Daya Nand Sohag vs Dharam Chand

A.L. Bahri, J.—The tenant Daya Nand Sohag has challenged order of the Appellate Aothority, Gurgaon dated December 1, 1987 ; whereby his appeal filed against order of the Rent Controller dated December 18, 1986 was dismissed Before the Heat Controller, Dharam Chand, the landlord claimed ejectment of Daya Nand Sohag from the house in dispute, on the ground of non payment of arrears of rent. The agreed rate of rent was Rs. 130/- per month besides house-tax and electricity charges. Earlier, in June 1980, a portion of the house in dispute was let out to the tenant at Rs. 90/- per month besides house-tax etc. The remaining portion was subsequently let out and thus, the total rent which was mutually agreed cane to Rs. 130/- per month as stated above. The tenant had paid the rent upto May 31, 1982 and thus, rent for the period June I, 1982 onwards was payable. It was further stated that the rent for the month of May, 1982 was paid by Rs. 10/- less and that amount was also payable. The tenant had paid Rs. 120/- by cheque instead of Rs. 130/-. Rent upto August 31, 1983 in this manner amounted to Rs. 1,950/-. House tax at the rate of 10% was also claimed. The tenat petitioner contested the ejectment application inter alia alleging that agreed rate of rent was Rs. 120/- per month including house-tax, but excluding electricity and water supply charges. It was denied that initially a portion of the house was let out for Rs. 90/- per month and subsequently rent was increased to Rs. 130/-. He further stated that rent for the month of May, 1982 was paid by cheque of Rs. 120/-. Subsequently, rent was sent through money order twice in the months of August and September, 1982. However, the landlord refused to accept the same. On the first date of hearing, a tender was made of the arrears of rent @ Rs. 120/- per month, which was not accepted by the landlord. In the replication filed by the landlord, the allegations of the tenant were controverted. The Rent Controller framed the following issues : -

What is the rate of rent of the demised premises ? OPP

Whether the tender is not valid ? OPP

Whether the respondent has already made excess payment and is entitled to adjust ?OPR.

Relief.

It was held by the Rent Controller that the agreed rate of rent was Rs. 130/- per month. It was further held that the tender made on the first date of hearing was invalid. Under issue No. 3, it was held that no excess payment was made by the tenant which could be adjusted. The Rent Controller, thus, ordered ejectment of the tenant. The appeal file by the tenant failed. The findings of the Rent Controller aforesaid were affirmed

The only point involved in this Revision Petition is about the agreed rate of rent as to whether the same was Rs. 130/- as claimed by She landlord or Rs. 120/- as claimed by the tenant. After going through the evidence produced in this case and hearing arguments of counsel for the parties, I find that the findings have been recorded correctly on the evidence produced.

No doubt, for the month of May, 1982, the tenant paid the rent through a cheque for Rs. 120/- and subsequently also he sent money orders in the months of August and September, 1982 @ Rs. 120/- which were not accepted by the landlord. Money order receipts are exhibit R 2/A to R7/A. Oral evidence was produced by the tenant in order to show that he was in possession of the entire house. The evidence consists of the statements of RW. 4 Harish Kutrnr, Clerk of Shri D. N. Mangla, Advocate, RW. 5 Sh. S. M. Sexena Advocate, who deposed about the plaint and the written statement filed in the previous suit. RW. 6 Samey Singh, Advocate, was appointed as Local Commissioner, whose report is exhibit RW. 6/1 and -site plan exhibit RW. 6/2. The suit was dismissed as withdrawn. The copy of the order is exhibit EX. dated August 13, 1984 The aforesaid evidence is not at all helpful in determining the agreed rate of rent. The tenant further relied upon copy of the assessment register exhibit R/1 for the year 1978 79 in respect of the house in dispute. Smt. Kaushlya wife of Dharam Chand, the present petitioner was shown as owner and three persons were shown as tenants namely, Naresh Pal, Ram and Mani Ram. They were shown to be paying rent @ Rs. 50/-, Rs. 40/ and Rs. 40/- respectively, total being Rs. 130/-per month The annual value was mentioned at Rs. 1,560/-. However, final assessment was ordered by the Committee after hearing objections at Rs. 950/-. Again this evidence is of no consequence as this evidence does not relate to Daya Nand Sohag, the tenant. Even if prior to the petitioner there were some other tenants paying tester amount of rent, it is no ground to hold that the agreed rent with the petitioner was also the same. Exhibit A/3 is the copy of the entry from assessment register for the year 1984 85 in which final annual assessment had been ordered @ Rs. 1,560/- per year. This order relates to the period when the present petitioner was occupying the house. Dharam Chand, appeared as AW. 1 and deposed about the agreed rent at Rs. 130/- per month which was finally settled. The statement of this witness finds corroboration from the entries in the assessment register exhibit A/3 as referred to above and the findings of the authorities below excepting the aforesaid evidence cannot be said to be erroneous and illegal in any manner. In Smt. Sant Kaur v. Balwant Singh 1983 (2) R. C. R 427, S. P. Goyal, J. accepted the evidence of the landlord regarding agreed rate of rent which was corroborated by the Municipal Assessment Register of house tax. Finding the agreed rate of rent at Rs. 130/- per month, the tender of arrears of rent made was obviously short and ejectment of the tenant-petitioner was rightly ordered.

For the reasons recorded above, this Revision Petition is dismissed with costs, affirming the order of ejectment passed by the authorities below. The petitioner is directed to deliver possession of the house in dispute to the respondent-landlord within two months from today.