Judgment:
K. Kannan, J.
1. The main case in C.R. No. 951 of 2009 is posted to 20.07.2j009.The case is advanced suo motu and with consent of both parties, the main as well as the application are disposed of.
2. The application CM. No. 7247-CII of 2009 is for grant of stay of the proceedings and in the alternative for preponement of the date of hearing. Having regard to the fact that the case still has been directed to be preponed and the case is being decided, the application for stay is dismissed as unnecessary.
3. The revision is against the order dismissing an application for amendment moved by the tenant for making counter-claim to the statement already filed. The counter-claim was purported to be for recovery of the amount alleged to have been paid in excess by the tenant to the landlord. The Rent Controller dismissed it relying on the provision in Section 7 of the Haryana Urban (Control of Rent and Eviction) Act stating that such a right must be exercised within six months and that further the application itself was belated.
4. Learned Counsel for the petitioner while adverting to the reasoning points out that the period of six months must be understood as a time, which if invoked by the tenant would enable him to seek for adjustment against the future accruals of rent. The right to recover any payment in excess itself cannot be defeated merely by reference to Section 7, if such a right is otherwise within the time as available under the provisions of Limitation Act.
5. Learned Counsel for the respondent has another objection to place while supporting the ultimate decision of the Rent Controller. According to him, an application for counter-claim, which is resorted to by invoking Order 8 Rule 6-A shall be filed at or after filing the suit but before filing the written statement in defence and relies on the decision of Hon'ble Supreme Court in Bollepanda P. Poonacha and Anr. v. KM Madapa : A.I.R. 2008 S.C. 2003 : (2008) 13 S.C.C. 179. In this case, the claim to refund by the tenant is for a period between 01.07.2004 to 01.12.2006, the house tax and the interest, which were realized from the tenant to which, according to the tenant, he was not liable to pay. The statement had been filed on 08.05.2007 but the application for amendment of the statement by way of counter-claim was made subsequently. Evidently, the cause of action for the counter-claim had arisen even at the time when the statement was filed on 08.05.2007 and hence as per the law as laid down by the Hon'ble Supreme Court, an amendment by way of counter-claim was not maintainable.
6. It is admitted by both the counsel that evidence of the landlord has been concluded and the tenant's evidence is in progress. Notwithstanding the dismissal of the application for amendment, the Rent Controller shall still consider at the final disposition the issue relating .to the quantum of rent that is payable' and if there exists any excess payment as contended by the tenant, the Rent Controller shall consider passing appropriate orders in respect of such excess sum; if such a contention by the tenant is not true, the other legal consequences as permissible by law would follow.
7. The revisior petition is disposed of in the above terms.