Res-Judicata = “In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata.”= In our considered opinion, matter in issue in the pending suit before the learned Special Court in LGC No.44/2000 and previous decided suits is not merely identical but very same. Other ingredients of the principle of res- judicata are also fulfilled. Moreover, once identity of the property and the title thereof is finally adjudicated in CCCA No.14/1972, holding that land is situated in Survey No.129/68 Paiki, it operates as res judicata.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL  APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5113 OF 2017
                  (Arising out of SLP(C) No.26925 of 2010)

M/s Kaushik Coop. Building Society      …     Appellant(s)
                                  :Versus:
N. Parvathamma & Ors.                   ...  Respondent(s)
                                      WITH

                        CIVIL APPEAL NO. 5116 OF 2017
                   (Arising out of SLP(C) No.1632 of 2008)

                        CIVIL APPEAL NO. 5117 OF 2017
                   (Arising out of SLP(C) No.7713 of 2008)

                     CIVIL APPEAL NOS. 5118-5119 OF 2017
               (Arising out of SLP(C) Nos.23724-23725 of 2008)

                     CIVIL APPEAL NOS. 5120-5126 OF 2017
               (Arising out of SLP(C) Nos.27319-27325 of 2008)

                        CIVIL APPEAL NO. 5128 OF 2017
                  (Arising out of SLP(C) No.26142 of 2011)

                        CIVIL APPEAL NO. 5130 OF 2017
                  (Arising out of SLP(C) No.29328 of 2010)

                        CIVIL APPEAL NO. 5131 OF 2017
                  (Arising out of SLP(C) No.26140 of 2011)

CONTEMPT PETITION (C) NO.118/2013 in SLP (C) No.26140/2011



                               J U D G M E N T
Pinaki Chandra Ghose, J.

Leave granted.

Present appeals have been directed against the  common  judgment  and  order
dated 6th August, 2010 passed  by  the  High  Court  of  Andhra  Pradesh  at
Hyderabad in Writ Petition Nos.11869 &  11951  of  2010,  whereby  the  writ
petitions filed by the appellants were dismissed. The High Court was of  the
view that “whether filing of LGC is barred by res-judicata  or  constructive
res-judicata is a mixed question of law and fact, which can be decided  only
on appreciation of evidence led in to the said effect”. The High  Court  was
further of the view that the Special Court constituted under the  provisions
of A.P. Land Grabbing (Prohibition) Act, 1982 (for short “the Act”) did  not
commit any error in taking cognizance of the case being Land  Grabbing  Case
No.44/2000.

Since the present appeals, by special leave, have been filed  assailing  the
same common judgment, they were heard together and are being disposed of  by
this common judgment. For the sake of convenience, Civil Appeal arising  out
of Special Leave Petition (Civil) No.26925 of 2010  is  taken  as  the  main
appeal. It is imperative to record brief facts  for  the  disposal  of  this
case, which are as follows:

One V.R.K. Shastry had purchased the land to an extent of 12 acres 9  guntas
out of 16 acres 9 guntas of land in Survey  No.129/68  Paiki  from  one  Md.
Moulana vide agreement dated 29.12.1963. A suit for specific performance  of
the said agreement having been dismissed, V.R.K.  Shastry  filed  an  appeal
before the High Court of Andhra Pradesh which was numbered as CCCA No.14  of
1972. The High Court of Andhra Pradesh while allowing  CCCA  No.14  of  1972
vide judgment and decree dated 26.10.1976  decreed  the  suit  for  specific
performance wherein it was held that the  suit  property  was  comprised  in
Survey No.129/68 Paiki  and  not  in  Survey  Nos.139/51  &  129/52  and  is
separate and distinct land.  It  is  pertinent  to  mention  here  that  the
defendant died during pendency of suit and his  legal  representatives  were
impleaded in the aforesaid suit, who had earlier  raised  the  objection  of
different survey numbers. Subsequently, the decree in  CCCA  No.14  of  1972
came to be amended by the High Court and the judgment debtors were  directed
to execute the sale deed in favour of the decree holder or his nominee.

After obtaining the decree V.R.K. Shastry applied for  exemption  under  the
ULC Act.  The  Government  of  Andhra  Pradesh  vide  G.O.Ms.  No.523  dated
26.03.1979 granted exemption in favour of V.R.K. Shastry. Part of said  land
was  purchased  by  the  appellant  society  and  Municipal  Corporation  of
Hyderabad sanctioned layout in  File  No.45/layout/8/85  in  favour  of  the
appellant society for development of 7.00 acres of land out of  12  acres  9
guntas in Survey No.129/68 Paiki. Rest of the  portion  in  the  above  said
decreetal land was assigned to one V. Narsimha Reddy and  others  under  the
Assignment Deed dated 15.01.1988. Later, 41 sale deeds  were  registered  in
favour of the assignees, after this Court  on  12.09.1994  dismissed  SLP(C)
No.11381/1994 filed by the judgment debtors and  upheld  the  order  of  the
executing court permitting the assignees to obtain registered sale deeds  in
their favour. The High Court dismissed the  appeal  being  AAO  No.2647/1998
vide its order dated 27.10.1998 and  the  order  of  the  learned  executing
court attained finality.

Between year 1989 and 1996, three different land grabbing  cases  under  the
Act were filed in the Special Court against the  appellant  society  by  the
legal representatives  of  deceased  Md.  Moulana,  Sai  Nagar  Housing  Co-
operative Society and the State of Andhra  Pradesh,  being  LGC  No.46/1989,
LGC No.29/1992 and LGC No.15/1996 respectively, alleging that  the  property
claimed by the appellant herein was not a part of Survey No.129/68 but  that
of Survey No.129/51 and 129/52. All the land grabbing cases  were  dismissed
and when a batch of writ petitions were filed in the High  Court  of  Andhra
Pradesh, the same were dismissed vide a  common  judgment  dated  01.05.2007
passed by the High Court. The High Court in said common judgment had  upheld
that the disputed property is part of land in Survey No.129/68 and the  same
belonged to the appellant society. It is pertinent to mention here that  LGC
No.15/1996 was dismissed as withdrawn.

One K. Balram and few others filed another Land Grabbing Case No.44 of  2000
before the Special Court established under the Act in  respect  of  Land  in
Survey No.129/52, RS No.327, claiming that  he  and  other  members  of  the
Hindu Joint Family, he as the manager, had purchased the  disputed  property
under the registered Sale Deed  dated  25.03.1967  from  one  of  the  legal
representatives  of  Md.  Moulana,  namely,  Abdul  Rub.   The   above-noted
purchaser/ assignee of the land, namely, V. Narsimha Reddy was impleaded  in
the said case and the applications filed by the said V. Narsimha  Reddy  and
the appellant herein, for quashing  of  LGC  No.44/2000  on  the  ground  of
maintainability, were dismissed vide order dated 30.04.2010.

Being aggrieved the appellant herein and the above named V.  Narsimha  Reddy
filed Writ Petition Nos.11951/2010 and 11869/2010, respectively, before  the
High Court of Andhra Pradesh for quashing of LGC No.44/2000. The High  Court
vide impugned common judgment dismissed both the writ petitions  and  upheld
the order passed  by  the  Special  Court  whereby  it  was  held  that  LGC
No.44/2000 in the Special Court is maintainable. Hence, the present  appeals
by special leave.

After perusing the entire material placed  on  record  before  us,  we  have
noticed that High Court had framed two points for consideration, viz.,

Whether the Special Court committed any illegality in taking  cognizance  of
the case under Section 8(1) of the Act?

Whether LGC pending before the Special Court is liable  to  be  rejected  by
setting aside the common order dated 30.04.2010 passed in  I.A  Nos.585/2007
and 216/2010 and allowing the said petitions?



We have further noticed that the High Court  has  answered  both  the  above
questions in the negative and observed that entire trial  has  already  been
completed except the cross-examination of  Mandal  Revenue  Officer  in  the
said pending LGC. It was further observed that  whether  filing  of  LGC  is
barred by res-judicata or constructive res-judicata, is a mixed question  of
law and fact, which can be decided only on appreciation of evidence  led  to
that effect.

We have carefully perused the entire record and in our considered view,  the
only question of law which requires to be answered by this Court is:

Whether the High Court is justified in not quashing the proceedings  in  LGC
No.44/2000, when the Special Court  ex-facie  lacks  jurisdiction  over  the
subject matter in the instant case  in  the  light  of  principles  of  res-
judicata?



The main point revolves around  the  principles  of  res-judicata  which  is
neither against public policy nor res-integra to civil procedure  prevailing
in our country. The doctrine of res judicata is a  wholesome  one  which  is
applicable not merely to matters governed by the provisions of the  Code  of
Civil Procedure but to all litigations, as was observed  by  A.Alagiriswami,
J. in Bombay Gas Co. Vs. Jagannath Pandurang, (1975) 4 SCC 690 (para 11).

The question of res-judicata is not res integra to our judicial system.  The
rule of res judicata while founded on ancient precedent  is  dictated  by  a
wisdom which is for all time and that the application of  the  rule  by  the
Courts should be influenced by no technical considerations of form,  but  by
matter of substance within the limits allowed by law: Sheoparsan  Singh  Vs.
Ramanandan Prasad Narayan Singh, AIR 1916 PC 78.  Furthermore,  it  is  well
settled that the principle of res judicata is applied  for  the  purpose  of
achieving finality in litigation as laid down by this Court in the  case  of
Sri  Bhavanarayanaswamivari  Temple  Vs.  Vadapalli  Venkata   Bhavanarayana
Charyulu, (1970) 1 SCC 673, relevant paragraph of which is quoted below:

"8. … It was observed that the doctrine of res judicata is not  confined  to
a decision in a suit but it applies to decisions  in  other  proceedings  as
well. But how far a decision which is rendered  in  other  proceedings  will
bind the parties depends upon other considerations one of which  is  whether
that decision determines substantial rights of  parties  and  the  other  is
whether the parties  are  given  adequate  opportunities  to  establish  the
rights pleaded by them. The doctrine of res judicata is not confined to  the
limits prescribed in  Section  11,  Civil  Procedure  Code.  The  underlying
principle of that doctrine is that there should be  finality  in  litigation
and that   a   person   should   not   be vexed   twice over   in    respect
  of the   same matter.".

(emphasis supplied)

To constitute a matter res judicata, as  observed  by  this  Court  in  Syed
Mohd. Salie Labbai Vs. Mohd. Hanifa, AIR 1976 SC 1569 = (1976)  4  SCC  780,
the following conditions must be proved: (1)  that  the  litigating  parties
must be the same; (2) that the subject-matter  of  the  suit  also  must  be
identical; (3) that the matter must be finally decided between the  parties;
and (4) that the suit must be decided by a court of competent  jurisdiction.
In the case of Narayana  Prabhu  Venkateswara  Prabhu  Vs.  Narayana  Prabhu
Krishna Prabhu, AIR 1977 SC 1268 = (1977) 2 SCC  181,  it  was  observed  by
this Court: “One of the tests  in  deciding  whether  the  doctrine  of  res
judicata applies to a particular case or not is  to  determine  whether  two
inconsistent decrees will come into existence if it is not applied.”

We have heard the arguments of the learned  counsels.  Learned  counsel  for
appellant society would argue that the main issue in the present  matter  is
not an inter-se title dispute as none of  the  other  parties  are  claiming
title over Survey No.129/68 Paiki but are only  disputing  the  identity  of
the suit land. It was further argued that identity of the suit property  has
been settled to be  in  Survey  No.129/68  Paiki  in  more  than  one  legal
proceeding, few of which have attained finality. It  was  further  submitted
that the impugned judgment does not warrant interference on account  of  the
fact that the Special Court has gone elaborately into the evidence  produced
before it  by the respective parties.

It was further submitted that issues as to what  constitutes  jurisdictional
facts for the purpose of  Sections  2(d)  and  2(e)  of  the  Act  has  been
elaborated upon by this Court in Om Parkash Singh Vs. M. Lingamaiah &  Ors.,
(2009) 12 SCC 613, and taking into consideration  the  extensive  discussion
made by this Court on scope and definition of the terms “Land-grabbers”,  it
could be said that the appellant society is a land grabber.

Per contra, the counsel  for  respondents  has  submitted  that  respondent,
namely, Sri Sai Nagar Co-operative Housing Society Ltd.  was  recognized  as
the vendors by the respondent State by way of Government Order.  He  further
submitted that Survey No.129/52 has been re-numbered as  Survey  No.327  and
appellant society and others come within the ambit of Section  2(d)  of  the
Act, because as per  the  Rectification  Deed  from  its  vendors  and  thus
learned Special Court and the High Court are erroneous in  law  because  the
Special Court under the Act has gone beyond jurisdiction.



It was argued by the learned counsel for the respondents that the  principle
of  res  judicata  cannot  be  applied  to  this  particular  case   because
respondent society is bona fide purchaser of the scheduled property  and  as
such both the Special Court and the High Court were wrong  in  coming  to  a
conclusion that the respondent society was to be non-suited  on  the  ground
of res judicata based on the judgment passed in CCCA No.14 of 1972.

Learned counsel  for  respondents  who  are  legal  representatives  of  the
deceased Md.  Moulana,  submitted  that  the  Special  Court  had  requisite
jurisdiction to go into the questions of title and identity. He relied  upon
the judgment of this Court  in  the  case  of  Mandal  Revenue  Officer  Vs.
Goundla Venkaiah & Anr., (2010) 2 SCC 461, para  20,  wherein  it  was  held
that the Land Grabbing  Act  is  a  self-contained  Code  which  deals  with
various facets of Land Grabbing and provides for a  comprehensive  machinery
for determination of various issues relating  to  land  grabbing,  including
the claim of the alleged land grabber that he has  a  right  to  occupy  the
land or that he has acquired title by adverse possession.

It was further submitted by the learned counsel  that  the  findings  in  OS
No.29/1965, CCCA No.14/1972 and the E.A. No.14/1995 in  E.P.  No.20/1995  do
not have force so as to attract principles of res judicata as against  Abdul
Bashisht and his legal heirs and Abdul Rub and his legal heirs. He drew  our
attention to the relevant part  of the order  dated  17.04.1970,  passed  by
the learned II Additional Chief  Judge  in  O.S.  No.29/1965,  which  is  as
follows:

“6. Subsequent to the filing of the suit the fourth defendant  died  and  no
legal representatives have been  brought  on  record.  Hence  the  suit  was
abated against the 4th defendant.”



Learned counsel relied upon the following judgments of this Court:  Williams
Vs. Lourdu Swamy & Anr, (2008) 5 SCC 647; Sajjadda Nashin Sayyeed  Vs.  Musa
Dada Bhai Umar, (2000) 3 SCC 350 and Malia Bajrangi dead through LRs &  Anr.
Vs. Badri Bai wife of Jagannath & Anr, (2003) 2 SCC 464,  wherein  scope  of
Section 11 of the Code of Civil Procedure, 1908 was  discussed  and  it  was
found that when the matter in issue  is  substantially  different  from  the
previous proceedings, res judicata could not be applied.

Learned counsel for respondents (L.Rs. of deceased  Md.  Moulana)  concluded
his arguments while submitting that the Special Court  and  the  High  Court
while appreciating the evidence are per se perverse while relying  upon  the
law laid down by this Court in Shama  Prassanth  Raji  Vs.  Ganapath  Rao  &
Ors., (2000) 7 SCC 522, which is as follows:

“Undoubtedly,  in  a  proceeding  under  Articles  226  and   227   of   the
Constitution the High Court cannot sit in appeal over the findings  recorded
by a competent Tribunal. The jurisdiction of the High Court,  therefore,  is
supervisory and not appellate.



Consequently Article 226 is  not  intended  to  enable  the  High  Court  to
convert  itself  into  a  Court  of  Appeal  and  examine  for  itself   the
correctness of the decision impugned and decide what is the proper  view  to
be taken or order to be  made.  But  notwithstanding  the  same  on  a  mere
perusal of the order of an inferior Tribunal if the High Court  comes  to  a
conclusion  that  such  Tribunal  has  committed  manifest  error  by   mis-
construing certain documents, or the High  Court  comes  to  the  conclusion
that on the materials it is not possible for a reasonable man to come  to  a
conclusion arrived at by the inferior Tribunal or the inferior Tribunal  has
ignored to take into consideration certain relevant materials or  has  taken
into consideration certain materials which  are  not  admissible,  then  the
High Court will be fully justified in interfering with the findings  of  the
inferior Tribunal.”



Before arriving at the conclusion, we would like to emphasize on  the  ratio
of another judgment of this Court in the case of  Ramji  Gupta  &  Anr.  Vs.
Gopi Krishan Agrawal (dead) & Ors., (2013) 9 SCC 438, para 15,  which  reads
as follows:

“In order to operate as res judicata, the  finding  must  be  such  that  it
disposes of a matter that is directly and  substantially  in  issue  in  the
former suit, and that the said  issue  must  have  been  heard  and  finally
decided by the court trying such suit. A matter  which  is  collaterally  or
incidentally in issue  for  the  purpose  of  deciding  a  matter  which  is
directly in issue in the case, cannot be made the basis for a  plea  of  res
judicata.”



We have perused the written notes on arguments of the learned  counsels  for
both the parties and after a punctilious scrutiny  of  complete  record,  we
are of the considered opinion that it may be true that the Court at  initial
stage may not enter into the merit of the matter. Its opinion in the  nature
of things would be a prima facie one. But the Court must also consider  that
the analogy of res-judicata or of the technical  rules  of  civil  procedure
is, in cases like the present one, appropriate and the Courts  are  expected
to administer the law so as  to  effectuate  its  underlying  object.  Court
shall also bear in mind that  the  basic  character  of  this  principle  is
public policy and preventive as to give finality  to  the  decision  of  the
Court of competent jurisdiction and prevent further litigation.

In our considered opinion, matter in issue in the pending  suit  before  the
learned Special Court in LGC No.44/2000 and previous decided  suits  is  not
merely identical but very same. Other ingredients of the principle  of  res-
judicata are also fulfilled. Moreover, once identity  of  the  property  and
the title thereof is finally adjudicated in CCCA  No.14/1972,  holding  that
land is situated in Survey No.129/68 Paiki, it operates as res judicata.

Judged in this background and the principle set out  above,  the  inevitable
conclusion is that both the Special Court and the High Court have  committed
error in not appreciating  the  fact  that  orders,  judgments  and  decrees
passed in previously decided land grabbing  cases  have  attained  finality,
wherein it was  reiterated many a times  that  the appellant  society   i.e.
M/s. Kaushik Coop. Building Society  is  the  owner  of  the  suit  property
which is comprised of Survey  No.129/68  and  not  in  Survey  No.129/51  or
129/52 (which  has  been  re-numbered  as  327).  Thus,  in  our  considered
opinion, the approach of the High Court in the impugned order  seems  to  be
erroneous.  Therefore,  the  question  before  us  is,  thus,  answered   in
negative.

Hence, the appeals filed by the appellant society  are  hereby  allowed  and
the  appeals  filed  by  the  respondents  herein  are   hereby   dismissed.
Consequently, the impugned judgment passed by the High  Court  as  also  the
order passed by the Special Court in I.A. No.585/2007 and  I.A.  No.216/2010
in LGC No.44/2000, are hereby  quashed  and  set  aside.  Contempt  Petition
(Civil) No.118 of 2013 in  SLP(C)  No.26140 of 2011  filed  by  respondents,
namely, Sara Abdul Gafoor & Ors., is also  dismissed.   There  shall  be  no
order as to costs.

                               ……..………….………….J

                           (Pinaki Chandra Ghose)



                               ……..………….………….J

New Delhi;                              (Uday Umesh Lalit)

April 11,  2017.

The facts before the Court leave no manner of doubt that there was a stubborn and steadfast unwillingness on the part of the tenant to comply with the order passed by the Rent Controller even to the extent of non- deposit of rent for the period for which it was admittedly due and payable. The tenant even went to the extent of claiming that a direction could have only been issued for the deposit of the arrears and not for the payment of the rent for subsequent months as directed by the appellate court as a condition for the grant of stay. Accepting the line of interpretation which has been suggested by the respondents would lead to a situation where, though the rate of rent is not in dispute and the tenant admits that rent is due and payable for a certain duration of time (while disputing the quantum of arrears) the landlord in pursuance of a determination made on a provisional basis by the Rent Controller would be deprived of the rent due and payable, while the tenant takes a chance of being able to demonstrate in the course of an appeal against the order of eviction that the initial determination for a certain part of the period was not payable. In our view such an interpretation would defeat the object and purpose of Section 13 and the rationale for the decision of this Court in Wadhawan (supra) which has brought about a balance between the rights of the landlord and the tenant. If the respondents intended to dispute the claim of arrears for a specified period, there was no reason or justification for them not to deposit the rent. It needs to be kept in mind, that the legislative concession, extended to tenants through the proviso under Section 13(2)(i), is available conditionally. To be entitled to be saved against eviction, the tenant must satisfy the conditions laid down. To understand the words “assessed by the Rent Controller”, as “correctly assessed”, would not be proper. Arrears payable by a tenant, would be correctly assessed only after evidence is recorded and concluded. The instant assessment is clearly provisional. It is made, even before evidence has commenced to be recorded. Therefore, it would be improper to understand and extend to such assessment, any further meaning. Every kind of excuse was made by the tenant for not paying the rent due and payable. As we have set out earlier the cheques that were issued to the appellant were dishonoured. In this view of the matter, the tenant cannot have the benefit of the observations contained in the judgment of this Court in Harjit Singh Uppal (supra) for the simple reason that they would not come to the aid of a tenant who has not deposited even the admitted dues in pursuance of the determination which has been made by the Rent Controller, even though the proviso extends the concession, only to tenants who have complied. The High Court while determining whether the provisional determination of the Rent Controller was correct or otherwise could not have ignored the position that while the rent payable was Rupees 25,000 per month till 31 May 2006 and Rupees 28,000 per month from 1 June 2006, the Rent Controller had directed a deposit only of Rupees 19,000 per month. The Respondents deposited nothing within the period fixed and a deposit made in May 2008 would not enure to their benefit. For these reasons, we are of the view that the High Court fell into error in allowing the revision application against the judgment and order of the appellate authority and in setting aside the order of eviction. The Civil Revision filed by the respondents was liable to be dismissed and we order accordingly.

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 5129  OF 2017
                  [Arising out of SLP(C) No. 24952 of 2015]



DALIP KAUR BRAR                                     ..APPELLANT



                                   VERSUS



M/S.GURU GRANTH SAHIB SEWA MISSION
(REGD.) AND ANR.                                         ..RESPONDENTS



                               J U D G M E N T







Dr D Y CHANDRACHUD, J

            Leave granted.

2     The Rent Controller ordered that the tenant be evicted  under  Section
13 of the East Punjab Urban Rent Restriction Act,1949[1]  for defaulting  in
the payment of rent. The Punjab and Haryana High Court set aside  the  order
of eviction. The correctness of the decision rendered by the learned  Single
Judge on 29 April 2015 has been called into question. The appellant  is  the
landlord. The Respondents are her tenants.

3     On 1 June 2005 a lease was  executed  by  the  appellant  by  which  a
residential property, bearing House No. 2535 in Sector 35-C  at  Chandigarh,
was let out to the respondents. The  term  of  the  lease  was  three  years
commencing on 1 June 2005, to end on 31 October 2008. The  rent  agreed  was
Rupees 25,000 for an initial period of one year which was to be enhanced  to
Rupees 28,000 commencing from 1 June 2006 for the remainder of the term.

4     On 8 November 2006,  the  appellant  filed  an  ejectment  application
under Section 13 of the Act on the ground that : (i) the respondents  failed
to pay the rent from 1 November 2005 to 31 May 2006 at the  agreed  rate  of
Rupees 25,000 per month and with effect from 1 June  2006  at  the  rate  of
Rupees  28,000  per  month,  and  the  cheques  which   were   issued   were
dishonoured; (ii) the premises have been kept  locked  and  were  not  being
used for sufficient reason since December 2005.

5     The respondents contested the ground of default by claiming that  they
had paid an advance of six months’ rent and hence no arrears were due.

6     The Rent Controller  by  an  order  dated  14  November  2007  made  a
provisional assessment of rent and directed the respondents  to  deposit  an
amount of Rupees 19,000 per month with effect  from  1  June  2005  together
with interest at the rate of 6 per cent per annum and  costs  quantified  at
Rupees 500. The order of the Rent Controller fixed  the  proceedings  on  14
December 2007 for payment or tender of the rent as  provisionally  assessed.


7     On 14 December 2007 the respondents filed an  application  for  review
on the ground that though the appellant had claimed rent with effect from  1
November 2005 the direction for deposit was with effect from  1  June  2005.
The fact that the respondents were in arrears appears not to  have  been  in
dispute for even in the  application  for  review  the  prayer  was  in  the
following terms :

“…It is, therefore, respectfully prayed that the order dated 14.11.2007  may
kindly be reviewed and set aside and the Respondent, be  allowed  to  tender
the rent from 01.03.2007 to 14.11.2007, in the interest of justice.”



The respondents failed to comply with the order of provisional assessment.

8     Since the respondents  failed  to  comply  with  the  order  by  which
provisional rent was determined together with interest and costs,  the  Rent
Controller passed an order of eviction on 14 December 2007. The  respondents
filed an appeal against the order.  On 7 January  2008  a  conditional  stay
was granted by the District and Sessions Judge, Chandigarh,  acting  as  the
appellate authority, by which the order of eviction was  stayed  subject  to
the deposit of rent within a period of one month before the Rent  Controller
and the continued deposit of the monthly rent by the seventh  day  of  every
succeeding month. The respondents  failed  to  comply  with  the  conditions
subject to which stay was granted. Instead, they filed on  7  February  2008
an application for modifying the order dated 7 January 2008. On 11  February
2008, the respondents filed an  application  for  extension  of  time.   The
appellate  court  by  its  order  dated  18  February  2008  dismissed   the
applications for modification and for extension of time.

9     The first  round  of  proceedings  before  the  High  Court  was  then
initiated by the respondents by instituting a civil revision  application[2]
in which they sought to challenge the order of eviction  dated  14  December
2007, the order granting conditional stay  dated  7  January  2008  and  the
order  of  the  appellate  court  dated  18  February  2008  dismissing  the
application for modification and extension of time.  A learned Single  Judge
of the High Court by an order  dated  31  March  2008  dismissed  the  civil
revision.

10     The  appellant  thereupon  filed  an  application  before  the   Rent
Controller for executing the order of eviction dated 14 December 2008. On  3
June 2008 the Rent Controller issued a warrant of possession. The  appellate
court declined to stay execution on 14 June  2008.  This  led  to  a  second
round of proceedings before the High Court in the form of a  Civil  Revision
Application (RA No. 3922 of 2008) by which the  respondents  challenged  the
order of the Rent Controller dated 14 November  2007  making  a  provisional
determination of the rent, the order of eviction dated 14 December 2007  and
the order dated 14 June 2008 of the appellate authority  declining  to  stay
the execution proceedings.

11    A learned Single Judge of the High Court dismissed the Civil  Revision
on 14 June 2008 though by then, the respondents claim to have  deposited  an
amount of Rupees 6.50 lakhs towards the arrears  of  rent.  The  High  Court
held that on 31 March 2008 it  had  already  dismissed  the  civil  revision
against the interim order passed by the  appellate  authority  and  hence  a
fresh application was  barred.   Moreover,  the  High  Court  noted  that  a
substantive appeal against the order of  eviction  was  pending  before  the
appellate authority. The appellate authority was directed to dispose of  the
appeal expeditiously, by 28 February 2009.

12    A Special Leave Petition was  filed  before  this  Court  against  the
order of the High Court dismissing the Civil Revision.  During the  pendency
of the special leave petition the appellate authority dismissed  the  appeal
against the order of eviction on 25 February 2009.  The  respondents  failed
to comply with the order passed by this  Court  for  depositing  the  entire
arrears within two months.   Eventually,  the  special  leave  petition  was
dismissed on 2 April 2012 and an interim order passed by this Court  earlier
was vacated.

13    Thereafter a third round of proceedings was initiated before the  High
Court in the form of a Civil Revision Application (RA No. 3202 of  2009)  in
which the order of  eviction  and  the  order  of  the  appellate  authority
dismissing the appeal of the respondents was questioned. The High  Court  by
its judgment and order dated 29 April 2015 has allowed  the  civil  revision
and set aside the order of eviction. The High Court has  principally  relied
on the fact that by the provisional order of assessment the Rent  Controller
had directed the respondents to deposit rent with effect from  1  June  2005
though the tenant was alleged to have been in default  with  effect  from  1
November 2005.  Since the order of provisional assessment has been  held  to
be flawed on this ground, the consequential order of eviction has been  held
to be contrary to law.  However, the proceedings have now been remanded  for
consideration of the ground of non-use on which a decree  for  eviction  has
also been sought.  The judgment of the High Court is  called  into  question
in these proceedings.

14    The first submission which has been urged on behalf of  the  appellant
is that the correctness of the order of eviction dated 14 December 2007  was
called into question in the first civil revision Application that was  filed
before the High Court.  The dismissal of the application on 31  March  2008,
it was asserted, culminated in the challenge to the order of eviction  being
concluded. The order of the High Court dated  31  March  2008  has  attained
finality, there being no further proceedings before  this  Court.  Hence  it
has been submitted that the challenge to the order  of  eviction  in  appeal
did not survive upon the dismissal of the Civil Revision Application  on  31
March 2008.   This  submission  was  sought  to  be  further  buttressed  by
adverting to the principle of issue estoppel as elaborated in the  judgments
of this Court in Hope Plantations Ltd. v. Taluk  Land  Board,  Peermade  and
Anr.[3] and Narayan Dutt Tiwari  v. Rohit Shekhar and Anr.[4].

15    In order to address the submission, it would be necessary to  note  at
the outset that following the failure of the respondents to comply with  the
provisional assessment made by the Rent Controller on 14 November 2007,  the
order of eviction was passed on 14 December 2007. The respondents  filed  an
appeal against the order of eviction and on 7  January  2008  a  conditional
stay was granted subject to deposit.  The respondents filed  an  application
for modification of the condition of deposit  and  for  extension  of  time.
When both the applications  were  dismissed  by  the  appellate  Court  they
instituted  proceedings  before  the  High  Court  invoking  its  revisional
jurisdiction.  Undoubtedly, the frame of the civil revision  incorporated  a
challenge to the order of eviction as well as to the orders  passed  by  the
appellate authority on 7 January 2008 (granting a conditional stay)  and  on
18  February  2008  (dismissing  the  application   for   modification   and
extension). At that  stage,  the  respondents  having  already  invoked  the
appellate remedy against the order of eviction,  the  substantive  challenge
to the order of eviction could not have  been  the  subject  of  a  parallel
proceeding before the High Court in a  civil  revision.   An  appeal  having
been preferred against the  order  of  eviction,  it  would  be  natural  to
postulate that the respondents would have to  first  exhaust  the  appellate
remedy before seeking to question the final order of  eviction  in  revision
before the High Court.  Moreover, the appeal was not withdrawn.   The  scope
of the challenge by the respondents before the High Court  in  revision  was
in regard to the conditions which were imposed by  the  appellate  authority
for staying the operation of the order of  eviction.  The  respondents  were
aggrieved by the condition of deposit and by the refusal  of  the  appellate
authority to modify  its  order  imposing  those  conditions.  The  revision
traversed that limited area and it would be impermissible  to  construe  the
judgment of the High Court dated 31 March 2008 as having  brought  down  the
curtains on the order of eviction dated 14 December 2007.  The appeal  filed
against the order of eviction was still pending and there is  no  reason  to
assume that the High Court would, despite the recourse  that  was  taken  by
the tenants to the appellate remedy, interdict the exercise of  jurisdiction
by the appellate authority in exercise of  the  statutory  right  of  appeal
under Section 15(1)(b) of the Act.

16    There can be no dispute about the position in law.   The  decision  in
Hope Plantations Limited (supra) formulates the principle in  the  following
observations :

“26.…..When the proceedings have attained finality parties are bound by  the
judgment and are estopped from questioning it.  They cannot  litigate  again
on the same cause of action nor  can  they  litigate  any  issue  which  was
necessary for decision in the earlier  litigation.  These  two  aspects  are
“cause of action estoppel” and “issue estoppel”.  These  two  terms  are  of
common law origin.  Again,  once  an  issue  has  been  finally  determined,
parties cannot subsequently in the same suit  advance  arguments  or  adduce
further evidence directed to showing that the issue was wrongly  determined.
 Their only remedy is  to  approach  the  higher  forum  if  available.  The
determination of the issue between the  parties  gives  rise  to,  as  noted
above, an issue estoppel….”



In the subsequent judgment of a Bench of two learned Judges in Narayan  Dutt
Tiwari (supra), it has  been  held  that  principles  of  res  judicata  and
constructive res judicata apply  also  to  successive  stages  of  the  same
proceedings. However, in the present case this  principle  would  not  stand
attracted for the simple reason that the legality of the order  of  eviction
was the subject matter of a statutory appeal under Section  15(1)(b)  before
the appellate authority.  Properly construed,  the  scope  of  the  revision
application before the High  Court,  during  the  pendency  of  the  appeal,
related to the conditions which were imposed by the appellate authority  for
staying the order of eviction.  The decision of  the  High  Court  dated  31
March 2008 would hence have to  be  construed  as  a  view  taken  upon  the
legality of the conditions imposed by the appellate  authority  for  staying
the order of eviction and not in regard to the  legality  of  the  order  of
eviction which was pending consideration in the  appeal.   We  therefore  do
not find merit in the first submission which has been  urged  on  behalf  of
the appellant.

17     The  next  aspect  of  the  matter  arises  from  the  provisions  of
   Section 13.  Insofar as it is material, Section 13 provides as follows  :


“13. Eviction of tenants.- (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 tenancy, except in  accordance  with  the
provisions of this section, or in pursuance of an order made  under  Section
13 of the East Punjab Urban Rent  Restriction  Act,  1949,  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  applicant,  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  applications  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.

***              ***               ***

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.”



18    Sub-section (1) of Section 13 contains a bar  to  the  eviction  of  a
tenant who is  in  possession  of  a  building  or  rented  land  except  in
accordance with the provisions of the Section or in pursuance  of  an  order
passed  under Section 13 of the  East  Punjab  Urban  Rent  Restriction  Act
1949. A landlord who seeks the  eviction  of  his  tenant  must  under  sub-
section (2) apply to the Rent Controller.  Clause  (i)  of  sub-section  (2)
empowers the Rent Controller to pass an order  of  eviction  (directing  the
tenant to put the landlord in possession) if the  tenant  has  not  paid  or
tendered the rent due by him within 15 days of the expiry of the time  fixed
in the agreement of tenancy or, where there is no  agreement,  by  the  last
day of the month following the month for which  the  rent  is  payable.  The
proviso to clause (i) of sub-section (2) is in the nature  of  a  concession
by which the legislature has introduced  a  deeming  fiction.   The  deeming
fiction arises where the tenant at the first hearing of the application  for
ejectment pays or tenders the arrears of rent together with interest at  six
per cent per annum and the costs of the application  assessed  by  the  Rent
Controller.  If this condition is fulfilled, the deeming fiction that  comes
into being is that the tenant shall be deemed to have duly paid or  tendered
the rent “within the time  aforesaid”.   The  expression  “within  the  time
aforesaid” obviously is in reference to the time for payment of  rent  which
is stipulated in the substantive part  of  clause  (i)  of  sub-section  (2)
immediately before the commencement of the proviso.

19    Hence the position is that the tenant must  pay  or  tender  the  rent
within 15 days of the expiry of the time fixed in the agreement  of  tenancy
or in the absence thereof “by the last date  of  the  month  next  following
that for which the rent is payable”.  If the tenant  fails  to  do  so,  the
Rent Controller upon being moved by the landlord is empowered to  order  the
eviction  of  the  tenant.   This  consequence  is  however  obviated   upon
compliance with the terms of the proviso.  Before a  tenant  can  claim  the
benefit of the proviso, it is necessary that its  terms  must  be  observed.
Where the tenant upon an assessment being made by the  Rent  Controller  has
on the first hearing of the application for eviction paid  or  tendered  the
arrears of rent  together  with  interest  and  costs  as  assessed  by  the
Controller, by a deeming fiction of law, the  tenant  would  be  treated  to
have duly paid or tendered the rent within the period as stipulated  in  the
statutory provision.  In order to seek the benefit  of  the  proviso,  there
has to be first an assessment by the  controller;  second,  the  payment  or
tendering of the rent, interest and costs by the  tenant  in  terms  of  the
order of the Rent Controller and third, such payment or tender  must  be  on
the first hearing of the application for ejectment.  But for the proviso,  a
tenant in default would be  liable  to  suffer  an  order  of  eviction  for
default in paying rent. The proviso makes a concession  but  conditions  the
benefit of the concession granted to the tenant subject to  compliance  with
its conditions.  If the tenant complies with  the  conditions,  the  deeming
fiction  comes  into  existence.   If  the  tenant  fails  to   fulfil   the
conditions, the Rent Controller will be empowered  to  order  eviction.   To
protect himself against suffering the consequence of  eviction,  the  tenant
has no option but to tender or pay the rent, interest and costs assessed  by
the Rent Controller on the first hearing of the application  for  ejectment.
If he fails to do so, the tenant will not have the benefit  of  the  deeming
fiction by which the consequence of a default in payment is obviated.

20    In Rakesh Wadhawan and  Ors.v.  Jagdamba  Industrial  Corporation  and
Ors.[5], a  Bench  of  two  learned  Judges  of  this  Court  construed  the
provisions of Section 13(2)(i).  Its conclusions were summarised thus :





“To sum up, our conclusions are :

In Section 13(2)(i) proviso, the words “assessed by the Controller”  qualify
not merely the words “the cost of  application”  but  the  entire  preceding
part of the sentence i.e. “the arrears of rent and interest at six per  cent
per annum on such arrears together with the cost of application”.

The proviso to Section 13(2) (i) of the East Punjab Urban  Rent  Restriction
Act, 1949 casts an obligation on the Controller to  make  an  assessment  of
(i) arrears of rent, (ii) the interest on such arrears, and (iii)  the  cost
of application and then quantify by way of an interim or  provisional  order
the amount which the tenant must  pay  or  tender  on  the  “first  date  of
hearing” after the passing of such order of “assessment” by  the  Controller
so as to satisfy the requirement of the proviso.

Of necessity, “the date of first hearing of the application” would mean  the
date falling after the date of such order by the Controller.

On the failure of the tenant to comply, nothing remains to be  done  and  an
order for eviction shall  follow.   If  the  tenant  makes  compliance,  the
inquiry shall continue for finally adjudicating upon the dispute as  to  the
arrears of rent in the light of the contending pleas raised by the  landlord
and the tenant before the Controller.

If the final adjudication by the Controller be at variance with his  interim
or provisional order passed under the proviso,  one  of  the  following  two
orders may be made depending on the facts situation of a given case. If  the
amount deposited by the tenant is found to be in excess, the Controller  may
direct a refund. If, on the other hand, the amount deposited by  the  tenant
is found to be short or deficient, the Controller  may  pass  a  conditional
order directing the tenant to  place  the  landlord  in  possession  of  the
premises by giving a reasonable time to the tenant for paying  or  tendering
the deficit amount, failing which alone he shall be liable  to  be  evicted.
Compliance shall save him from eviction.

While exercising discretion for  affording  the  tenant  an  opportunity  of
making good the deficit, one of  the  relevant  factors  to  be  taken  into
consideration by the Controller would be, whether the  tenant  has  paid  or
tendered with substantial regularity the rent falling  due  month  by  month
during the pendency of the proceedings”.



21    The decision in Wadhawan (Supra) lays down that under the  proviso  to
clause (i) of sub-section (2) of Section 13  the Rent Controller is  obliged
to assess the arrears of rent, interest and costs of a litigation which  the
tenant must pay on the first date of hearing. If there is a  dispute  raised
about the quantum of the arrears of rent or  about  the  rate  of  rent  the
Controller will initially make a provisional  assessment.   The  provisional
assessment is based on a prima facie view formed by the  Controller  on  the
basis of the pleadings or such other material  as  may  be  available.  Such
amount as determined by the Controller must be paid by  the  tenant  on  the
first date of hearing after the date of the provisional order passed by  the
Controller.  The date of first hearing is the date on which  the  Controller
applies his  mind  to  the  facts  involved  in  the  case.  Once  the  Rent
Controller has made a provisional  assessment  of  the  rent,  interest  and
costs, the tenant is required to pay  or  tender  the  amount  provisionally
assessed on the first date of hearing  of  the  application  for  ejectment.
The provisional adjudication is subject to a subsequent  final  adjudication
by the Rent Controller.  The final adjudication by the Rent  Controller  may
hold that the quantum of arrears as determined  is  (i)  the  same  as  that
which was found due under the provisional order; (ii)  less  than  what  was
determined by the provisional order; or (iii) more than what was held to  be
due and payable under the provisional order.  In the first eventuality,  the
Rent Controller would proceed to terminate the proceedings.  In  the  second
eventuality, the Rent Controller may direct that  the  amount  deposited  in
excess be refunded to the tenant (or adjusted against future payments  due).
 In the third eventuality, the Rent Controller may pass a conditional  order
affording the tenant an opportunity of reasonable time  for  depositing  the
amount (in deficit) failing which the tenant would be liable to be  evicted.
In passing such an order the Rent Controller  furnishes  an  opportunity  to
the tenant to make  good  the  deficit  in  terms  of  the  final  order  of
assessment.  The deposit by the tenant  in  terms  of  the  final  order  of
assessment, within the period fixed by the  Rent  Controller  would  protect
the tenant from the consequence of an order of ejectment.

22    The judgment in Wadhawan (supra)  was  reaffirmed  subsequently  by  a
Bench of three learned Judges of this Court in Vinod Kumar v. Premlata[6].

23    In a subsequent decision of a Bench of two learned  Judges  in  Harjit
Singh Uppal v. Anup Bansal[7] , this Court  considered  the  impact  of  the
statutory right of appeal which is available to  the  tenant  under  Section
15(1)(b).  Section 15(1)(b) is in the following terms :

 “15. Vesting of appellate authority on officers by State Government.-

(1)(a)

(b) Any person aggrieved by an order passed by the  Controller  may,  within
fifteen days from the date of such  order  or  such  longer  period  as  the
appellate authority may allow for reasons to be recorded in writing,  prefer
an appeal in writing to the  appellate  authority  having  jurisdiction.  In
computing the period of fifteen days the time taken to  obtain  a  certified
copy of the order appealed against shall be excluded."



In that case, the landlord who was the  respondent  before  this  Court  had
sued the tenant for eviction on the ground of a default in  the  payment  of
rent.  The Rent Controller made a provisional determination of  the  arrears
of rent together with interest and costs which was directed to be  deposited
by a stipulated date.  The tenant made  an  application  for  recalling  the
order on the ground that the payment which he had made to the  landlord  had
not been considered. The Rent Controller rejected the application and,  upon
the  failure  of  the  tenant  to  comply  with  the  order  of  provisional
assessment, an order of eviction was passed. The tenant preferred an  appeal
under Section 15(1)(b). The appellate  authority  held  that  the  order  of
provisional assessment was liable to be set aside. An order  of  remand  was
passed  by  the  appellate  authority  directing  the  Rent  Controller   to
determine the provisional assessment afresh.  In a revision by the  landlord
before the High Court, a learned single Judge held  that  since  the  tenant
had not availed of the remedy to  challenge  the  order  fixing  provisional
rent during the period between the date of the order and the date fixed  for
payment,  the  Rent  Controller  had  no  choice  but  to  order   eviction.
Accordingly, the High Court while allowing the revision petition  set  aside
the order of the appellate authority and  restored  the  order  of  eviction
passed by the Rent Controller. This Court held  in  appeal  that  while  the
determination of provisional rent by the Rent Controller is foundational  to
an order of eviction, where the tenant has failed to comply with  the  order
of provisional assessment, nevertheless such an order  is  interlocutory  in
the sense it does not determine the principal matter finally.  In  the  view
of this Court, though the tenant  may  not  have  challenged  a  provisional
order of assessment at the interlocutory stage, there is  no  impediment  to
lay a challenge to the provisional  assessment  in  an  appeal  against  the
final order :

“24. We find no impediment for  an  aggrieved  person,  on  reading  Section
15(1) (b) of the 1949 Rent Act, that an interlocutory order  which  had  not
been appealed though an appeal lay, could not be  challenged  in  an  appeal
from the final order.  In our opinion, Section 15(1) (b) does  not  make  it
imperative upon the person aggrieved to appeal from an  interlocutory  order
and, if he does not do so, his right gets forfeited when he  challenges  the
final order.

25.   It is true that an order of eviction follows as a matter of course  if
there is non-compliance with the order determining the provisional rent  but
when tenant challenges the order of eviction  and  therein  also  challenges
the order of fixation of provisional rent – the order of  eviction,  in  its
nature,  being  dependant  on  the  correctness  of  the  order  fixing  the
provisional rent and there being no indication to the  contrary  in  Section
15(1) (b) – it must be open to  the  appellate  authority  to  go  into  the
correctness of such provisional order when put in issue.”



24    The position that emerges in law is that once the Rent Controller  has
made a provisional assessment of the arrears of rent,  interest  and  costs,
the tenant must deposit the amount so determined on  the  first  hearing  of
the application for ejectment.  A tenant who does  so  would  be  deemed  to
have duly paid or tendered the  rent  within  the  time  prescribed  by  the
substantive provision of Section 13(2)(i).  A tenant failing to comply  with
the terms of an order of provisional assessment, cannot thereafter avail  of
the concession extended to a  tenant,  through  the  proviso  under  Section
13(2)(i), and will be liable to  suffer  an  order  of  eviction.   However,
having suffered the order  of  eviction,  the  tenant  is  entitled  to  the
statutory remedy of an appeal under Section 15(1)(b).  The determination  of
a provisional assessment being the  foundation  of  the  order  of  eviction
(which flows from  the  non-compliance  of  the  terms  of  the  provisional
assessment), the tenant in an  appeal  against  the  order  of  eviction  is
entitled  to  question  the  correctness  of  the   order   of   provisional
assessment. This is available even after  an  order  of  eviction  has  been
passed. Harjit Singh Uppal (supra) holds that the right is not lost upon  an
order of eviction being passed.

25    In the present case, the petition for eviction that was filed  by  the
appellant proceeded on the basis that the rent had remained in arrears  from
1 November 2005.  The averment in the petition was to the  following  effect
:

“(a) That the Respondents have  neither  paid  for  tendered  the  due  rent
w.e.f. 01.11.2005 to 31.05.2006 @ Rs.25,000/-  p.m.  and  w.e.f.  01.06.2006
onwards at the rate of Rs.28,000/- p.m.  Even  the  cheques  issued  by  the
Respondents in favour of the petitioner have been dishonoured.”



26    The Rent Controller by his order dated 14 November 2007  required  the
respondent to deposit the arrears of rent with effect from 1 June 2005  till
the filing of the petition and thereafter till the passing of the  order  at
the rate of Rupees 19,000 per annum together with interest  at  6  per  cent
per annum and costs quantified at Rupees 500 on 14  December  2007.   Though
the rent was directed to be deposited with effect from 1 June 2005 (and  not
1 November 2005) it must be noted that the tenant  got  the  benefit  of  an
order for depositing only Rupees19,000 per  month  (as  against  the  agreed
rent of Rupees 25,000 per month till 31 May  2006,  and  Rupees  28,000  per
month thereafter). The Respondents did not deposit anything – not  even  the
admitted amount – within the period fixed. In the course of the  hearing  of
the Civil Revision, the appellant conceded before the High  Court  that  the
determination of arrears with effect from 1 June 2005  was  erroneous  since
the Rent Controller ought  to  have  determined  the  arrears  only  from  1
November 2005.  The High Court has recorded the concession in the  following
observations :

“….The counsel  for  the  landlord  is  prepared  to  admit  that  the  Rent
Controller  had  made  a  mistake  in  making  a  reference  that  the  Rent
determined by it namely Rs.19,000/- to be payable from 01.06.2005  and  that
it should have been only from 01.11.2005.”



On this foundation, the High Court observed thus :

“….. I have already observed that  the  landlord’s  counsel  does  not  deny
before me that the direction to pay rent from 01.06.2005 was a mistake.  The
determination of provisional rent could not be merely with reference to  the
rate of rent but also the quantum of  rent.  The  quantum  of  rent  by  its
reference to a period when there was no default,  was  therefore,  in  error
and the correctness of such finding was surely susceptible for  a  challenge
to Appellate Forum. The Appellate Authority ought to have seen  that  if  it
was admitted that the tenant  was  in  default  only  from  01.11.2005,  the
payment of arrears for 30 months was  mistake,  it  was  liable  to  be  set
aside. That had the consequential  relevance  for  also  setting  aside  the
order of ejectment that was passed for alleged non-compliance of  the  order
which was erroneous.  If the first order  of  determination  of  provisional
rent was erroneous and liable to be set aside, the  consequential  order  of
ejectment for non-compliance was also bound to be set aside.”



Was the High Court correct in taking this view?



27    One line of interpretation for construing the  provisions  of  Section
13  is  that  which  has  been  suggested  on  behalf  of  the  respondents.
According to this interpretation (which seeks to draw  sustenance  from  the
observations in Harjit Singh Uppal (supra)), the tenant would be at  liberty
to ignore the order of provisional assessment passed by the Rent  Controller
and upon the passing of an order of eviction for non-compliance,  to  pursue
the remedy of an appeal under Section 15(1)(b).  According to this  line  of
interpretation,  in  the  appeal  under  Section  15(1)(b)  the  tenant  may
demonstrate that the order of provisional assessment was erroneous and as  a
consequence thereof, the order of eviction must fail.  The issue is  whether
such an interpretation must be adopted invariably  in  all  cases.   In  our
view, the interpretation of the provisions of Section 13 must bring about  a
just balance between the rights of the tenant and  those  of  the  landlord.
On the one hand, there is a need for protecting  the  tenant  against  being
subjected to a disproportionate demand by the landlord and of  suffering  in
consequence, an unjust decree of eviction.  On the other  hand  there  is  a
need to protect the  landlord  against  the  tactics  which  a  recalcitrant
tenant may adopt by deploying every gambit in the rule book  to  defeat  the
just claims of the landlord to the payment of rent.  The  judgment  rendered
by this Court in Wadhawan (supra) and reaffirmed by a Bench of three  Judges
in Vinod Kumar (supra) brings  about  a  just  balance  by  interposing  the
function of the Rent Controller who determines on a  provisional  basis  the
arrears of rent, interest and costs.  This determination ensures on the  one
hand that while the tenant is protected against  an  unjust  demand  by  the
landlord, the landlord in turn is not deprived of the  just  dues  owing  on
account of the use and occupation of the property  by  the  tenant.  Upon  a
provisional determination being made by  the  Rent  Controller,  the  tenant
must deposit the  amount  of  the  demand,  on  the  first  hearing  of  the
application for ejectment. What needs to  be  kept  in  mind  is,  that  the
proviso under 13(2) (i) is a concession, and also, that it  is  based  on  a
provisional “assessment”. A tenant admitting  to  be  in  arrears  of  rent,
within the parameters provided for under  Section  13(2)(i),  is  liable  to
eviction  forthwith.  To  avail   of   the   concession,   the   provisional
“assessment”, must be complied with. If the tenant does so  the  payment  is
deemed to have been made within time.  If the tenant fails to do  that,  the
Rent Controller is empowered to pass a decree for eviction.  The  manner  in
which a wrongful provisional “assessment” will be remedied  have  been  laid
down in Wadhawan and Vinod Kumar (supra). The  tenant  upon  complying  with
the order of the Rent Controller is not left  without  a  remedy.  When  the
Rent Controller  subsequently  makes  a  final  determination  of  the  rent
payable, if it is found that the tenant has paid an amount  in  excess,  the
Rent Controller can issue directions for refund or adjustment, as  the  case
may be. A tenant who complies with an order  of  provisional  assessment  by
the Rent Controller is to be protected against eviction.  At the same  time,
the tenant is entitled to pursue the challenge to  the  assessment  made  by
the  Rent  Controller.   A  tenant  who  fails  to  observe  the  order   of
provisional assessment will not be protected against an order  of  eviction.
That will, however, not deprive the tenant of a right of appeal, as held  in
Harjit Singh Uppal (supra).

28    The dispute which the tenant seeks to raise  in  regard  to  the  rent
which is payable may straddle several aspects.  There may be  a  dispute  of
the rate of rent. The period over which the rent has not been  paid  may  be
in dispute.  Where the tenant has admitted that the rent is due and  payable
at least for a certain period, it is necessary that the Court  should  adopt
an interpretation which does not permit the tenant to defeat the just  claim
of the landlord. The present case is an object example of such a  situation.
The lease agreement between the  parties  provided  for  a  rent  of  Rupees
25,000 for the first year of the lease ending on 31 May 2006, and which  was
to stand enhanced to Rupees 28,000 for the remaining two  years.   The  Rent
Controller directed the tenant to deposit only an amount  of  Rupees  19,000
(representing the component of the  basic  rent  for  the  first  year,  the
remaining amount of Rupees 6,000  being  towards  furniture  and  fixtures).
After the Rent Controller made his provisional determination on 14  November
2007  the  tenant  sought  to  dispute  essentially   that   part   of   the
determination by which the Rent Controller had  fixed  the  amount  due  and
payable from 1 June 2005.  The prayers made by  the  tenant  in  the  review
petition would indicate that even according to the tenant, rent was due  and
payable at least for the  duration  which  was  referred  to  therein.   The
tenant was granted, in the appeal filed against the  order  of  eviction,  a
conditional stay  requiring  the  tenant  to  deposit  the  arrears  and  to
continue to pay the rent for the subsequent period on a monthly basis.   The
tenant failed to comply with this order.  An  application  for  modification
and for extension of time was moved which  was  rejected  by  the  appellate
Court. The civil revision against the order of rejection was also  dismissed
by the High Court. The appellant has provided in the special leave  petition
a table setting out the cheques that  were  issued  by  the  respondents  in
favour of the appellant both towards the  rent  and  towards  furniture  and
fixtures which were dishonoured. This is extracted below :

 Cheques issued by the Respondents in favour of Petitioner Dalip Kaur, which
                              were dishonoured

| Sl.No.    |Cheque No. |Amount     |Dated      |Bank       |Reason for |
|           |           |(Rs.)      |           |           |dishonour  |
|1          |055192     |19,000/-   |7.11.2005  |Bank of    |Insufficien|
|           |           |           |           |Punjab     |t          |
|           |           |           |           |           |Funds      |
|2          |055194     |19,000/-   |7.12.2005  | -do-      |-do-       |
|3          |055196     |19,000/-   |7.1.2006   |-do-       |-do-       |
|4          |055198     |19,000/-   |7.2.2006   |-do-       |-do-       |
|5          |055200     |19,000/-   |7.3.2006   |-do-       |-do-       |
|6          |069589     |19,000/-   |7.4.2006   |-do-       |-do-       |
|7          |069404     |19,000/-   |7.5.2006   |-do-       |-do-       |
|8          |069448     |21,000/-   |7.3.2008   |Bank of    |-do-       |
|           |           |           |           |Punjab/    |           |
|           |           |           |           |Centurion  |           |
|           |           |           |           |Bank       |           |
|9          |069450     | -do-      |7.4.2008   |           |-do-       |
|10         |069581     |-do-       |7.7.2008   |           |-do-       |








 Cheques issued by the Respondents towards furnitures and fixtures in favour
               of Pushp Roop Singh Brar which were dishonoured

| Sl.No.   |Cheque No.|Amount    |Dated     |Bank         |Reason for |
|          |          |(Rs.)     |          |             |dishonour  |
|1         |069449    |7,000/-   |7.3.2008  |Bank of      |Insufficien|
|          |          |          |          |Punjab/HDFC  |t Funds    |
|          |          |          |          |Bank         |           |
|2.        |069576    |7,000/-   |7.4.2008  | -do-        | -do-      |
|3.        |069582    |7,000/-   |7.7.2008  | -do-        |-do-       |


The appellant was constrained to file a complaint under Section 138  of  the
Negotiable Instruments Act, 1881.  She is a widow who has been made  to  run
from pillar to post to secure the just payment of  dues  legitimately  owing
to her. The respondents are facing trial and have been granted bail  by  the
CJM, Ludhiana. The conduct of  the  respondents  has  been  noticed  in  the
judgment of the High Court dated 31 March 2008 where the High Court  records
that :

“….the petitioners admitted the fact  that  they  were  unable  to  pay  the
arrears of rent and sought one month’s more time to arrange the money.”



The High Court further observed as follows :

“As the  facts  would  speak  for  themselves,  the  petitioners  have  been
adopting one or the other delaying tactics in order to wriggle out of  their
liability to pay the arrears of rent. Firstly,  they  contended  that  since
the arrears of rent  were  demanded  by  the  respondent  with  effect  from
1.11.2005, they could not be asked by the  Rent  Controller  to  tender  the
same with effect from 1.6.2005.

Be that as it  may,  the  Appellate  Authority  vide  order  dated  7.1.2008
granted them stay and permitted the petitioners to pay  the  rent  within  a
period of one month. Had there been any  bona  fide  intention  to  pay  the
rent, the petitioners could deposit the  same  without  prejudice  to  their
rights and any excess payment, if any, could very well be  adjusted  against
the future rent. However, instead of depositing the arrears  of  rent,  they
sought extension of time and wanted to deposit only part of the  arrears  of
rent.

If one reads the application moved  by  the  petitioners  for  extension  of
time, it can be safely inferred that before the  Appellate  Authority,  they
coined a new objection against payment of rent for the subsequent period  by
7th of every calendar month. The petitioners presumably  wanted  to  suggest
that they could be directed to pay the arrears of rent till  the  filing  of
the ejectment petition only and not for the subsequent period.

In these circumstances when either the petitioners are  unable  to  pay  the
rent due to lack of funds or they deliberately don’t want to pay  the  same,
no case to interfere with the impugned orders in exercise of the  revisional
jurisdiction of this Court is made out.”



The facts before the Court leave  no  manner  of  doubt  that  there  was  a
stubborn and steadfast unwillingness on the part of  the  tenant  to  comply
with the order passed by the Rent Controller even  to  the  extent  of  non-
deposit of rent for  the  period   for  which  it  was  admittedly  due  and
payable.  The tenant even went to the extent of claiming  that  a  direction
could have only been issued for the deposit of the arrears and not  for  the
payment of the rent for subsequent  months  as  directed  by  the  appellate
court as  a  condition  for  the  grant  of  stay.  Accepting  the  line  of
interpretation which has been suggested by the respondents would lead  to  a
situation where, though the rate of rent is not in dispute  and  the  tenant
admits that rent is due and payable for a certain duration  of  time  (while
disputing  the  quantum  of  arrears)  the  landlord  in  pursuance   of   a
determination made on a provisional basis by the Rent  Controller  would  be
deprived of the rent due and payable, while the tenant  takes  a  chance  of
being able to demonstrate in the course of an appeal against  the  order  of
eviction that the initial determination for a certain  part  of  the  period
was not payable. In our view such an interpretation would defeat the  object
and purpose of Section 13 and the rationale for the decision of  this  Court
in Wadhawan (supra) which has brought about a balance between the rights  of
the landlord and the tenant. If the  respondents  intended  to  dispute  the
claim  of  arrears  for  a  specified  period,  there  was  no   reason   or
justification for them not to deposit the rent.  It  needs  to  be  kept  in
mind, that the legislative  concession,  extended  to  tenants  through  the
proviso under Section 13(2)(i), is available conditionally. To  be  entitled
to be saved against eviction, the tenant must satisfy  the  conditions  laid
down. To  understand  the  words  “assessed  by  the  Rent  Controller”,  as
“correctly assessed”, would not be proper.  Arrears  payable  by  a  tenant,
would be correctly assessed only after evidence is recorded  and  concluded.
The instant assessment is clearly  provisional.  It  is  made,  even  before
evidence has commenced to be recorded. Therefore, it would  be  improper  to
understand and extend to such assessment, any further  meaning.  Every  kind
of excuse was made by the tenant for not paying the rent  due  and  payable.
As we have set out earlier the cheques that were  issued  to  the  appellant
were dishonoured.  In this view of the matter, the tenant  cannot  have  the
benefit of the observations contained in  the  judgment  of  this  Court  in
Harjit Singh Uppal (supra) for the simple reason that they  would  not  come
to the aid of a tenant who has not  deposited  even  the  admitted  dues  in
pursuance of the determination which has been made by the  Rent  Controller,
even though the proviso extends the concession, only  to  tenants  who  have
complied.  The  High  Court  while  determining  whether   the   provisional
determination of the Rent Controller was  correct  or  otherwise  could  not
have ignored the position that while the rent payable was Rupees 25,000  per
month till 31 May 2006 and Rupees 28,000 per month from  1  June  2006,  the
Rent Controller had directed a deposit only of Rupees 19,000 per month.  The
Respondents deposited nothing within the period fixed and a deposit made  in
May 2008 would not enure to their benefit.

29    For these reasons, we are of the view that the High  Court  fell  into
error in allowing the revision application against the  judgment  and  order
of the appellate authority and in setting aside the order of  eviction.  The
Civil Revision filed by the respondents was liable to be  dismissed  and  we
order accordingly.

30    We accordingly allow the appeal and set aside the  impugned  order  of
the High Court dated 29 April 2015. The order  of  eviction  passed  by  the
Rent Controller as confirmed by the appellate  authority  shall  accordingly
stand restored.

31    The respondents shall pay costs to the appellant quantified at  Rupees
50,000.

                              ...........................................CJI
                                                  [JAGDISH   SINGH   KHEHAR]



                             ….............................................J
                                                [Dr  D Y  CHANDRACHUD]
New Delhi;
April 11, 2017
ITEM NO.1A                 COURT NO.1               SECTION IVB
(For Judgment)

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

C.A.No.5129/2017  @  Petition(s)   for   Special   Leave   to   Appeal   (C)
No(s).24952/2015

DALIP     KAUR     BRAR                                         Appellant(s)


                                VERSUS

M/S. GURU GRANTH SAHIB SEWA MISSION
(REGD.) AND ANR.                                         Respondent(s)

Date : 11/04/2017 This appeal was called on for judgment today.

For Appellant(s)  Mr.Sudhir Walia, Adv.
                     Mr. Abhishek Atrey, Adv.

For Respondent(s)       Mr.Rajesh Sharma, Adv.
                     Ms. Shalu Sharma, Adv.


            Hon'ble Dr.Justice D.Y.Chandrachud pronounced  the  judgment  of
the Bench comprising Hon'ble the Chief Justice of India and His Lordship.
            Leave granted.
            The appeal is allowed in terms  of  the  signed  judgment.   The
order of eviction  passed  by  the  Rent  Controller  as  confirmed  by  the
appellate authority shall accordingly stand restored.
            The respondents shall pay costs to the appellant  quantified  at
Rupees 50,000.


(SATISH KUMAR YADAV)                       (RENUKA SADANA)
    AR-CUM-PS                              ASSISTANT REGISTRAR
       (Signed reportable judgment is placed on the file)
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[1]

      [2] the Act
[3]

      [4]RA 1948 of 2008
[5]   [6] (1999) 5 SCC 590
[7]   [8] (2012) 12 SCC 554
[9]   [10] (2002)5 SCC 440
[11]  [12] (2003) 11 SCC 397
[13]  [14] (2011)11 SCC 672


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|REPORTABLE     |