, as given in the Preamble, is to check the arbitrary
increase of rent and eviction of the tenant by the landlord. Similar aims are mentioned
in various Rent Control Acts operative in other parts of the country but these goals can
be achieved only when the Act becomes applicable to an urban property. Section 3 of
the Act empowers the State Government to exempt any building or rented land in an
urban area from the operation of the Act. In exercise of the power under Section 3 of
the Act, the Governor of East Punjab had exempted all ‘crown property’ from the
provisions of the Act in 1949. All buildings and rented lands belonging to Municipal
Committees, District Boards and Panchayats were also exempted from the provisions of
the Act in 1959.

With the object of encouraging construction of new buildings, an exemption from

the application of the Act for the first five years of new constructions was granted from
time to time in Punjab. This exemption is commonly known as rent holiday. This ‘rent
holiday' primarily aimed to attract investment in housing by providing incentives to the
moneyed class. In Chandigarh, exemption from the applicability of Rent Act is provided
to all new buildings for the first five years counted from the date of the grant of
sewerage connection. Subsequently, it was recognised by the Chandigarh
Administration that there are certain buildings like booths (small service shops) where
there is no provision for a sewerage connection. It was also noticed that in the case of
additional construction on an already existing building, there was no need of a separate
sewerage connection for the newly constructed part.

Quit Notice Under T.P. Act.

There was a controversy as to whether for seeking eviction of a tenant under

Section 13 of the Act, a notice under Section 106 of the T.P. Act was a prerequisite or
not. Landlord-tenant relationships are governed by the T.P.Act whenever the Rent Act is
not applicable. Section 106 of the T.P.Act applies to such cases where the parties either
do not stipulate the duration of the lease in the lease deed or after the expiry of the
stipulated period, the landlord-tenant relationship continues without the renewal or
grant of a fresh lease. To determine the duration of the lease, Section 106 provides that
if the lease of immoveable property has been made either for agricultural or
manufacturing purpose it will be deemed to be an yearly tenancy and terminable with a
valid notice of six months. If the lease of immoveable property has been granted for any
other purpose, it will be deemed to be a monthly tenancy terminable with a valid notice
of fifteen days. The notice prescribed under section 106 of the T.P.Act, must be given in
such a manner that the period of six months or fifteen days expires with the end of the
year or the month respectively. Once the tenancies covered under the T.P.Act began to
be governed by the provisions of the Rent Act, the question arose as to whether
landlord seeking eviction of a statutory tenant under Section 13 was still required to.
serve a valid notice on the tenant under Section 106 of the T.P.Act.

A Full Bench of the Punjab and Haryana High Court in the case of Bhaiya Ram
Hargolal Vs. Mahavir Parsad, (1968)70 P.L.R. 1011 (F.B.) = AIR 1969 P&H 110 (FB),
considered the question at length in view of two conflicting Division Bench decisions
and held that an application for the ejectment of a tenant under Section 13 of the Rent
Act cannot succeed without the contractual tenancy being first-determined by a notice
under Section 106 of the T.P.Act. The Full Bench further held that want of a notice under
Section 106 of the T.P.Act continues to be a good defence despite the enforcement of
the Rent Act in every case in which such a defence would have been available under the
general law of the State if the Rent Act had not been enacted because the Rent Act has
not impliedly repealed or abrogated Section 106 of the T.P.Act.

No-obstente Clause

Section 13(1) of the Act provides for the protective umbrella to a tenant against
an arbitrary eviction at the instance of the landlord. Section 13(1) lays down that a
tenant shall not be evicted from the premises in possession except in accordance with
the provisions laid in Section 13. The expression “in execution of a decree passed before
or after the commencement of this Act” had to be incorporated in Section 13(1) in view
of the decrees which might have been passed under the 1947 Act. If this expression
which was necessary at the time of commencement of the Act is taken out from the
provision then it would read as : "A tenant in possession of a building or rented land
shall not be evicted therefrom, whether before or after the termination of the tenancy,
except in accordance with the provisions of this section.”

The use of the expression “except in accordance with the provisions of this
section” gives section 13 of the Act an overriding effect in relation to any agreement or
law to the contrary This is what makes section 13(1) to be the 'non-obstente’ clause. The
term 'non-obstente’, which means 'notwithstanding’, can safely be used in respect of
section 13(1). Thus after the coming into force of the Act in 1949 all existing and future
tenancies of properties in urban areas, except those which were exempted under
section 3 of the Act, came within the purview of the. Act. Section 13(1) puts a complete
embargo on the eviction of a tenant except when a tenant is liable for eviction on any of
the grounds listed in sub-sections (2) and (3) of section 13. However, if a suit has been
filed for the ejectment of the tenant under T.P.Act before the Rent Act becomes
applicable to the building. It will be decided under the T.P.Act. It will not make any
difference if the Rent Act becomes applicable to the building during the pendency of the
ejectment suit.

In Sawan Ram Vs. Gobinda Ram, (1980)82 P.L.R. 271 (F.B.) = 1980 (2) RCJ 62 P&H
(FB) it was held that the Act covered the field to the total exclusion of all other laws. “It
excluded on the substantive aspect the general law of the tenant-landlord relationship
and on the procedural aspect barred the forum of the ordinary run of the Civil Courts”.
In the case of Murali Dhar Aggarwal Vs. Ram Agyan Singh a clause in the lease deed
read:

that this agreement of lease has been made between the parties with the knowledge of
the existing Rent Control and Eviction Acts. The parties do hereby agree and declare that
no party will ever claim the benefit of the said Acts and that the provisions of the said
Acts have been agreed by mutual consent to be inapplicable to this deed.

From the above discussion the following points emerge:-

(i) that section 13(1) contains in it the non obstente clause;

(ii) that once the Act is applicable to a tenancy, the tenant acquires the status of a
protected statutory tenant.

(iii) that the tenant becomes a statutory tenant irrespective of the fact as to whether
the period of lease settled by the parties has expired or not;

(iv) a statutory tenant cannot be evicted except in accordance with the provisions of
section 13;

(v) the Civil Courts have no jurisdiction to entertain eviction petitions under the Act.

Due Process Clause

A landlord cannot evict his tenant without having recourse to the Controller.
Section 13(2) imposes this restriction on the landlord that even if the tenant is guilty of
such acts or omissions which make him liable for eviction, he cannot himself throw the
tenant out. He must apply to the Controller to seek a direction to the tenant to put the
landlord in possession. After receiving the eviction petition from the landlord, the
Controller will give a reasonable opportunity to the tenant of showing any cause or
defence against the eviction petition. In case the landlord succeeds in establishing that
the tenant is liable for eviction on account of any one of the grounds provided in sub-
sections (2) or (3) of Section 13 then the Controller may make an order directing the
tenant to put the landlord in possession of the building or rented land. In case the
landlord fails to make out a case on any one of the grounds available to him for evicting
his tenant, the Controller shall make an order rejecting the eviction petition. Thus
section 13(2) of the Acts puts a complete embargo on the eviction of the tenant by the
landlord himself. Therefore, Section 13 (2) can be said to be the ‘due process' clause
under the Act.-

Sub-sections 2 and 3 of the Section 13 incorporate eight grounds on which a

landlord may seek the eviction of a tenant. It is proposed that these grounds be taken
up for a detailed consideration in four chapters in the following order:

1. Non-payment of Rent

2. (i) Sub-letting

(ii) Change of User

3. (i) Material alterations and impairing the value of the property.

(ii) Nuisance

(iii) Non-occupancy

(iv) Dilapidation

4. Bonafide Requirement of the landlord

It is also proposed that the provision under Section 13 of the Act relating to the
bonafide need of a landlord serving in the Armed Forces of the country be taken up in a
separate chapter on ‘Specified Landlord’ under section 13-A of the Act.

Eviction: Meaning of

Eviction means ‘to recover property from any one by judicial process’ according
to Murray’s Dictionary. An extract from an early English case has been used in Stroud’s
Judicial Dictionary to say that eviction is not confined to mere compulsion as it was
formerly understood but ‘something of a more permanent character done by the
landlord with the intention of depriving the tenant of the enjoyment of the whole or
part of demised premises. “In its original and technical meaning, it is an expulsion by the
assertion of a paramount title and by process of law; a recovery of land etc. by form of
law; a lawful dispossession by judgement of law and an ouster; an act of the landlord
with the intention and having the effect of depriving the tenant of the enjoyment of the
demised premises. The term is now popularly applied to every class of expulsion" says
Iyer in his Law Lexicon. In Wharton’s Law Lexicon eviction is defined as “dispossession;
also a recovery of land etc. by form of law”.

In Ram Lubhaya Vs. Dhani Ram AIR 1947 Lah. 296, it has been observed that it is
evident that the eviction is not confined in its meaning to the act of expulsion, but may,
in its more modern sense be extended so as to cover the whole process by which
recovery of the property is obtained at law. In Ram Prasad Vs. Mukhtiar Chand (1958)60
P.L.R. 332, it was observed that “evict literally means ‘expel by legal process’. Eviction
consists in the physical act of throwing out the tenant from the building which he is
occupying”. It has further been pointed out in this case that the phrase ‘in accordance
with the provisions of this section’ means in the method or mode provided by this
section, that is, by means of obtaining an order for eviction from the Controller. This
would mean that the eviction shall not take place except when it is in accordance with
the provisions of Section 13. Thus the term eviction, in the context of landlord-tenant
relationship would mean to recover or take back the possession or user of the tenanted
premises by judicial process provided under the Rent Act.

Eviction from Part of Tenanted Premises

When eviction of a tenant is sought by the landlord under any of the grounds
given in Section 13 of the Act, the landlord cannot seek eviction of the tenant from a
part of the tenanted building. An application under section 13 seeking eviction of the
tenant from a part of the building only whereas the tenancy was for the whole building,
has been held to be not maintainable. Panna Lal. Vs. Devjit( 1976)78 P.L.R. 21. On the
contrary, if a building is let out by the landlord to different tenants in parts, a single
application for the eviction from the entire building, has been held to be maintainable in
Govind Ram Vs. Goda Ram, 1979 (2) RCR 255. (See also Paras Ram Vs. Shiv Kumar 1987
(2) RCR 104.)
 Tenant Out of Possession: No Protection under Rent Act

In Baldev Sahai Bangia Vs. RC.Bhasin AIR 1980 Del. 145, the tenant had walked
away from the demised premises with his wife and children and had settled in Canada.
It was held herein that in the circumstances of the case the tenant has no animus
revertendi (intention to take residence in the rented premises) and therefore, the
protection of the Rent Act cannot be extended to others such as mother, brother and
sister as the Act is not intended for their protection to the exclusion of the tenant.

Non-payment of Rent

Whatever may be the other grounds which are invoked for the eviction of the
tenant, non-payment of rent is a ground pleaded by the landlords in more than 90% of
the cases covered by the field survey. The primary obligation of a tenant towards his
landlords is to pay the rent. The term ‘rent’ has not been defined anywhere in the Rent
Act. According to Webster’s Dictionary, the term rent means:‘income from a property; a
pecuniary sum agreed upon between a tenant and his landlord and paid at fixed
intervals by the tenant to the landlord for the use of land or its appendages”.

Section 105 of the T.P. Act defines a transfer in the form of a lease. According to
this provision a lease is a partial transfer for consideration. Under. Section 105, the
consideration for a lease may be in cash or in kind or both. Thus, the lessee must give
consideration to the lessor in lieu of the use of the immoveable property transferred to
him. Since receiving Of premium or fine from the tenant is prohibited, under Section 6
of the Rent Act, the tenant is liable to pay rent only. The reciprocal duty of the tenant
for the transfer of the possession and use of an immoveable property by the landlord is
to pay the rent. The landlord-tenant relationship is governed by the rule of 'pay and
stay’.

Section 13(2)(i) of the Act, providing non-payment of rent as a ground for the
eviction of the tenant, reads:

13(2). A landlord who seeks to evict his tenant shall apply to the controller
for a direction in that behalf. If the controller, after giving the tenant, a reasonable
opportunity of showing cause against the application, is satisfied
 (i) that the tenant has not paid or tendered the rent due by him in respect of the
building or rented land within fifteen days after the expiry of the time fixed in the
agreement of tenancy with his landlord or in the absence of any such agreement by the
last day of the month next following that for which the rent is payable:

Provided that if the tenant on the first hearing of the application for ejectment
after due service pays or tenders his arrears of rent and interest at six per cent per
annum on such arrears together with the cost of the application assessed by the
Controller, the tenant shall be deemed to have duly paid or tendered the rent within the
time aforesaid.

In a landmark decision in the case of Prahlad Singh Vs. Col. Sukhdev Singh, AIR
1987 SC 1145, the Supreme court has held that the decision given by a court at an
earlier stage of a case is binding at a later stage though interlocutory judgements are
open for adjudication by an Appellate Authority. In this case, the landlord had sought
eviction of his tenant on the ground of non-payment of Rent. The tenant made the
complete tender on the first day of hearing. After some time, the tenant abruptly
absented himself from the case. An exparte decree of eviction was passed against the
tenant. The tenant applied for setting aside the exparte order alleging that the landlord
had told him that he was withdrawing the case. The tenant established that the landlord
thereafter received the cheques for rent from him. The tenant claimed that he had
believed the landlord in good faith that he will withdraw the case. The landlord
refrained from entering the witness box. The Rent Controller accepted the case of the
tenant and set aside the ex-parte decree of eviction. After setting aside the ex-parte
decree, the eviction of the tenant was still ordered under the original petition for not
making a full tender. The Appellate Authority in appeal and the High Court in revision
affirmed the ejectment order passed by the Rent Controller. Setting aside the
judgements of all the three courts, the Supreme Court held that once the ex-parte
decree passed in the petition for eviction based on ground of default in payment of rent
was set aside on finding that the landlord had agreed to withdraw the petition and
accepted rent from the tenant, the continuance of the eviction petition thereafter, by
disregarding the finding recorded in the proceedings for setting aside the ex-parte
decree, was illegal. The supreme Court went on to add that the finding that the landlord
had agreed to withdraw the petition and receive the rent from the tenant was a finding
which was binding on the landlord at later stages of proceedings and therefore, the
eviction petition was liable to be dismissed. By this decision, the Apex Court has clarified
the usual confusion noticed in Cases relating to interlocutory orders and final decisions
pertaining to non-payment of rent.

Rent Payable by the Tenant

Under the rule of pay and stay, a tenant must not commit any default with regard
to the rent payable by him to the landlord such payment is to include all permissible
increases in rent as agreed upon by the parties and permitted by law. In Director Health
Services Haryana Vs. Pritam Singh 1993(2) RCR 34 P&H, the rent of the building
occupied by the tenant was increased from Rs. 485/- p.m to Rs. 1375/- per month by
mutual agreement by the parties. It was ruled herein that the rent payable by the
tenant is at the rate of Rs. 1375/ - per month.

However a tenant will not be liable to pay any rent to the landlord for a non
existent building. In Basakhi Ram Halwai Vs. Gobind Kumar Chopra (1996-2)113 P.L.R
492 = 1996 (1) RCR 614 P&H, the tenant was paying Rs. 35/-per month to the landlord.
The landlord and the tenant mutually agreed that the landlord will demolish the building
and re let it to the tenant @ Rs. 200/- per month after reconstruction. The landlord
pulled down the building but did not reconstruct it. The tenant constructed a shed at his
own cost to carry on his business and stopped paying the rent of Rs. 35/- p.m. The High
Court has held that the tenant is not guilty of non-payment of rent as he is not to pay for
a non-existent building. The Court ruled that in fact the landlord has defrauded the
tenant.

In Himachal Pradesh University Shimla Vs. Punjab University, Chandigarh 1996 (2)
RCR 483 SC = AIR 1997 S.C. 88, Panjab University was seeking eviction of the tenant
university on the ground of non-payment of rent. The tenant university claimed that the
assets of the predecessor university stand vested in it under the Himachal University Act
and thus it was under no obligation to pay any rent. The Supreme Court has affirmed
the decision of the High Court to hold that for the building ‘Dingle Estate’, there is no
statutory vesting in the Himachal University. Therefore, it is Iiable to be evicted for non-
payment of rent. In Biswajit Pati Vs. Surani Pati 1997 (1) RCR 108 S.C. (under Orissa Act),
the rent was sent by the tenant to the landlord by money order. The landlord refused
the money order. The Supreme Court has ruled that the tenant need not send the
refused rent every time when he sends the next rent due by money order.
 Delay of Two Days

In Gopal Chandra Ghosh Vs. Smt. Renu Bala Majumdar 1994 (1) RCR 329 S.C.
(W.B.Act), there was two days delay in the deposit of rent by the tenant. The Supreme
Court has ruled that the tenant is not to be thrown out on technical violations. The Rent
Act is a beneficial piece of legislation for the tenant and the Courts should take that view
which will advance the object and the purpose of the Act to protect the tenant. The
Court further said that the technicalities should have no place when the Court is seized
of human problem. Resultantly, setting aside the eviction order, the Supreme court
condoned the delay of two days in depositing the rent by the tenant.

Tenant Must Pay Rent Even When Premises Attached

When the tenanted premises have been attached by the competent authority
for whatever reasons, it does not absolve the tenant from his obligation to pay the rent.
In M/s. Roxy Enterprises Vs. Mrs. Aruna Raina 1993 (2) RCR 626 Del., the rented
premises were attached by the Municipal Corporation of Delhi. The tenant stopped
paying rent to the landlord. He did not pay the rent to the Municipal Corporation also.
The Court ruled that the tenant is liable for eviction on account of non-payment of rent.

Onus on the Tenant to Prove Payment of Rent

Under the rule of ‘pay and stay’, it is the obligation of the tenant not only to pay
the rent without default but also to prove that he has paid the rent as per his agreement
as and when s dispute arises as to whether the rent has been paid for a particular
period. Although the circumstances and the record of each case has to be seen by itself
as to who is to be believed when the tenant claims that he has paid the rent and the
landlord claims that the tenant is in arrears; But the initial responsibility is of the tenant
to prove that he is not a defaulter. In Shiv Charan Vs. Nar Singh (1993-3)105 P.L.R. 612 =
1994 (1) RCR 731 P&H (Hr. Act). The landlord was seeking eviction of the tenant on
account of non-payment of rent from 1972 onwards. The tenant could prove from the
entries in his Bahi (account book) that the rent was regularly paid by him upto 1972. The
tenant claimed that he had paid rent thereafter also regularly but no receipts were
issued by the landlord. Holding that the tenant is liable for eviction on account of non-
payment of rent, the High Court has ruled that the onus to prove the payment of rent is
on the tenant. In this case the statement of the tenant that he had paid full rent was not
believed.

However, Faquir Chand Vs. Bhagwan Dass (1994-3)108 P.L.R. 129= 1994 (2) RCR
303 P&H (Hr. Act), the landlord was claiming arreas of rent @ Rs. 400/- p.m. He had filed
the suit for these arrears after three years. The tenant contended that the rate of ret
was Rs. 200 p.m. and he had paid the rent but had no rent receipts. The High Court
herein ruled that since the landlord did not speak the truth about the rate of rent, he
cannot be believed for the period of length for arrears. Observing that a landlord will
not sit quiet for three years, the landlord’s application was dismissed. It is submitted
that this decision is open to question not only for the reason that the onus to prove the
payment of rent is on the tenant but also in view of the fact that unlike the Punjab Rent
Act, (wherein arrears of rent can be claimed by the landlord for any length of time as
will be subsequently noticed), the Haryana Act specifically provides that a landlord can
claim arrears of rent for three years only. Thus to say that the landlord remained quiet
for three years is no reflection on his conduct as this is what the law has provided for.

Thus the onus to prove payment of rent is on the tenant but he may be able to
do it even without receipts where the conduct of the landlord is such that even an oral
version of the tenant is to be believed.

Tenancy by a Mortgagee and a Mortgage to the Tenant

A mortgagee in possession of the mortgaged property is competent to induct

another person as the tenant in such property. When the owner redeems the mortgage,
the question arises as to whether the tenant will continue as such under the mortgagor
after redemption. The earlier view of some High Courts that it will have to be seen in the
light of Section 76 (a) of the T.P.Act as to whether the tenancy was created in the
ordinary course of management of that property by the mortgagee has been clarified by
the Supreme Court in M/s. Sachamal Paras Ram Vs. Mst. Ratna Bai AIR 1972 SC 637 by
holding that the tenancy created by a mortgagee does not survive the termination of
the mortgagee’s interest in the property. It was observed that the termination of
mortgagee’s interest terminates the relationship of landlord and tenant and the tenant
cannot claim protection under the Rent Control legislation.

However, it may be noted here that if after redeeming the mortgage, the
mortgagor accept the tenant as a tenant under him, the relationship of landlord and
tenant will be there between the redeeming mortgagor and the tenant inducted by the
mortgagee. The position of a tenant inducted by the mortgagee on redemption

(i) The general position of law is that no person can confer on another a better title than
he himself has and hence a mortgagee whose interest lasts only so long as the
mortgagee has not been paid off, cannot as a mortgagee in possession create a right in
the tenant inducted by him to continue in possession beyond the period of redemption,
that is beyond the termination of the mortgagee’s interest. The derivative title from him
must ordinarily come to an end with the termination of the mortgagee’s title.

(ii) Under the general rule mentioned above the mortgagee by creating a tenancy
becomes a lessor of the property but his interest as a lessor is co-terminious with his
mortgage interest and by virtue of the provisions of Section III(c) of the Transfer of
Property Act, 1882, the duration of the mortgagee interest determines his position as
the lessor. The relationship of lessor and lessee cannot subsist beyond the mortgagee’s
interest unless the relationship is agreed to by the mortgagor or a fresh relationship is
created.

(iii) To the above mentioned proposition an exemption is carved out by Section 76 of

the Transfer of Property Act, 1882. Though on the language of Section 76(a) of the
Transfer of Property Act, it is an obligation cast on the mortgagee, it has been held that
an agricultural lease created by the mortgagee would be binding on the mortgagor even
though the mortgage has been redeemed, provided it is. of such a character that a
prudent owner of property would enter into it in the usual course of management. This
exception carved out by Section 76(a) of the Transfer of Property act, has been applied
ordinarily to the management of agricultural lands and has seldom been extended to
urban property so as to tie it up in the hands of lessees or to confer on them rights
under special status.

(iv) When the mortgagor has either in the deed of mortgage or elsewhere stated that
mortgagee with possession may lease the property, such authorisation to the
mortgagee to let out the property to any Other tenant does not amount to any
intention to allow expressly tenancy beyond the term of the mortgage and a tenancy
beyond, the terms of the mortgage with possession under such authorisation cannot
create a tenancy which would enure beyond the term of the mortgage.

(v) Once the mortgagee’s interest terminates, the relationship of landlord and
tenant comes to an end and there being no landlord and no tenant, unless there is
something special in the provisions of the particular Rent Restriction Act so far as, urban
immoveable property is concerned, those provisions could not apply and would not
confer any protection on the tenant inducted by the mortgagee during the subsistence
of the mortgage with possession.

Death of Landlord

After filing an eviction petition against his tenant, if the landlord dies at any
Stage of the case, his legal heirs are to be brought on record. In Pinky Vs. Bimal Kumar
(1995-2)110 P.L.R. 548 = 1994 (1) RCR 311 P&H, the appeal in an eviction petition by the
landlady was with the Appellate Authority. The arguments in the appeal were heard and
concluded and the case was fixed for orders. During this time the landlady died. The
High Court has ruled that the Appellate Authority could not pass an order without
impleading the legal Representatives of the deceased landlord.

First and Second Eviction Petition for Non-payment of Rent

When a landlord files an application for the eviction of the tenant on the ground
of non-payment of rent and the tenant does not pay or deposit the rent then and in
response to a subsequent eviction petition again for non-payment of rent for the
subsequent period filed by the landlord, deposits the entire arrears of rent
accumulatively, the question rose as to whether the composite deposit of arrears is a
valid payment thereof. Overruling the earlier decision of a Division Bench to the
contrary in Rattan. Chand Vs. Jagmohan Singh AIR 1.972 P&H 153 (D.B.), a Full Bench of
the High Court in Kalu Ram Vs. Gonda Mal 1980 P.L.R. 452 (F.B.) = AIR 1980 P&H 140 has
ruled that every application for ejectment on the basis of non-payment of rent has a
separate cause of action and is to be decided as such. If once it is proved that the tenant
has failed to pay the arrears of rent on the first date of hearing in any one ejectment
application, then he is liable to ejectment even if he subsequently pays the arrears in
second ejectment application. The landlord cannot be said to have waived his rights by
filing the second application covering the same period of arrears of rent and by
accepting the same in the second ejectment application.

First Hearing

To save himself from eviction on the ground of non-payment of rent, the tenant,
is required to pay or tender the arrears of rent with interest and costs on the first
hearing of the eviction application after due service has been affected. The expression
first hearing after due service was taken to mean the day on which the tenant puts in his
appearance before the Controller in response to the summons served on him. However,
in case of an ex-parte order against the tenant, the day on which the ex-parte order is
set aside at the instance of the tenant is to be taken as the day of ‘first hearing’.

Since the case of Parag Narain Vs. Brij Lal, the Punjab High Court had consistently
held that the expression ‘first hearing’ connotes the first date after service of summons
when the tenant appears in the court in person or through a counsel. A five Judge Bench
of the High Court, in the case of Vinod Kumar Vs. Harbans Singh Azad, (1977)79 P.L.R.
144 = AIR 1977 P&H 629 (FB), reaffirmed the above view taken in its earlier decisions. In
this case, an ex-parte order of eviction was passed against the tenant by the Rent
Controller. One of the grounds for the order was non-payment of rent for thirteen
months. The tenant moved the Rent Controller for setting aside the ex-parte order and
the same was set aside on 18.12.1967. The date fixed for next hearing of the case was
30.1.1968. The tenant did not tender the arrears of rent on 18.12.1967. On the next
date of hearing, that is 30.1.1968, the tender was made by the tenant. On the question
of the validity of the tender, the Rent Controller held that since the arrears were not
tendered on the day when ex-parte order against the tenant was set aside, subsequent
deposit of arrears is not the deposit made on the date of ‘first hearing'. The appellate
Authority, on appeal, reversed this ruling of the Rent Controller. The Full Bench agreed
with ruling of the rent Controller that the day of ‘first hearing’ in the present case was
18.12.1967 and since the tenant did not make the tender on that day, he was liable for
eviction.

Surinder Singh J (as he then was delivering the judgement of the Full Bench observed:
At the time when the tenant approached the Rent Controller with an application for
setting aside the ex-parte order, he was obviously aware of the filing of the ejectment
application against him and its disposal on an earlier date, though ex-parte. If he was
desirous of taking the benefit available to a tenant under the Rent Act, he should have
tendered the arrears etc. on the very day when the proceedings were restored. There is
nothing on the record to show that he made any such attempt on December 18, 1967.
Indeed the tenant may have been heard to plead in this behalf if on that date he had
done his duty to tender the rent and other charges before the Rent controller but the
needful had not been done by the Controller in spite of request. The statutory benefit
available to the tenant under the proviso to S.13(2)(i) has a limited scope in that the
same affords a convenient last minute escape from the rigorous of litigation. “The first
date of hearing” cannot be extend merely by a process of reasoning as adopted by the
Appellate authority, whose finding of the point is, therefore, reversed.

In the first place, the comparison of the provisions of the U.P.Act and the Punjab
Act, as reproduced above, shows that the expression used in the U.P.Act is “at the first
hearing of the suit" while in the Punjab Act the expression “first hearing” is coupled with
the use of the expression “after due service”. This expression “after due service” is
completely missing from the provisions under the U.P.Act. Under the Punjab Act, after
the service of summons on the tenant, the next date obviously is the date of first
hearing. Thus, the Apex court while holding the two provisions as pari materia did not
take into account that the expression after due service’ is not synonymous to the term
'suit’. Whereas under the U.P.Act, it is a civil suit which is to be filed by the landlord
thereby implying the application of C.P.C., the Punjab Act rules out applicability of C.P.C.
to proceedings under the Rent Act and that is why the term used is application for
ejectment and not a suit.

In the second place, the Apex court found fault with the Rent Controller for not
assessing the costs of the application on 26.6.1969 when it observed:

It is also pertinent to note that on the returnable day, i.e. 26.6.1969 the Rent
Controller did not make any order assessing the costs of the application which was
required to be deposited along with arrears of rent and interest at 6 per cent per annum
on such arrears. It is on 2.7.1969, the Rent Controller assessed the cost of the
application and the tenant appellant deposited the arrears of rent upto date...
No doubt, it is the duty of the Rent Controller, to assess the costs of the application and
unless such an assessment is made by him the arrears of rent cannot be deposited. But
the Controller is not to assess the costs suo moto. It is only when the tenant expresses
his desire to deposit the arrears and makes a request to the Controller for assessing the
costs, the Controller will act. If a tenant is in no mood to pay any arrears of rent, the
Controller is not supposed to harp on assessing the costs of the application. In the
present case, the tenant did not make arty offer for making a tender. He simply
requested for another date to file the written statement which was granted. It was not
even an adjournment as no costs were paid by the tenant to the landlord. On the next
date when the tenant wanted to tender the arrears of rent, the Controller did assess the
costs of the application. Thus, it was wrong to blame the Controller for not assessing the
costs of the application on 26.6.1969.

Thirdly, the Apex Court did not take cognizance of‘the practice’ of the High
Court, since 1952, consistently holding the ‘first hearing’ to be after the return of
summons. While Drawing complete support from Ved Parkash Vadhwa’s case, the Apex
Court did not notice that one of the reasons for the conclusion of that judgement was
that it is not advisable to upset the consistent view of the High Court in matters of state
statute unless it is ‘revoltingly wrong*. Had this test been applied in the present case,
then the consistent view of the High Court including the Five Judge Bench decision in
Vinod Kumar Vs. Harbans Singh Azad is likely to have got the nod from the Apex Court.

Lastly, in practical terms, if the view of the High Court could be considered as
harsh on the tenant, the view of the Apex Court has turned out to be harsher in the case
of the landlord. As a consequence of this decision, the plight of the landlord for
recovering what he is entitled to get from his tenant has become far more difficult.
There is no limit to the number of defaults a tenant can make under the Punjab Act.
Every time the landlord is made to recover his arrears through the Controller. It takes
one to two years’ time to reach the stage of framing the issues which is the ‘first
hearing’ according to this decision. This long delay is usually ensured by obtaining two to
three adjournments (of three months each) on one or the other pretext by paying costs
(which normally do not exceed Rs. 100/-), and by obtaining time to file the written
statement. Thus the decision of the Apex Court has become handy for the unscrupulous
amongst the tenants to deny the landlord his due rent for a period of another two years.
There is an urgent need to strike a fair balance between the two extremes namely, the
tenant being forced to rush to the Court with his money bag and the landlord being at
the mercy of the scheming tenant to recover the rent. A way out could be that the
tenant shall be given fifteen days time from the date of his appearance in response to
the summons from the Controller for paying the arrears of rent.

Provision for First Hearing Deposit not Violative of Article 14

In Priyavarte Mehta Vs. Amrendu Banerjee AIR 1997 Pat. 114 (F.B.), a full bench
of Patna High Court has ruled that the provision under the Bihar Act empowering the
Court to direct the tenant to deposit rent is not violative of Article 14 of the
Constitution. Since the Bihar Act permits the landlord to claim arrears for three years,
the order of the court to the tenant to pay arrears or move out is not discriminatory.

Calculation of Arrears

It is not the duty of the Controller to calculate the arrears of rent at the time of
first hearing deposit. His only duty is that if the tenant wants to make a tender whether
full or in part, whether under protest or otherwise then he will assess only the costs to
be paid to the landlord and pass an order to that effect (Dial Chand Vs. Mahant Chand
Kapoor (1967)69 P.L.R. 248). It is the responsibility of the tenant that he calculates and
pays the arrears and the interest thereon at the rate of 6% per annum.

Valid Tender

The tenant’s obligation to pay or tender the arrears of rent thus practically
amounts to making cash down payment of the total amount inclusive of the interest on
the arrears at the rate of 6 per cent per annum, and the costs of the landlords’s petition
as assessed by the Controller.

The word ‘Tender’ would mean the actual production and showing the money to
the person to whom it is to be paid accompanied by the willingness to hand over the
same. A mere offer to pay does not constitute a valid tender. The law requires that the
tenderer has the money present and ready and he produces and actually offers to the
other party. In Kali Charan Vs. Ravi Dutt (1957)59 P.L.R. 204 it was observed that the law
insists upon an actual, present physical offer. It is not satisfied by a mere spoken offer to
pay, which although indicative to present possession of money and intention to
produce, is unaccompanied by any visible manifestation of intention to make the offer
good. Thus to constitute a valid tender, it is not only the physical carrying of money but
also actually offered to the other party. (Kaushalaya Devi Vs. Major Dhani Ram 1973 RCJ
534) The stage for making the first hearing tender is quite risky and slippery from the
tenant’s point of view. The tenant has one of the three options open to him, namely to
pay the arrears as claimed by the landlord or to pay as much of it as he holds to be due
or to claim that the rent has already been paid. In exercising the latter two options, the
tenant must be on a firm footing to establish that either there are no arrears of rent due
or whatever he considers to be due is correct. After taking a specific position in the
written statement, it is for the tenant to prove the same or face the consequence of
eviction. In the course of field survey, it was found that unless a tenant has clear
documentary proof to vindicate his stand, his lawyer advises him to pay the arrears as
demanded by the landlord on the first hearing under protest and then contest the
landlord' claim.

In the case of Meja Singh Vs. Karam Singh, (1981)83 P.L.R. 387 = 1981 (2) RCJ 347
P&H (DB), the Rent Controller signed the deposit-challan to pay the arrears of rent on
the same day when exparte order of eviction was set aside at the instance of the tenant.
Due to the necessary formalities, the arrears of rent were accepted in the treasury on
the third day. The validity of this tender being challenged by the landlord, a Division
Bench of the Punjab and Haryana High Court has held that the tender made by the
tenant was valid.

In the case of Tarlok Chand Vs. Swarn Kaur, the landlady claimed arrears of rent
at the rate of Rs. 350/- p.m. The tenant claimed that the rent was Rs. 40/- p.m. and
deposited the arrears at that rate. Ultimately it was found that the rate of rent was Rs.
60/- per month. Upholding the eviction of the tenant, it was held by the High Court that
the wrong claim by the landlady will not render invalid tender to be valid one.

From the above case law, it emerges that a landlord invites no penalty even
when his claim for rent is ultimately found to be wrong. But on the other hand, tenant
who takes a chance with the claim made by the landlord runs the obvious sk of being
evicted from the premises. To strike a balance, a landlord making false claim or a tenant
falsely denying the claim of the landlord must face penal consequences of imprisonment
upto six months. The measure, it is hoped, will work as a deterrent on the fraudulent
claims or denials by the landlord and the tenant respectively.

Deposit of Arrears of Rent Under the Punjab Relief of Indebtedness Act

A controversy had persisted for a long time as to whether the deposit of arrears
of rent made by the tenant under section 31 of the Punjab Relief of Indebtedness Act,
1934, constituted a valid tender under section 13 of the Rent Act.

Section 31 of the Punjab indebtedness Act reads:

31. Deposit, in Court—- (1) Any person who owes money may at anytime deposit in
court a sum of money in full or part payment to his creditor.

(2) The Court on receipt of such deposit shall give notice thereof to the creditor and
shall, on his application, pay the sum to him.

(3) From the date of such deposit interest shall cease to run on the sum so
deposited.

The Punjab Indebtedness Act had been introduced with a view to provide relief
to the debtors from exploitation by their creditors who refused to accept the repayment
of loans advanced by them. Section 31 of this Act provided that a debtor could deposit
in court the amount due to him and interest would cease to run on the deposited
amount from that date. This deposit was to be made in the court of Sub-Judge, First
Class, who was also the designated court of the Controller under the Rent Act:

In some cases, the tender of arrears of rent was made by the tenants under
section 31 of the Punjab Indebtedness Act. The landlords questioned the validity of such
a deposit on the ground that it was not a valid tender under section 13 of the Rent Act.

A Division Bench of the Punjab High Court in the case of Mam Chand Vs. Chottu
Ram had held that the deposit made by a tenant, under section 31 of the Punjab
Indebtedness Act, was a valid tender of the arrears of rent so as to attract the
protection against eviction under the proviso to Section 13(2)(i) of the Act. The High
Court held that since it is the same judicial officer who acts as the sub-judge and the
Controller, the deposit made in his court even under section 31 of the Punjab
Indebtedness Act will be a valid tender under the Rent Act so as to save the tenant from
eviction on the ground of non-payment of. rent.

Tender to Whom?

The obligation of the tenant to pay the rent is essentially towards the landlord.
The payment has to be made to the landlord either personally or by other methods like
deposit in his bank account, by money order, by cheque or draft. In the case of Sansar
Chand Vs. Nanak, in response to the eviction petition by the landlord, on account of non
payment of rent, the tenant sent the amount of arrears of rent by money order and the
Same was received by the landlord’s wife before the first date of hearing. It was held
that in the absence of any evidence that the relations between the . landlord and his
wife were strained, the payment made was a valid payment of rent. Similarly in the case
of Gurdev Singh Vs. Pushpa Batra, the rent paid by the tenant to Suman Batra, the
daughter of the landlady residing with her, against receipt was held to be a valid
payment of rent.

In the cases of Narinder Kumar alias Billa Vs. S. Kirpal Singh 1989 (2) RCR 125
P&H and Aneel Kaur Vs. Bhupinder Singh, (1989-2)96 P.L.R 243 — 1989(2) RCR 507 P&H,
the rent note executed by the parties put the total Claim of each of the landlords at Rs.
2,500/- p.m. The break up was Rs. 1,400/- by way of rent and Rs. 1,100/- as service
charges for telephone, water and sweeper. In both the cases for eviction of the tenants
on account of non payment of rent, the tenants deposited the arrears of rent at the rate
of Rs. 1,400/- p.m. In both the cases,it was held that the rent for the premises was Rs.
2,500/- p.m. and therefore the tender made at the first hearing was not valid tender.

It appears that the landlords in these cases, indulged in the exercise of putting
the break up of the total amount so as to circumvent the provisions of the Income Tax
laws. In these two cases, fortunately for the landlords, it was specifically written in the
rent notes that the agreed rent payable by the tenant shall be Rs. 2,500/- per month.
(Moreover, in Annel Kaur’s case, the tenant had obtained the tenancy by giving a false
reference of a lady known to the landlord. This led to a police Case between the
parties.) Had the rent note incorporated the rent as Rs, 1,400/- and specified additional
payment for service charges separately, then the agreed rent would have been Rs.
1,400/- only. Although there is nothing in the Act which prohibits a landlord from
charging for services but taking rent in the guise of service charges must be discouraged.
It may be specifically provided in the Act that the agreed rent shall be inclusive of
services, if any, to be provided by the landlord.

Tender by Whom?

Who can make a valid tender? This question arose in Punjab Rajasthan Good
Carrier Vs. Onkar Mal in the Punjab and Haryana High Court. It was held that the arrears
must be paid by the person who is the admitted tenant of the landlord. An alleged sub-
tenant could not pay the arrears of rent in the absence of the landlord-tenant
relationship. However, in its recent decision in the case of Smt. Pushpa Devi Vs. Milkhi
Ram, 1990 (1) RCR 334 (SC), the Apex Court, overruling the decision in Punjab Rajasthan
Goods Carrier case, has held that the obligation to tender the rent does not depend
upon the existence of admitted jural relationship of landlord and tenant. The benefit of
the proviso could be availed by the tenant and also by any one who claims to be the
tenant. The Apex Court also held that the word ‘tenant’ in the proviso has to be liberally
construed as different from the definition of tenant given under section 2(i) of the Act.
Justifying the liberal interpretation of the meaning of the term ‘tenant’ in the proviso,
the Apex court laid down that the governing principle of the proviso is that the tenant
could pay and stay in an action for eviction on default. At the same time, the landlord is
ensured payment of arrears, interest and the cost that he has incurred without the
necessity of going to civil court to recover it. The proviso affords a real and sanctified
protection to the tenant against eviction on the ground of default.

Arrears for How Long?

Section 13(2)(i) of the Act does not prescribe any limitation period for the
landlord to claim arrears of rent. In the absence of any period of limitation, it becomes a
handle for the landlord to evict his tenant. As already pointed out, the landlord, in the
first place, does not issue any receipts for the rent received and subsequently claims
eviction of the tenant alleging non-payment of rent even for the period for which the
rent has already been received by him. This puts the tenant at the mercy of the
landlord. The tenant is pratically in no position to prove that he has already paid the
rent which is being claimed by the landlord. The Court finds itself unable to rescue the
tenant where a landlord claims arrears of rent for the past six or seven years.

In the case of Raj Kumar Vs. Ram Parkash, 1982(2) RCJ 248 P&H, the landlady
sought eviction of her tenant on the ground of non-payment of rent for nine years. The
tenant claimed on oath that he had paid the rent. The landlady did not enter the witness
box to deny the payment of rent. The High Court held that though there is no limitation
prescribed under the Act but it could be inferred against the claim of the landlady. What
really came to the rescue of the tenant in this case was that the landlady did not appear
in the witness box. Had she put up an appearance and stood the cross examination, the
court would have had no other option except ordering the eviction of the tenant.

From the above cases, it emerges that it is possible for a landlord to claim that he
chose to sleep for years before waking up to claim the arrears of rent. This puts the
tenant in an outrightly disadvantageous position. To remove this anomaly, under the
Haryana Act, it is specifically provided that a landlord cannot claim arrears of rent for a
period of more than three years. It needs no emphasis that a similar provision should be
made in the Punjab Act whereby the limitation period for claiming arrears of rent should
be put at three years. The justification for this period of three years is that if a landlord
is negligent for so long abut his claim for the rent of his real estate, he should suffer for
it. A limitation period of less than three years may cause hardship to absentee landlords
like the non-resident Indians. Therefore, a landlord should not be allowed to claim
arrears of rent for more than three years immediately preceding the date of the
application under the Act.

Vendee from the Landlord

If the tenanted promises are sold by the landlord, the buyer steps into the shoes
of the seller for all rights and liabilities including the right to receive rent from the
tenant. A tenant, who is not aware of the sale and has not been informed by the buyer,
if keeps on paying the rent to the original landlord, he cannot be compelled by the
buyer to pay the rent again. Such bonafide payment of rent to the original landlord is
protected by Sections 50 and 109 of the T.P.Act. In Banwari Lal Vs. Wazir Chand 1981 (1)
RCR 460 it was ruled that if prior information of transfer is not given by the original
owner to the tenant, and the latter in good faith makes payment of the rent to him,
then that would be a good discharge of his liability under the lease contract and the
transferee landlord cannot take any advantage due to the tenant not paying such rent
again to him.

However, if the premises are sold after the landlord has filed an application for
the eviction of the tenant on the ground of non-payment of rent, the buyer has a right
to prosecute the case by stepping into the shoes of the seller. The question regarding
the locus-standi of a buyer from the landlord to prosecute the eviction petition against
the tenant on the ground of non-payment of rent was settled in Manmohan Singh Bedi
Vs. Santosh Kumari, (1985-1)87 P.L.R. 45 = 1984 (1) RCJ 621 P&H. In this case the tenant
did not tender the arrears of rent on the first hearing of the case. Subsequently, the
landlord sold the premises to another person. It was held that the buyer of the
premises, after first hearing, is entitled to prosecute the case against the tenant.

Non-payment of Rent Under Other Rent Acts

(a) Deposit in Court — Section 19A (3) (c) of the Rajasthan Act provides that the rent
may be deposited by the tenant in the Court if personal payment to the landlord or
deposit in Bank or payment through money order is not possible. In Kuldeep Singh Vs.
Ganpat Lal AIR 1996 S.C. 729 = 1996 (1) RCR 348 S.C., the tenant deposited the rent in
the Court under Section 19A(3)(C) without first exhausting the other modes of payment
like personal payment to landlord, Deposit in Bank and sending by money order. The
Supreme Court has ruled that the deposit directly in Court is not according to law.
Holding the tenant to be defaulter, his eviction was ordered.

(b) Striking off Defence —- In Raghunath Singh Vs. Vikram Sharma 1996 (1) RCR 332
Raj. (F.B.), a Full Bench of the Rajasthan High Court has ruled that during the pendency
of the suit, if the Controller has directed the tenant to pay a certain amount as Rent,
such a direction will bind the tenant during the pendency of the case with the controller
only. It has been ruled by the Full Bench that the non-payment of the directed rent in
appeal is no default which will call for the striking off the defence of the tenant.

Similarly a Division Bench of the Kerala High Court in Karaparanihil Vs.

Kalathinigal H.Haji 1995 (2) RCR 650 Ker. (D.B.), has held that the tenant has to deposit
arrears of rent to maintain the appeal only if he is directed by the Court to do so. He is
not required to suo moto deposit the arrears for the purpose of maintaining his appeal.
But once the direction to deposit is given by the Court, he must comply with it to
maintain his appeal.

(c) Notice and Default — Under the Kerala, Bombay and Delhi Rent Acts, the
landlord is required to give a notice to the tenant asking him to pay the arrears of the
rent. If the tenant defaults even after notice by the landlord, he becomes liable for
eviction under these Rent Acts.

In Chinnamma Vs. Gopalan 1995 (2) RCR 522 S.C. (Kerala Act), the Supreme Court
has held that the sending of 15 days notice for rent by the landlord is mandatory. The
tenant’s obligation to pay is with regard to those arrears which are mentioned in the
notice of the landlord. Arrears which may become due subsequent to the sending of
notice are not covered by the notice.

(d) Wilful Default — In Teegala Satyanarayana Vs. G.S.Bhagwan 1995 (1) RCR 516 S.C.
(A.P.Act), the Supreme Court has held that the Controller while extending time for
deposit by the tenant has to specifically record that the default is not wilful to take it
out of the mischief of wilful default. In this case the landlord accepted the deposit under
protest. The Supreme Court has ruled that the landlord does not waive the default by
accepting rent under protest. In M.Bhaskar Vs. J. Venkatarama Naidu 1996 (2) RCR 573
S.C.(A.P.Act), the tenant paid rent to the attorney of the landlord without landlord’s
instructions to that effect. The tenant did not follow section 8 of the A.P.Act to ask for
landlord's bank account number nor deposited it with the Controller. The Court has
ruled that the tenant is a wilful defaulter and thus liable for eviction. In the case of P.
Rajanna Vs. K.Lalitha Reddy AIR 1996 AP 113 = 1996 (1) RCR 434 A.P. (A.P.Act), the
Andhra Pradesh High Court has identified the following tests to determine as to whether
the tenant is guilty of wilful default: Social and economic status of the landlord and the
tenant, capacity of the tenant to pay at a particular time; bonafide conduct of the
tenant in attempting to pay rent; condition of the tenant at a particular time like illness,
festivals, family obligations; conduct of the landlord in relation to payment of rent by
the tenant; totality of circumstances to satisfy Court conscience; any other useful
circumstance.
 Conclusions

In discussing the various aspects of the case law dealing with the eviction of the
tenant on the ground of non-payment of rent, several lacunas and anomalies have been
identified and suggestions made to rectify the same. In order to make the ground of
non-payment of rent more effective and to ensure that it is not open to misuse either by
the landlord or the tenant, it may be reiterated that the following measures need to be
taken:

1. It should be categorically provided in the Act that the ‘first hearing' of the case
shall be the first date of appearance by the tenant in response to the summons served
or deemed to be served on him.

2. The Rent Controller shall calculate the arrears of rent, interest on it and the cost
of the petition on the day of first hearing The tenant, at the time of his appearance in
person or through counsel, shall be informed of the total claim made by the landlord.

3. Instead of the present cut throat method of getting the arrears deposited on the
same day, the tenant shall be given fifteen days time, from the date of first hearing, to
make a deposit of the arrears of rent.

4. Unlike the present position of the arrears being allowed to be claimed for any
length of time, the landlord shall not be allowed to claim arrears for more than three
years. Whenever the arrears are claimed for more than two years, the landlord shall be
asked to specifically explain, by giving cogent reasons, as to why he could not file his
claim for the arrears of rent earlier.

5. In view of the rapid growth and easy accessibility of the banking services in the
Country, the rent should be made payable in the bank account of the landlord. The
mention of the bank account number of the landlord should be made a compulsory
recital in the lease deed. Alternatively documentary payment of rent by money order,
payment against valid receipt, or deposit through the Controller should also remain
open to the tenant.

6. All leases, irrespective of their duration, should be made compulsorily registrable

to reduce the wastage of the Court time in recording evidence to establish the terms of
an oral tenancy. It will also help in augmenting the revenue income of the State.
7. To ensure that the tenant does not misuse the provision of ‘first hearing tender’,
the benefit of such a tender, to save the tenant from eviction, shall be available to him
only once. A provision like Section 14(2) of the Delhi Act should be incorporated to
ensure that the landlord receives in time the rent lawfully due to him. In case a tenant
commits the default a second time, the first hearing tender shall not be available to him
as a shield against eviction.

8. A continuous publicity campaign should be launched through the media to

enlighten the landlords and tenants about their rights and obligations. The campaign
should focus on the advantages of having a registered lease deed.

If the above measures are adopted under the Act, it is hoped that they will help
in mitigating the hardship caused to the landlord or the tenant in disputes relating to
non-payment of rent.
 Bibliography

 Dr. D.N. JAUHAR, Rent Matters on Trails, Jain Law Agency.

 Multani Balbir, Rent Restriction Law in Punjab, Haryana & H.P.,

Chawla Publication Pvt. Ltd., Chandigarh, 2nd Edition, 2006
Reprint.