Judgment:
S.K. Jain, J.
1. Challenge in revision here is to the order of ejectment passed against the petitioner tenant on the ground of non payment of arrears of rent A reference to the material on record shows that on 21.1.1982 Arjun Dass filed a petition for the ejectment against his tenant Ram Kishan, the respondent here, inter alia on the ground of non payment of arrears of rent with effect from 1.6.1981 to 31.5.1982 amounting to Rs. 4051/-. Notice of this petition was served on the respondent for 16.3.1982 which was the date fixed for hearing. The respondent did not appear inspite of service and was consequently ordered to be proceeded against ex-parte. May 24, 1982 was the date fixed for recording of ex-parte evidence of the landlord Arjun Dass but in the later part of the day respondent appeared and filed an application seeking the setting-aside of the ex-parte order passed against him on that very day in the forenoon. This application was eventually allowed by the Rent Controller and the ex-parte order was set aside on 6.12.1982. On that very day, the Rent Controller assessed interest at Rs. 500/- and costs at Rs. 40/- and the case was adjourned to 17.12.1982 for tendering the amount of arrears of rent alongwith interest and costs as assessed above and also for filing written statement. On 17.12.1982, the said amount was tendered and was accepted by the landlord under protest. After the written statement was filed, besides others, following issue No. 1 was framed : -
Issue No. 1 :- 'Whether tender dated 17.12.1982 is valid tender, if not to what effect.'
This issue was decided in favour of the tenant and the petition was dismissed by the learned Rent Controller vide his order dated 2.5.1984.
2. An appeal by the landlord was also dismissed by the Appellate Authority on 2.6. 1986, hence, this revision.
3. Learned counsel for the petitioner (landlord) has focussed his attention to the subject matter of issue No. 1, on which a finding adverse to the landlord has been recorded by both the Courts below, holding that the tender made on 17th December, 1982, was a valid tender. It is submitted that the Appellate Authority was in error in distinguishing the facts of the present case for extracting the same for the ambit of the law settled even by this Court in earlier authorities.
4. Reference has been made in this behalf to Vinod Kumar v. Hurbans Singh Azad, (1977) 79 P. L. R. 144 (F.B.) Manohar Lal Chopra v. Balraj Arora, (1953)55 P. L R. 295. Meja Singh v. Karan Singh, (198-1) 83 P. L. R. 386. and Radha Kishan alias Radhey Sham Raj v. Angoori Devi, (1986-2) 90 P. L. R. 649.
5. Learned single Judge of this Court was seized of the very point under consideration now, as it was also a case where an ex parte order had been set aside. The observations of Soni, J. in Manohar Lal Chopra v. Balraj Arora's, case pertinent to the point under consideration are best noticed verbatim.
'As I have said before so far as the payment of arrears of rent on the first day of hearing are concerned, the matter is concluded by the provisions of Rule 7 of Order 9. If the Court sets aside the ex-parte proceedings, it means that the Court accepts the defendant's excuse for not being able to be present at the hearing. The result of the Court's acceptance is that the defendant is put in the same position as if he had actually appeared on the first day of hearing and on the first day of hearing he did bring the money. But even if he did not, if his excuse is accepted that he was misled by the plaintiff and therefore was not able to come, his tender of money to the court immediately is a proper tender on the first day of hearing'.
6. Harbans Singh J. (as he then was) draw assistance from the above observations while holding in Dwarka Devi v. Hans Raj, (1963) 65 P. L. R. 705. that the deposit made on the date on which ex-parte order was set aside, would be treated as if the same was made on the first date of hearing fixed for appearance.
7. A Full Bench of this Court in Vinod Kumar v. Harbams Singh Azad's case, while noticing the above-said observations held as under:-
xx xx xx
'At the time when the tenant approached the Rent Controller with an application far setting aside the ex-parte order, he was obviously aware of the finding 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 of rent etc. on the day when the proceedings were restored'.
8. A Division Bench of this Court was closeted with a similar situation in Meja Singh v. Karan Singh, (1981) 83 P. L. R. 386 and drew a conclusion in the following terms :-
In a case where on an application by the landlord for eviction of the tenant on the ground of default in payment of rent, an ex-parte order for eviction is passed and later on at the instance of the tenant the ex-parte order is set-aside, the date on which the order setting aside the ex-parte order is pronounced would be the date of first hearing of the application for eviction within Section 13(2) (i) Proviso ok which if the tenant were to tender the arrears of rent alongwith interest and costs he could save his eviction.
9. Identical question came up for consideration before their Lordship's of the Supreme Court in Sham Lal v. Atma Nand Jain Sabha Registered, Ludhiana, (1987-1) 91 P. L. R. 1 (S.C.) and it was held that the words the 'first hearing of the application' have to be interpreted in a manner which promote the object of this beneficial legislation. Viewed from this aspect we cannot but hold that the words 'first bearing of the application' as used in Proviso (i) to Sub-section (2) of Section 13 of the Act does not mean the day fixed for return of the summons or the returnable day but the day when the Court applies its mind to the case.
10. The above view was followed by J. V. Gupta, J. (as he then was) in M/s. Kishori Lal Prem Nath v. Kanwar Lal and Ors., (1989-1) 95 P. L. R. 522,
11. In view of the above discussion only irresistible conclusion is that the 'first date of hearing' in the instant case was 6.12 1982 when the ex-parte order was set aside and interest and costs were assessed by the Rent Controller.
12. It being a case under the Haryana Urban (Control of Rent and Eviction) Act, it is expedient to examine the relevant provisions of Section 13(2) (i) (proviso) of the Act, which read as under : -
'Provided that if the tenant, within a period of 15 days of the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest, to be calculated by the Controller, at 8% per annum, on such arrears together with such 0 costs of the application. If any, as may be allowed by the Collector, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid'.
In view of the above provisions, the arrears of rent alongwith interest and costs tendered by the tenant on 17.12.1982 i. e. within 15 days from 6.12.1982, was certainly valid tender
13. As a sequel to the above finding, no fault can be found with the impugned judgment.
14. Resultantly, this petition fails and is dismissed.
15. No order as to costs.