Buta Singh vs Banwari Lal and Others

J.V. Gupta, J.—This is tenant''s petition against whom order of ejectment has been passed by both the authorities below.

The landlord (Banwari Lal) filed the ejectment application for seeking ejectment of Jagdish Chander and Buta Singh from the premises in dispute. According to the case of the landlord, these premises had been given on a monthly rent of Rs. 22/- to Respondent No. 2 Jagdish Chander by the landlord en 9th June, 1960. The ejectment was sought on the ground that Jagdish Chander tenant had neither tendered nor paid the arrears of rent from 1st January, 1970. The application was filed on 6th March, 1974. The second ground was that said Jagdish Chander sublet the premises to Buta Singh Petitioner without the written consent of the landlord. The ejectment application was contested on behalf of Buta Singh, the alleged subtenant, whereas Jagdish Chander Respondent No. 2 was proceeded against exparte. In the written statement filed on behalf of Buta Singh, he took up the plea that he was the direct tenant under the landlord with effect from May 1962, and that he was not a sub-tenant under Jagdish Chander, as alleged in the ejectment application. He denied that he was in arrears of rent. According to him, he had paid rent upto 31st August, 1970, to Saraswati Devi and from 1st September, 1970 to 31st March, 1971 to Ram Nand Kapur and from Ist April 1971 to 30th August, 1972, to Smt. Narindera Wati and Smt. Rita Mehra. Thus arrears of rent due from 1st September, 1972 to 28th February, 1974, amounting to Rs. 504/- at the rate of Rs. 28/- per month, Rs. 27/-, by way of interest and Rs. 30/- as costs, totalling Rs. 561/- were tendered on the first date of hearing i.e. 18th April, 1974. However, the landlord did not accept the tender on the ground that Butt Singh was not his tenant and he was only a sub-tenant in the demited premises.

The learned Rent Controller, on the appreciation of entire case, came to the conclusion that Buta Singh was a direct tenant under the landlord. However, there was a specific issue No. 6 to the effect ''Is the Respondent No. 1 not liable to ejectment on the ground of non-payment of rent''. Under this issue, the learned Rent Controller found that since the payment of ret by Buta Singh from Ist September, 197t to 30th August, 1972, as claimed by him in his written statement, was not established, therefore, the tender made on the first date of hearing, though not accepted by the landlord, was not a valid one and thus Buta Singh was liable to ejectment on the ground of non-payment of arrears of rent Consequently ejectment order was passed against Buta Singh. In appeal, the learned Appellate Authority affirmed the said findings of the learned Rent Controller and thus maintained the order of ejectment passed against the tenant. Dissatisfied with the same, the tenant has filed this petition in this Court.

The Learned Counsel for the Petitioner vehemently contended that according to the landlord, Buta Singh was a sub-tenant under Jagdish Chander and, therefore, Buta Singh was under no legal obligation to tender the arrears of rent on the first date of hearing. According to the Learned Counsel, though he tendered the arrears of rent from 1st September, 1972 to 28th February, 1974, on the. first date of hearing, but the same was not accepted by the landlord on the ground that Buta Singh was not his tenant. Thus, argued the Learned Counsel, since the landlord never came to the Court with clean-hands as he never accepted Buta Singh to be his tenant, under the circumstances, Buta Singh though found to be the direct tenant under the landlord, was under no obligation, to tender the arrears of rent on the Ist date of hearing, and thus the order of ejectment passed against him on that ground is liable to be set aside.

On the other hand, the Learned Counsel for the landlord submitted that since Buta Singh claimed himself to be the direct tenant under the landlord, he was under legal obligation to tender the arrears of rent due on the first date of hearing in order to save his ejectment. Since he failed to pay the arrears of rent, as claimed in the ejectment application, the eviction order has been rightly passed against him on the ground of non-payment of arrears of rent. In support of his contention, he referred to Joginder Singh v. Sarup Singh and Anr. 1977 (2) R.C.J. 159. and Igbal Chand v. Sh. Avinash Chander Kapur and Anr. 1977 (2) R.C.J. 633.

I have heard the Learned Counsel for the parties and have also gone through the case law cited at the Bar. It may be stated here that the findings of the authorities below under issue No. 6 that the tender was invalid because the entire arrears of rent claimed by the landlord were not tendered, were not contested on behalf of the tenant-petitioner. In support of his earlier contention, reference was made to Kirpal Singh v. Kishan Singh 1980 (1) R.L.R. 20. Smt. Daya Wati v. Dulti Chand and Anr. (1980) 82 P.L.R. 513 and Mehar Chand and Anr. v. Tilak Raj Girdhar (1982) 84 P.L.R. 13.

The sole question to be determined in this petition is whether Buta Singh, who was alleged to he a sub-tenant in the ejectment application by the landlord; was under legal obligation to tender the arrears of rent as claimed in the ejectment application on the first date of hearing, in order to save his ejectment when, according to him, he was a direct tenant under the landlord and was so found by the authorities below. It has already been stated earlier that the ejectment application was contested only by Buta Singh, the alleged sub-tenant, whereas Jagdish Chander, the alleged tenant was proceeded against ex-parte The tenant Buta Singh claimed that the rent from Ist September, 1970 to 30th August, 1972, had already been paid to the other landlords and, therefore, be only tenderd rent from Ist September, 1972 to 28th February, 1974, on the first date of hearing. This plea of Buta Singh tenant that he had made the payment for the period from Ist September, 1970 to 30th August, 1972 to the landlord was negatived by both the authorities below. This finding, as stated earlier, has not been challenged in this petition. Under the circumstances, the tenant could only succeed in this petition if it could be held that he was under no obligation to tender the arrears of rent on the first date of hearing because he was alleged to be a subtenant in the ejectment application by the landlord, though he claimed to be the direct tenant under the landlord, and has been so found by the authorities below. In my opinion, once the alleged -sub-tenant claims himself to be the direct tenant under the landlord, he in order to save his ejectment on the ground of non-payment of arrears of rent, is legally bound to tender the arrears of rent on the first date of hearing. Simply because he was alleged to be a sub-tenant by the landlord, does not absolve him from the statutory duty to tender the arrears of rent on the first date of hearing, when this was one of the grounds of ejectment claimed in the ejectment application. The authorities relied upon on behalf of the Petitioner are clearly distinguishable and nowhere lays down this proposition as contended by the Learned Counsel for the Petitioner. In Kirpal Singh''s case (supra), one Kirpal Singh was alleged to be a subtenant by the landlord. The learned Rent Controller found that Kirpal Singh was the direct tenant and, therefore, the ground of sub-letting was negatived and the ejectment application was dismissed by the Rent Controller. In appeal, the learned Appellate Authority sent for the report, after framing the issue ''whether the tender made by Kirpal Singh Respondent No. 2 was valid'' According to the report of the Rent Controller Kirpal Singh had not made a valid tender at the rate of Rs. 100/- per measem, despite the fact that he had found him to be the tenant-However, again two additional issues were framed and the report of the Rent Controller was that Kirpal Singh was a direct tenant under the landlord at a monthly rent of Rs 100/- with effect from November 1975 and he was in arrears of rent since then. As a sequel thereto, it was found that the tender made by Kirpal Singh Petitioner was not valid. The learned Appellate Authority found that there was no case of sub-letting; Kirpal Singh Petitioner was a direct tenant under the landlord; and that the tender made by Kirpal Singh on the first date of hearing was not valid. Consequently, the appeal was allowed and the eviction order against Kirpal Singh was passed. In the revision petition filed on behalf of the tenant, the learned Judge reversed the finding of the authorities below as to the tender made on the first date of hearing as contained in para 7 of the report and found that the tender was a valid one. As a result of that finding, the revision petition was allowed. Thus the said case has no bearing on the facts of the present case. As regards Smt Daya Wati''s case (supra) the petition filed on behalf of the landlady was dismissed by the High Court. Therein the landlady sought ejectment of his tenant Duli Chand on the ground of sub-letting to one Suraj Parkash, the alleged sub-tenant. The learned Rent Controller dismissed the ejectment application having found that the landlady had failed to establish the relationship of landlady and tenant between her and Duli Chand. Issue No. 2 regarding non-payment of arrears of rent was also decided against the landlady. Before the learned Appellate Authority the landlady only confined herself to the question as to whether Duli Chand was her tenant and Suraj Parkash was the sub-tenant. No other point was urged before the Appellate Authority. It was in the High Court that for the first time an argument was raised on behalf of the landlady that since Suraj Parkash was found to be the direct tenant, under her, then in that case the tender of arrears of rent should have been made to her at the first instance, since she happened to be the landlady under the mortgage deed. In reply to this argument, it was contended on behalf of the tenant that new the Petitioner wanted to change the stand she had persisted before the Courts below and her petition had been dismissed as being mala fide on erecting an edifice which had no foundation to rest upon. It was in this background that in para 5 of the judgment, the learned Judge observed that had the Petitioner come with clean hands before the Rent Controller to claim Suraj Parkash as her direct tenant and had let the latter fight a cleansing battle, the view taken might perhaps have been different on the ground of tenant being in arrears of reat. What plea the found tenant would have taken in the circumstances is not to be conceived in the present situation but the bona fide of the Petitioner towards the maintenance of the petition could well have been established. It was, therefore, ultimately observed "On the findings of the Courts below and on the consideration of the material afore-referred to, it cannot be found or even inferred that there was ever an existing tenancy between Duli Chand and the Petitioner. and if that relationship could not be established before the Courts below it is difficult to establish the same in this revision petition. No presumption in favour of continuity of such relationship can arise without its initial establishment". Consequently, the petition was dismissed Thus from the facts narrated in the said case, the contention raised on behalf of the Petitioner is not supported in any manner. As regards Mehar chand''s case (supra), it has absolutely no applicability as regards the question in dispute.

On the other hand the authorities cited on behalf of the Respondents do lend support to the contention that if the alleged sub�tenant claims himself to be the direct tenant under the landlord, then, in order to save his ejectment, he must tender the arrears of rent as claimed in the ejectment application on the first date of bearing. In Joginder Singh''s case (supra) it was held that if the sub-tenant claims himself to be the tenant under the landlord by virtue of special definition contained in Section 2(1) of the Act, he is liable to be ejected as a tenant for not paying rent and not tendering rent, costs or interest etc.

As a result of the above discussion, this petition fails and is dismissed, with costs. However, the tenant is allowed three months'' time to vacate the premises provided all the arrears, if any, and advance rent for three months, is deposited with the Rent Controller within three weeks.