1. A petition for eviction of tenant, on the ground available under Clause (i) of Sub-section (2) of Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act', for short) filed on 7.5.1980, was dismissed by the controller. The appellate authority allowed the appeal preferred by the landlord and directed the tenant to put the landlord in possession of tenancy premises. On a revision preferred by the tenant, the High Court has set aside the order passed by the appellate authority and restored the order of controller, though for reason at variance with the one assigned by the latter.
2. The facts in nutshell. The suit premises were initially let out by the landlord to the tenant on a monthly rent of Rs. 25/-. The tenant was in arrears and proceedings for eviction were initiated. On 2.11.1973, there was a compromise arrived at between the parties. One of the terms of the compromise was that with effect from the date of compromise, the tenant shall be liable to pay rent at the rate of Rs. 35/- per month. With other terms of compromise, we are not concerned. The proceedings for eviction were disposed of in terms of the compromise.
3. On 24.7.1974, the landlord initiated second round of proceedings for eviction, alleging the tenant to be arrears of rent with effect from 1.10.1973. Strangely enough, in spite of the compromise dated 2.11.1973, the landlord chose to lay a claim for recovery of rent at the rate of Rs. 25/- per month only. The tenant offered payment of rent at the rate of Rs. 35/- per month and tendered the same. However, the landlord took a stand that he would accept the rent only at the rate of Rs. 25/- and declined the tenant's tender of rent at the rate of Rs. 35/-per month. On 30.9.1978, the second application for eviction was directed to be dismissed by the controller.
4. On 7.5.1980, the landlord filed a third application for eviction under Section 13 (2) (i) of the Act. In this application, the arrears of rent claimed by the landlord were at the rate of Rs. 10/- per month for the period from 1.12.1973 to 30.11.1977. Admittedly, for this period the tenant had tendered rent at the rate of Rs. 35/- per month but the landlord had himself accepted the tender in part, i.e., at the rate of Rs. 25/- per month and declined to accept the balance monthly rent at the rate of Rs. 10/- per month. In addition, the landlord also claimed arrears of rent at the rate of Rs. 35/- per month for the succeeding period, i.e., from 1.12.1977 to 30.4.1980. On the first date of hearing, the tenant tendered rent at the rate of Rs. 35/- for the period from 1.12.1977 to 30.4.1980, as contemplated by proviso to Clause (i) of Sub-section (2) of Section 13 of the Act. The controller dismissed the application for eviction on the ground that in so far as the period upto 30.11.1977 was concerned, the claim was barred by Order 2, Rule 2 of the CPC. The High Court, while restoring the controller's order, rejecting the prayer for eviction of the tenant, has assigned a different reason. In the opinion of the High Court, the landlord was entitled to recover rent only at the rate of Rs. 25/- per month and in view of the landlord's conduct, as disclosed during the proceedings initiated on second application for eviction, it will be assumed that the landlord had relinquished his right to recover rent at the rate of Rs. 35/- per month, and, therefore, the agreed rate of rent would be deemed to be Rs. 25/- per month only.
5. Learned counsel for the landlord-appellant has submitted, that the High Court is not right in holding the agreed rate of rent to be Rs. 25/- only and not Rs. 35/- per month. He has submitted that the rate of rent was concluded by the terms of the compromise dated 2.11.1973 and even if the landlord had chosen for some time not to accept the rent at the rate of Rs. 35/-and chose to accept the same at the rate of Rs. 25/- per month only, his right to recover the shortage in rent by calculating at the rate of Rs. 35/- per month cannot be said to have been foregone by him. He further submitted that once it is held that the landlord has right to recover rent at the rate of Rs. 35/- per month, then the tenant shall be deemed to have not complied with his obligation cast on him by the proviso to Clause (i) of Sub-section (2) of Section 13 of the Act to the extent to which he did not pay or tender in the third proceedings, i.e., the present proceedings, arrears of rent at the rate of Rs. 10/- per month for the period from 1.12.1973 to 30.11.1977.
6. So far as the finding of the High Court regarding the rate of rent is concerned, we find merit in the submission made by the learned counsel for the appellant.
In view of express terms of the compromise dated 2.11.1973 and the willingness on the part of the tenant to pay rent at the rate of Rs. 35/- per month, the High Court was not justified in holding the agreed rate of rent at Rs. 25/- only, merely because in the second round of proceedings the landlord had chosen to accept the rent at the rate of Rs. 25/-, although the tenant had offered to pay the rent at the rate of Rs. 35/- consistently with the terms of the compromise dated 2.11.1973. The finding of the High Court, to the extent of rate of rent, is not correct and is, therefore, set aside.
7. The other question is: whether the landlord-appellant is entitled to an order of recovery of possession?
In order to give a cause of action to the landlord to seek eviction of his tenant by filing an application before the controller, it must be alleged and proved that the tenant has not paid or tendered the rent due to him. It is an admitted case of the parties that prior to the filing of the third application, rent was tendered by the tenant at the rate of Rs. 35/- but the landlord chose to accept the tender in part, only to the extent of Rs. 25/- per month. It cannot be said that there was a default on the part of the tenant. He had tendered the rent and if that be so, then the cause of action for initiating the proceedings itself did not arise to the landlord. So far as the arrears of rent for the period from 1.12.1973 to 30.11.1977 are concerned, the proviso to Clause (i) of Sub-section (2) of Section 13 was complied with. The landlord cannot be allowed to take advantage of his own wrong committed by refusing the tender of rent by the tenant in its entirety. The claim for eviction has to be refused to the landlord by a combined effect of two factors: partly, because there was no cause of action accrued to the landlord and partly because the tenant complied with proviso to Clause (i) of Sub-section (2) of Section 13.
8. For the foregoing reasons, the appeal is allowed in part. Though the rate of rent is held to be Rs. 35/- per month, the order of the High Court rejecting the prayer for eviction of the tenant is upheld for the reason stated hereinabove. No order as to costs.