A. East Punjab Urban Rent Restriction Act, 1949 -- Section 13(2)(i) – Arrears of Rent – Tender of -- First day of appearance -- The expression "first hearing" does not mean 'the date fixed for return of summons or the returnable date which is the day of appearance' before the court of the parties -- Day of first hearing is the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken.

The contention of the tenants that the arrears of rent were duly deposited within the specified period from the first effective ‘date of hearing' also gets support from the decision of this Court in the case of Sham Lal V/s Atma Nand Jain 1987 (1) SCC 222. In that case, the words `first hearing of the application,' as used in Section 13(2)(i) of East Punjab Urban Rent Restriction Act, came up for interpretation. It was held that to promote object of the legislation contained in the provisions, the expression used therein has to be construed reasonably. The use of the expression `first hearing' is held not to mean `the date fixed for return of summons or the returnable date which is the day of appearance' before the court of the parties. The words `the first day of hearing' as meaning not the day for the return of the summons or the returnable day, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken".

[Para 11]

B. East Punjab Urban Rent Restriction Act, 1949, Section 13(2)(i), 15- - Civil Procedure Code, Section 115, Order 15, Rule 5 – Striking Off Defence -- Delay in deposit of rent -- Revisional Jurisdiction -- It is not obligatory for court to strike off defence in every case -- Court has discretion in the matter and the power to strike off the defence is to be exercised with due regard to the facts and circumstances of each case -- Trial Court not striking off defence exercising its discretion - High Court not justified to interfere in discretion in revisional jurisdiction under section 115 of the Civil Procedure Code, 1908.

It is not obligatory for the court in every case to strike off defence only because there is delay in deposit of the arrears of rent. The court has discretion in the matter and the power to strike off the defence is to be exercised with due regard to the facts and circumstances of each case.

Rent Controller had fixed a fair rent for the suit premises and the arrears of rent at that rate were deposited by the tenants in the State Bank of Patiala for payment to the landlords. It finds that the tenants had not withheld payment of rent arbitrarily. There was no lack of bona fides on their part. It is in these circumstances that the trial court refused to strike off the defence and on consideration of the representation of the tenants accepted the deposit of arrears of rent.

Since the trial court had exercised its jurisdiction lawfully by refusing to strike off defence and accepting the deposit of arrears of rent, the High Court could not justifiably interfere with the same in exercise of its revisional jurisdiction under section 115 of the Code.

(Paras 9,10,13)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Section 13(2)(v) – Ceased to occupy – Evidence – Onus of Proof -- Premises remained without electricity for continuous period of four months – Landlord led reliable evidence, even through oral, that the tenant has ceased to occupy the shop – Burdon of proof shifted to tenant -- The positive evidence to show the contrary could be led by only the tenant, it is not possible for the landlord to led evidence in negative – No positive evidence led by the tenant – Eviction order upheld.

While passing an order of eviction, reliance is not being placed only upon the fact that the disputed premises had remained without any electricity for August, September, October and November, 1984 but also upon the statements of PW 1, PW 2 and PW 3. That apart to, a specific question put to learned counsel representing the petitioner as to whether the petitioner led any evidence to show that any business had since been transacted in the premises in dispute, which, concededly is a shop, the forthright and candid answer is “No”. In the kind of case in hand, the positive evidence could be led only by the tenant. In other words, if the shop had been occupied or the tenant had not ceased to occupy it, he had to lead positive evidence to show the contrary. Burden, that is upon the landlord to prove the non-occupancy of premises, is discharged, when he leads reliable evidence, even though oral, that the tenant had ceased to occupy the shop. It is not possible for landlord to lead evidence in negative. No merits in the appeal, the same is dismissed.

(Paras 4, 5)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Sections 13(2)(v) – Ceased to occupy – Tenant kept the shop in question closed for more than 4 months -- Tenant’s plea that shop remained closed due to his illness – This plea was not taken at the earlier stage – Finding of fact recorded against tenant cannot be disturbed.

Shop in question had been kept locked since the year 1987 up to the date of the filing of the ejectment petition. Arguments that the shop had been kept closed for the reasons that the tenant had been ill and had been admitted to hospital and, had therefore, not been able to conduct his business during that period. This particular point has not been raised by the tenant at any stage. On the contrary it has come in the evidence of the landlord/respondent that the shop appeared to have been kept closed for a period of four months in the year 1987 for no apparent reason. The finding of fact recorded against the tenant, thus, cannot be disturbed. The petition is accordingly dismissed.

(Para 5)

Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 1(3), 13 -- Transfer of Property Act, Section 106 -- Ejectment -- Subsequent events -- Change in law -- Plaintiff-Appellant filed suit for possession after serving a notice under Section 106 of Transfer of Property Act for termination of tenancy -- Suit was decreed by trial Court -- But when appeal was pending, Haryana Rent Act became applicable as Town Kharkhoda was declared a notified Area in 1986 -- Held that ejectment decree though passed before enforcement of Rent Act was not executable due to subsequent events.

Full Bench of this Court in Sawan Ram V/s Gobinda Ram and another, 1980(1) Rent Control Reports 21 has held that the intention of the Legislature while enacting the Rent Act was to exclude both the jurisdiction of the Civil Courts as also the application of general law of landlord and tenant. It has been further held that the earlier civil Court decree would be rendered inexecutable and the tenant should not be evicted thereunder.

Subsequent applicability of the Rent Act on account of declaration of urban area would render the decree of the civil Court inexecutable.

In Beg Raj Singh V/s State of UP and others 2003(1)SCC 726, Supreme Court has held that a petitioner though entitled in law may yet be denied relief in equity because of subsequent or intervening events. One of the circumstances on which relief can be denied is that the relief to which the petitioner is held entitled can be rendered incapable of being granted by change of law.

In terms of the provisions of Section 13 of the Rent Act, the decree passed by the Civil Court cannot be executed. Since the decree cannot be executed, the Courts shall not pass the futile decree as held by the Full Bench in Sawan Ram’s case.

(Paras 13,14,17,18)

Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13(2)(i) – Eviction of tenant -- Arrears of rent – Provisional assessment of rent – First date of hearing -- Decision in Rakesh Wadhawan’s case correctly lays down the law, re-affirmed -- Interpretation placed by this Court in Rakesh Wadhawan’s case 2002 (5) SCC 440 = (2002) Law Today Live Doc. Id. 16854 on Section 13(2)(i) with the proviso in the Punjab Act applies for interpreting Section 13(2)(i) and the proviso as contained in the Haryana Act.

(Para 9)

Haryana Urban (Control of Rent and Eviction) Act, 1973 – Section 4 (1) (2) – Fair rent – Agreement of lease period expired on 31.12.1969 – The application for determination of fair rent was filed on 20.12.1980 -- There was no subsisting agreement between the parties when the application for determination of fair rent had been filed on 20.12.1980 -- The approach of both the Courts below in adopting the rent on the basis of agreement which was subsisting upto 31.12.1969 as the basic rent was totally erroneous.

 (Para 4)