Project

On
Rent Law
Topic: - Eviction on grounds of non payment
of rent

Submitted To: -

Submitted By: -

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 hillstation, 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 subparagraphs 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 subparagraph (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 'nonobstente, 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 Murrays Dictionary. An extract from an early
English case has been used in Strouds 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 Whartons 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 Websters 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 exparte 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 nonpayment 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
landlords 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 mortgagees interest in the property. It was
observed that the termination of mortgagees 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 mortgagees
interest. The derivative title from him must ordinarily come to an end
with the termination of the mortgagees 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
mortgagees 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 mortgagees 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 ofthe
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 Vadhwas 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 tenants 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 landlordss 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
tenants 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 depositchallan 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 landlords 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 Kaurs 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 nonpayment 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 locusstandi 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 tenants 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 landlords 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.