Baldev Krishan vs Raja Ram and others

Gokal Chand Mital, J.—Baldev Krishan filed an application for ejectment u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ''the Act''), against Raja Ram tenant en two grounds, one that he was in arrears of rent with effect from 1st Baisakh 2019 BK at the rate of Rs. 500/- per annum and the second that he had sub-let the premises to Kasturi Lal without his written consent. Since Kasturi Lal was alleged to be sub-tenant, be was also impleaded. After notice was issued by the Rent Controller, Raja Ram tenant did not put in appearance and was proceeded ex-parte.

The petition was contested by Kasturi Lal. He pleaded that Raja Ram was not the tenant, that he was in possession as a tenant for the last 15 years and earlier thereto his father was tenant. The father had died in 1958 and since then he is in possession of the shop as a tenant. His case was that he and his father had been paying rent to Baldev Krishan and rent had been paid by the end of Chaitra 2029 BK. The points in controversy were put in issues. The Rent Controller held that Raja Ram was the tenant and Kasturi Lal was the sub-tenant. Since Raja Ram had not tendered arrears of rent oh the first date of hearing, the order of ejectment was passed on both the grounds. Issue No. 2 A was as follows:

Whether Respondent No. 2 has paid the arrears of rent to the Petitioner uptill the end of Chet 2029 BK? OPR.

The trial Court on the aforesaid issue recorded a finding that Kasturi Lal had stated that he paid the rent to the landlord uptil 12-4-1972, but this statement was not supported by oral or documentary evidence and no reliance could be placed on the statement of Kasturi Lal who was an interested person and that was not sufficient to prove that he has paid the rent upto 12-4-1972. On this basis, the issue was decided against Kasturi Lal.

Kasturi Lal went up in appeal and the Appellate Authority came to the conclusion on the appreciation of oral and documen-tary evidence that Kasturi Lal was the tenant and before him his father Ronak Ram was the tenant since 1951. It was also found that the electric connection which was fitted in the shop was in the name of Ronak Ram Kasturi Lal since 196(sic) whereas the tenancy in favour of Raja Ram was alleged to have sturred from 1st Baisakh 2016 BK, which would be some time in 1959 i e. long after the tenancy in favour of Ronak Ram was starred. On this basis it was concluded that Kasturi Lal was a direct tenant and earlier thereto his father was the tenant. Reference was also made to the admission of the landlord in Exhibit R1, which was a document in his own handwriting that Ronak Ram was the tenant of the shop. It was also held that Raja Ram was never the tenant and the story of sub-letting was a made up affair. The findings of the Rent Controller to the contrary were reversed.

As regards issue No 2-A, the Appellate Authority was of the view that the finding of the trial Court on this issue could not up-held-It was further held that the case of Kasturi Lal tenant was that he has paid rent upto 12-5-1972 and since he was not being admited as a tenant, the issue was unnecessary because the ground of nonpayment of rent related to Raja Ran alone, who was considered by the landlord to be tenant and since Raja Ram was not proved to be the tenant, both the grounds against him ceased to exist Consequently, by order dated 3rd January. 1973, the Appellate Authority allowed the appeal and set-aside the order of ejectment. This is landlord''s revision.

After hearing Shri H. L. Sarin, Senior Advocate, I am of the view that there is no scope for interference with the appreciation of evidence and the findings arrived at by the Appellate Authority in regard to the matter'' whether Raja Ram was the tenant of Kasturi Lal was the tenant''. Writing Exhibit R1 shows that prior to Kasturi Lal his father was tenant Genuineness of Exhibit. R1 was being disputed by the landlord and by producing an expert whose evidence was believed by the Appellate Authority it was found that it was executed by the landlord. Apart from that, we have other documentary evidence on the record, duly supported by oral evidence. Ram Singh clerk of the electricity Board produced document Exhibit RW6/A to show that on 9-6-1956 electricity was fitted in the shop in dispute for the benefit of Ronak Ram Kasturi Lal. Then we have the statement of Krishan Lal (RW7) who brought the property tax register relating to the years 1963 to 1968, from where it was proved that Ronak Ram occupied the shop in dispute He had been summoned with record (earlier record) but since that was not available, the same could not be proved Even the neighbours have started that Raja Ram never occupied the shop and it was Kasturi Lal and earlier to him it was his father, who were in possession of the same. Hence, I endorse the finding of the Appellate Authority that Kasturi Lal was direct tenant and Raja Ram was never the tenant.

6 Faced with this situation, Shri H L. Sarin, Senior Advocate, argued that since Kasturi Lal did not tender arrears of rent on the first date of hearing, he would be liable to be ejected on the ground of non-payment of rent, since he has been found to be direct tenant. He has relied on the finding recorded by the trial Court on issue No. 2-A coupled with the fact that no tender was made on the first date of hearing. On identical facts he has relied on (sic) Singh v. Banwari Lal (1984) 2 R. C. J. 87, rendered by J.V. Gupta J. Before I advert to this point, it would be necessary to find out whether Kasturi Lal was in arrears of rent. I have gone through the statement of Kasturi Lal, wherein he has clearly stated that he has aid rent to the landlord upto 12th April, 1972. Since the landlord has been disbelieved on the point that Raja Ram was a direct tenant and it has further been found that a got up rant note has been produced in the case to show-sub-letting, no reliance can be placed en the statement of such a landlord. Accordingly, I believe the statement of the tenant and hold that be has paid rent upto 12th April, 1972. The finding to the contrary recorded by the Rent Controller is hereby reversed. The ejectment petition was instituted on 16th May, 1972. If the rent was payable from 13th of the month then for the period starting from 13th April, 1972 till 12th May, 1972 u/s 13(2)(i) of the Act, it would become due after the last date of the next following month. Hence for the period 13th April, 1972 to 12th May, 1972, the rent would have become due only on 13th June, 1972, and not earlier thereto. The petition for ejectment on the ground of arrears of rent for the period 13-4-1972 to 12-5-1972 could not be filed earlier than 12-6-1972. This petition having been filed on 16-5-1972 was premature because by then the tenant bad still time to pay the rent till 12th June, 1972 and could not be ejected on this ground.

Assuming for the sake of arguments that Kasturi Lal was in arrears of rent which had fallen due on the date, the ejectment petition was filed and had not tendered the tame on the first date of hearing, still I would have come to the conclusion that no order of eject-meat against him could be passed because the ejectment petition was directed against Raja Ram on two grounds; one of which was subletting and on the question of sub letting alone, Kasturi Lal was in-volved and not on the ground of non-payment of rent by Raja Ram. Some judgments nave been rendered by the High Courts that a subtenant is not a necessary party and some judgments say that sub tenant is a proper party.

Wherever it is stated that he is a proper party, it was for the reason to safeguared the interest of the sub tenant so that he may have an opportunity to defend and show whether the sub letting was with written consent or that he was a direct tenant. In this case, Kasturi Lal was impleaded merely because he was alleged to be a sub-tenant

Even when ejectment petition is filed against a person who is admittedly a tenant and he is served with a notice of the ejectment petition but without copy thereof, it has been held authoritatively by this Court that such a service is not service and the date for which is served without copy of the ejectment petition, cannot be treated as the first date of hearing, because the tenant would not know as to on what ground his eviction is sought, whether on the ground of arrears of rent or any other ground. If one of the grounds is arrears of rent then he must know before hand as to bow much rent the landlord has claimed so that he can tender the same alongwith interest and costs on the fist date of hearing. This he can do only if he is served with a copy of the ejectment petition I have observed this because of the reason that even when there is admittedly a relationship of landlord and tenant it becomes necessary to state the grounds in the ejectment petition on which ejectment is sought and to serve copy of the same on the tenant so that he can meet the same.

In the present case the ejectment petition is only against Raja Ram on two grounds. Non-payment of rent is alleged only against Raja Ram and not against Kasturi Lal. If plea of sub-letting had not been raised in this petition, on these facts Kasturi Lal would not have been impleaded and if order of ejectment had been obtained against Raja Ram, whether on the contest or ex-parte, the same would not have affected the rights of Kasturi Lal. In execution, it would have been open to him to show that he was direct tenant and on proof of the same the ejectment order against Raja Ram would have become meaningless and the landlord would have been obliged to file a fresh petition against Kasturi Lal giving him the first date of hearing for tendering the arrears of rent, if not already paid.

The judgment in Buta Singh''s case (supra) is on alt fours in favour of the contention raised by Shri Sarin but as at present advised I have my doubts about the same However, since the alleged sub-tenant it not proved to be in arrears of rent on the first date of hearing, the question of tendering on the first date of hearing does not arise on the facts of this case and, therefore, the consideration of aforesaid point would be wholly academic in this case.

For the reasons recorded above, this revision is devoid of merit and it dismissed with costs.