Kailash Chander and Others vs Basant Lal and Others

Ashok Bhan, J.—This judgment shall dispose of two revision petitions No, 3066 and 3067 of 1980. The facts are being taken from C R. No. 3066 of 1980.

Shortly stated, the fasts of the case are that the landlord (hereinafter referred to as the petitioner) brought the petition before the Rent Controller in the year 1976 for fixation of fair rent of the disputed shop which was on rent with respondents Basant Lal and Kashmiri Lal against annual rent of Rs. 1100/-. Initially the tenancy was for a period of one year from 20 9.1955 to 19.9.1956. On the expiry of period of one year, tenant-respondents (hereinafter referred to as the respondents) continued to be in occupation of the shop as statutory tenants. It was stated in the petition that after 1956, rent of similar shops in the locality had increased and in the year 1962, the rate prevalent of the similar shop was more than Rs. 2000/- per month ; that there was manifold increase in the All India Wholesale Price Index. It was prayed that the fair rent of the shop should be fixed at Rs. 3000/- per annum.

Tenants after service filed their written statement resisting the petition. It was denied that they were statutory tenants on the shop in dispute and pleaded that after the year 1956, the tenancy was renewed on six months basis on payment of Rs. 550/. This arrangement continued upto 20.3.1974. Other averments made in the petition were controverted and it was averred that in the year 1962, the rent of similar shops in the locality was not more than Rs. 1100/- per month.

On the pleadings of the parties, the following issues were framed : -

Whether the petition has not been presented in accordance with the rules framed under the Haryana Urban (Control of Rent and Eviction) Act, 1973. if so its effect ? OPR.

Whether the petition is bad for mis-joinder of parties.

What is the basic rent of the shop in dispute ? OPA.

What should be the fair rent of the shop in dispute ? OPA.

Relief.

On apparaisal of evidence, the Rent Controller came to the conclusion under issue No. 3 that the basic rent of the shop in dispute to be Rs. 1800/- per annum. Under issue No. 4, the fair rent was determined to be Rs. 2970/-. As a result thereof, the petition filed by the petitioner succeeded and the fair rent of the shop in dispute was determined to be Rs. 2970/- per annum from the date of application. Against the order of the Rent Controller, both the parties preferred appeals which were disposed of by the Appellate Authority against which the present revision petitions have been filed. The Appellate Authority, on appraisal of evidence, reversed the finding of the Rent Controller under issue No. 3 and held that the rent of similar buildings in the locality in the year 1962, could not be ascertained. No finding was recorded by the Appellate Authority on issue No. 4. Before this Court, learned counsel for the parties addressed arguments on issue No. 3 alone and the findings recorded by the Courts below on other issues were not challenged. It, therefore, becomes clear that this Court has to determine as to what was the basic rent of the shop in dispute.

I have heard the learned counsel for the parties at length and in my view, the finding recorded by the appellate Authority, cannot be sustained.

Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act), came into force in the year 1973. The same was amended in the year 1976. Counsel appearing for the parties agreed that the parties would be governed by the provisions of the Act as amended in the year 1976. Section 4(2) of the said Act lays down that before fixing the fair rent, the Controller shall first determine the basic rent, which shall be the rent prevailing in the locality for similar buildings during the year 1962 in respect of the buildings, the construction whereof was completed on or before 31.12.1961. The shop in dispute was given on rent to the tenants in the year 1955. The point in controversy is thus to be decided keeping in view the provisions of the 1973 Act as amended in the year 1976, the resume of which has been briefly given in this paragraph itself.

With the help of learned counsel appearing for the parties, I have gone through the evidence. Petitioner has produced Ram Kumar AW-1, Jagan Nath AW-2 who are the shopkeepers near the shop in dispute and the landlord Kailash Chand examined himself as AW-3. Ram Kumar AW-1 has deposed that the shop in dispute is on Railway Road, Narwama and his shop is also situated on the Railway Road. He has further stated that the shop with him is on an annual rent of Rs. 2000/- since 1.8.1963 and the house tax is also included in the rent ; that he had paid an amount of Rs. 4000/- to Sardar Singh'' as advance rent and an entry to this effect existed in the Rokar Bahi which was made in the ordinary course of his business. A copy of the same is Exhibit A-1 and its Hindi translation in Exhibit D-2. Appellate Authority did not place any reliance on the evidence of this witness on the plea that this witness had stated (he rent which was prevalent in the year 1963 and not in the year 1962 The approach of the Appellate Authority is clearly erroneous. This witness had taken the shop on rent on 1 8.1963, i. e. after a period of one year. The approximate rent in the year 1962 as the basic rent could safely be deduced. Moreover, only four shops intervened between the shop of this witness and the shop in dispute. This was a relevant piece of evidence and the Appellate Authority clearly erred in discarding this evidence. Similarly Jagan Nath AW-2 has stated that his shop is also situated on Railway Road He has deposed that in the beginning they had taken the shop in 1962 for a rent of Rs. 1800/- per annum and they had taken 2/3rd portion of that shop. He has further deposed that on the remaining portion Bhagwan Sarup paid the rent of Rs. 1148/- per annum. He further deposed that rent of 2/3rd portion of the shop in their possession was increased to Rs. 2000/- in the year 1964. This witness has also produced the entry of his Bahi relating to payment of Rs. 1000/- as rent for six months which has been exhibited as Exhibit A-3. Appellate Authority has discarded the evidence of this witness on the ground that the area of this shop was not equal to the area in question became this witness had taken 2/3rd portion of the shop on rent at the rate of Rs. 1800/- per annum in the year 1962. Hardly this could be made the basis for rejection of the testimony oft his witness. I have gone through the testimony of this witness and find the same to be credit worthy. Appellate Authority has wrongly rejected the testimony of this witness. The testimony of these two witnessess has been corroborated by the evidence of the landlord who has deposed that the rent of similarly situated shops in the locality in the year 1964 was more than Rs. 2000/- per month and he gave the instance of two other shops which were under the tenancy of one Moman Chand and Phool Chand respectively.

As against this, the tenants produced Nand Lal RW-1 who has a shop in front of the disputed shop. He has deposed that the fair rent of his shop was fixed in the year 1970 and the appeal was decided in 1973 or 1974 and the fair rent was fixed at the rate of Rs. 1500/- per annum. Rent Controller pointed out in its order that the shop in dispute had certain strategic advantages as compared to the shop of Nand Lal and, therefore, could have fetched more rent. It was observed that the shop of Nand Lal consisted of one Room and also a Radsal. Nand Lal admitted that there was a road in front of the shop of Basant Lal and thereafter there was a chowk and then comes the shop of Nand Lal which shows that the shop of this witness was at some distance from the road. In fact the evidence of the tenants was rejected by both the Courts below. I have gone through the testimony of Nand Lal RW-1 as well as the tenant-respondents. Their evidence cannot be relied upon being not credit worthy and the Courts below rightly rejected the evidence of the tenant-respondents.

Counsel appearing of the respondents argued that no reliance should be placed on the testimony of AW-1 Ram Kumar and AW-2 Jagan Nath as they are closely related to the landlord. I find no force in his submission. Even if these two witnesses are related to the landlord, their testimony cannot be discarded on this score alone. As stated above, I have gone through the testimony of these witnesses and find it to be credit worthy. Their testimony is duly sup-ported by the documentary evidence which they have produced in the form of Bahi entries regarding payment of rent which were main-tamed by them during the course of their business. Further I do not find any force in the submission of counsel for the respondents that the case of the landlord is not supported by any documentry evidence The documentary evidence is in the form of Bahi entries which corroborate the version of AW-1 Ram Kumar and AW 2 Jagan Nath. It is true that these two witnesses have not produced the rent note but no question regarding the execution of the rent note was asked from these witnesses. So far as non production of receipts is concerned, it may be stated that these two witnesses had produced their Bahi entries in which the entry regarding payment of rent has been made. These Bahi Rokars were prepared and maintained by them in the ordinary course of their business and such like entries cannot be discarded. Relying upon the testimony of the landlord''s witnesses, it can safely be concluded that the basic rent of the shop was Rs. 1800/- per annum in the year 1962 as determined by the Rent Controller. The Rent Controller had determined the fair rent to be Rs. 2970/- under issue No. 4, the finding regarding which was not challenged before the Appellate Authority or before this Court.

In view of my findings recorded above, this revision petition succeeds. The impugned order of the Appellate Authority is set aside and that of the Rent Controller, restored and the fair rent of the shop in dispute is determined to be Rs. 2970/- p. a. from the date of application. No costs.