Jaswinder Singh vs Chander Mohan Bhasin

V.S. Aggarwal, J.—The present revision petition has been filed by Jaswinder Singh, hereinafter described as the petitioner, directed against the order of the learned Rent Controller, Chandigarh, dated 24.5.1994 and of the learned Appellate Authority, Chandigarh, dated 21.8.1996. The learned Rent Controller had passed an order of eviction which was upheld by the Appellate Authority.

The relevant facts are that respondent Chander Mohan had filed a petition for eviction seeking ejectment of the petitioner from the demised premises. The sole surviving ground of eviction which came up for consideration in the present revision petition was non payment of rent. It was asserted by the respondent that the agreed rate of rent was Rs. 300/- per month which was payable in advance by the 7th of each Calendar month. It was enhanced to Rs. 350/- per month in the year 1990 by mutual consent of the parties. The petitioner was stated to be in arrears of rent from April, 1992.

The petition for eviction had been contested. It was denied that the agreed rent was Rs. 350/- per month. As per petitioner, the rate of rent was Rs. 120/- per month. It included water and electricity charges. The petitioner asserted that the entire arrears stood paid but receipt had not been issued. The original rent was Rs. 100/- per month including water and electricity charges. It was enhanced to Rs. 120/- per month. The rent was paid uptil June, 1993.

The learned Rent Controller framed the issues and recorded the evidence. It was held that the entire arrears of rent had not been tendered and therefore, the petitioner was liable to be evicted. The same reasoning found favour with the Appellate Authority. However, it had been concluded by both the authorities that the agreed rent was Rs. 120/- per month and not what is claimed by the respondent.

No controversy was raised regarding the finding that the agreed rent is Rs. 120/- per month. Taking advantage of this fact, learned counsel for the petitioner urged that once it had been found that the respondent was taking a false plea regarding the agreed rate of rent, his contention that arrears are also due must be rejected. He strongly relied upon the decision of this Court in the case of Fakir Chand and Another Vs. Bhagwan Dass, . In the cited case, eviction petition was filed under the Haryana Urban (Control of Rent and Eviction) Act, 1973. The ground of eviction pertaining to non-payment of rent is para materia as in the corresponding provisions of the East Punjab Urban Rent Restriction Act, 1949. The landlord demanded arrears of rent at the rate of Rs. 400/- per month. The suit was filed after a period of three years. It was found that the rent was, in fact, Rs. 200/- per month. The findings recorded were that the landlord could not be believed in respect to arrears of rent and the period for which the same was claimed.

It is abundantly clear from the perusal of the cited decision that, indeed, it is confined to the peculiar facts therein. It cannot be taken as a broad workable proposition of law that in all cases this principle would be applicable. Reference in this connection can well be made to the decision of this Court in the case of Abdul Rashid v. Mohmad Ramjan 1998(2) All IRCJ 314. A similar argument was advanced. The same says rejected with the following findings:-

"An argument was advanced that once it has been concluded that respondent was taking false plea about agreed rate of rent, petitioner''s plea about payment of rent uptil September, 1987 should be believed. I am afraid this cannot be accepted as a general rule. The facts and circumstances of each case necessarily must be examined on its own merits. This is not a question whether precedent indeed would help. It must be conceded that parties did cite precedents in their favour. In the facts of those cases, it was held that arrears of rent were not claimed for years and, therefore, the claim of the landlord must be disbelieved. Reliance and placed on the decision of Chander Kumar Anand and Ors. (L.Rs. of Tilak Raj) v. Smt. Daropadi Devi alias Agya Wanti, and also in the case of Mehar Chand and Anr. v. Tilak Raj. On the contrary respondent''s learned counsel relied upon the judgment of this Court in the case of Iqbal Singh Sethi v. Mangat Ram. But indeed as referred to above the conclusions arrived at were on the facts of that case. In the present case in hand, the petitioners specifically alleged that payment had been made in presence of two witnesses and one was not produced while the other did not help their claim. In that backdrop, they cannot be heard to state that arrears in fact had been paid. The finding of fact thus arrived at does not require any interference."

In fact, each case is to be decided on its own merits and it is to be determined whether the arrears claimed are due or not.

In the present case in hand, there are concurrent findings of fact that the arrears claimed by the respondent were due. The same can only be set aside if it is found that the findings so arrived at are erroneous. Supreme Court in the case of Shiv Lal Vs. Sat Parkash and Another, , held as under:-

"Proceeding further, the High Court has on a reappraisal of the evidence without any justification reversed the finding of the fact concurrently arrived at by the trial Court and the first appellate Court, while exercising jurisdiction u/s 15(5) of the Act the Court does not act as a regular third appellate Court and can interfere only within the scope of the Sub-section, discussed and defined in many reported cases by this Court. An examination of the facts and circumstances of this case indicates that the reconsideration of the evidence by the High Court was not justified. It appears that on being misled by its view that the cession of tenancy is a necessary element of Section 13(2)(v), the High Court proceeded to re-examine the evidence on the records, leading to the impugned judgment. We, therefore, set aside the judgment under appeal and restore the decrees passed by the trial Court. The appeals are accordingly allowed, but without costs."

Similar view prevailed with the Supreme Court in the decision rendered in the case of Dev Kumar (Died) through LRs. Vs. Smt. Swaran Lata and others, . The revisional jurisdiction of the High Court under the East Punjab Urban Rent Restriction Act, 1949, came up for consideration. The Supreme Court reiterated that ordinarily the High Court will not interfere in the concurrent findings of fact. The precise findings are as under-

"In our considered opinion having regard to the aforementioned decisions of this Court laying down the parameters of the High Court''s jurisdiction u/s 15(5) of the Act it is neither possible to accept the narrow construction put by the learned counsel appearing for the appellant nor the wide construction put by the learned counsel appearing for the respondents. The jurisdiction of the High Court under Sub-section (5) of Section 15 of the Act, therefore, would entitle the Court to examine the legality and propriety of a conclusion of the Appellate Authority and is. thus much wider than the revisional jurisdiction u/s 115 of the Code of Civil Procedure. But it has to be exercised subject to the well known limitations inherent in all revisional jurisdictions and cannot be equated with an Appellate jurisdiction. This being the position, unless there is a perversity in the matter of appreciation of evidence by the Appellate Authority or unless the Appellate Authority has arrived at a conclusion which on the materials, no reasonable man can come, the High Court will not interfere with the same."

When such is the position and the evidence has been considered on merits, the plea must be rejected. It must be held that the arrears as claimed by the respondent were due.

Learned counsel for the petitioner, however, urged that the petitioner had been misled. In the eviction petition, it had been stated that the arrears were due from April, 1992. In the zerox copy that was supplied to the petitioner, it had been mentioned that the arrears were due from September, 1992 and that this had caused prejudice to the petitioner. It becomes unnecessary to probe further because the petitioner''s case was that the arrears have been paid uptil April, 1993 and he tendered the rent from that date onwards. He had pleaded payment of the arrears of rent before that date. Keeping in view the said fact, indeed, the petitioner cannot be allowed to urge that any prejudice has been caused even if what is stated by the petitioner is taken to be correct.

Confronted with that position, it was urged that the petition for eviction was filed on 19.8.1993. The arrears were due from 1.12.1992 (as claimed) to 30.6.1993 and the same were tendered as were due when the petition was filed. Even if the tender was made on 13.11.1993, this contention of the learned counsel hardly needs any further probing. This is for the added reason that on the first date of hearing the petitioner himself has made the following statement:-

"I tender a sum of Rs. 960/- as arrears of rent w.e.f. 1.4.93 to 30.11.193 at the rate of Rs. 120/- p.m. interest Rs. 25/-; costs Rs. 150/-; total Rs. 1,135/-. Rate of rent is Rs. 120/- p.m. and not Rs. 350/- p.m. Rental is due from 1.4.93 only. Previous rent stands paid and no receipt was issued by the petitioner."

In other words, the tender was made for a specific period, namely, from 1.4.93 to 30.11.193. No such adjustment, as now is being claimed, was so stated. Therefore, he cannot now turn back and seek adjustment of the rent when he has stated specifically that the tender is for the specific period. In fact, no such plea was taken before the Rent Controller or the Appellate Authority. It is also too late in the day to raise such a plea.

Once it was found that more arrears were due and had not been tendered on the first date of hearing the Rent Controller and the Appellate Authority had rightly passed the impugned order and there is no ground to interfere.

For these reasons, the revision petition being without merit must fail and is accordingly dismissed. The petitioner is granted one month''s time to vacate the demised premises.