Kharaiti Lal Chopra vs Inder Mohan Bhatia

R.L. Anand,J.—This is a landlord''s revision and has been directed against the judgment dated 11.3..1983 passed by appellate authority, Jalandhar, vide which the appeal of Kharati Lal Chopra (landlord)under Section 15 of the East Punjab Urban Rent Restriction Act, 19949 (hereinafter referred to as `the Act'') was dismissed by upholding g the order date 22.1.1.1981 passed by the Rent Controller, Jalandhar, who dismissed the application of the landlord u/s 3 of the said Act.

The brief facts of the case can be described in the following manner:-

Kharati Lal Chopra-landlord filed an enactment application against Inder Mohan Bhatia seeking ejectment of room in House No. ER-54 located in Pacca Bach, Naya Bazar, Jalandhar City.The landlord alleged that he rented out a room out of the said house of Inder Mohan Bhatia for the purpose of godown at a monthly rental of Rs. 75/- inclusive of the electricity charges amounting to Rs.5/- per months.The ejectment of the tenant was sought on the ground of non-payment of rent w.e.f. 1.1.1973 to 31.12.1977 at the rate of Rs. 75/- per month and from 1.1.1978 to 31.12.1978 at the rate of Rs.50/- per month as in the earlier rene petition filed by the landlord against the tenant, the tenant tendered the rent with effect from 1.1.1978 to 31.12.1978 at the rate of Rs.25/- per month and in this manner the difference has been claimed at the rate of Rs.50/- per month with effect from 1.1.1978 to 31.12.1978.The landlord also maintained that he withdrew the earlier application for ejectment as the same way filed without giving notice u/s 106 of the Transfer of Property Act. Now he has given a valid legal notice.The present ejectment petition was filed before the Rent Controller on 26.2.1979.

The notice of the petition was given to the tenant, who resisted the application.He tendered the arrears of rent with effect from 1.1.1978 to 30.4.1979 at the rate of Rs. 25/- per month on the first date of hearing and he maintained that he has already paid the rent at the rate of Rs. 25/- to the landlord upto 31.12.1978.

The landlord filed a rejoinder to the written statement filed by the tenant in which he reiterated his allegations made in the petition by denying those of the written statement and from the above pleadings of the parties, the learned Rent Controller framed the following issues:-

What is the rate of rent of the demised premises? O.P. Parties.

Whether the respondent is liable to ejectment on the ground mentioned in para 2 of the petition? OPA

Whether a valid notice was served on the respondent? If not, its effect? OPA

Relief.

5.The parties led oral and documentary evidence in support of their respective cases and the leaned Rent Controller dismissed the petition.The landlord filed the appeal before the Appellate Authority u/s 15 of the Act as applicable too the State of Punjab and for the reasons given in paras 6 to 12 of the order dated 11.3.1983 dismissed the appeal.Paras 6 to 12 reads as under:

"6. Admittedly no rent note or lease deed was executed between the parties at the inception of the tenancy.So there is no option but to appraise the oral evidence of the parties in the light of their earlier conduct and other documentary evidence, in order to asses the rate of rent.Kharaiti Lal Chopra landlord while appearing as AW1 as well as Sh.Som Nath (AW4) a previous tenant of the premises in the year 1972, stated that the rate of rent was Rs. 75/- P.M. even in the year 1972.Shri Som Nath(AW4)also proved the receipt EX. Aw4/1 regarding the payment of rent at the above referred for the month of December, 1972.He also admitted during cross-examination that the premises were temporarily rented by him for a period of one year. Thus the possibility cannot be ruled out that he had agreed to pay higher rent for a short spell of period. Moreover the bare perusal of the receipt Ex.AW4/1 shows that there is overwriting regarding the year, both in its body and under the signatures of Shri Kharati Lal Chopra.The revenue stamp affixed thereon also appears to have been removed from some other paper and repasted on it. Under these circumstances the possibility of this receipt having been created later, cannot be ruled out.

The testimony of Shri Gian Chand, Post-man(AW3) reveals that Kharaiti Lal had refused to accept the money order, certified copy of which is Ex.AW3/1 for Rs. 75/- and that thereafter he had returned the amount of the money order to Shri Inder Mohan Bhatia.There is no escape but to hodl that the testimony of this witness clearly establishes that Rs. 75/- were returned to the tenant Inder Mohan Bhatia when Kharaiti Lal landlord resumed to accept the same on 19.7.1977 as is apparent from the perusal of certified copy Ex. AW3/1 of the money order but strange enough Shri Inder Mohan has denied having sent money order having receive this amount back.Keeping in view that this amount of Rs. 75/- of the money order can be the rent for the three months at the rate of Rs. 25/- per month, the contention of the learned counsel for the appellant that it should be considered that it was rent of one month, is of no consequence especially when the landlord had not led any evidence that in the earlier application he had received the tender of rent by the tenant at the rate of Rs. 25/- under protest.So much, so in this petition he had not averred specially regarding the receipt of rent of Rs. 25/- per month tendered by the tenant in the earlier application under protest.Thus it transpires that in the earlier application wherein the tenant tendered the rent at the rate of Rs.25/- per months, the landlord was satisfied with the same which obviously implies that the rate of rent was Rs. 25/- PM.

The matter does not rest here as the perusal of the certified copy Ex. R2 of the application dated 31.1.1.1978 filed by the tenant u/s 10 of the East Punjab Urban Rent Restriction Act, 1949 against the present landlord, for she restoration of the supply of electricity, also shows that the rate of rent alleged by the tenant, was Rs. 25/- PM in para No. 1 but in the corresponding para NO. 1 of the reply, certified copy of which is Ex. R3, he has not specifically denied the rate of rent.He was bound to do so if actually the rate of rent Rs. 75/- per month and not Rs. 25/-.

Yet there is another documentary entry evidence in the shape of original objection petition Ex. R 1 filed by the landlord before the Commissioner, Municipal Corporation,jalandhar on 21.8.1978 raising objections against the notice u/s 103 of the Pubjab Municipal Corporation Act, regarding the assessment of the property tax in respect of the house in dispute at the annual rental of Rs. 5670/- Para 1(b) of this objection petition runs as under:

"Inder Mohan Bhatia, he pays Rs. 25/- per month inclusive of Rs. 5/- as electric charges, thus the rent paid by him ils Rs. 20/- per month, under protest, Actual rent is Rs. 75/- per month."

Para 1(b)(b) regarding the rate of rent paid by Baldev Raj tenant runs as under:

"Baldev Raj, the pays Rs. 30/- per month inclusive of Rs. 5/- as electric consumption charged and as such the rent paid by him is Rs. 25/- per month, under protest Actual rent is Rs. 100/- per month."

A bare perusal of Ex. R1 leaves no doubt that the above referred portion underlined by this Authority in para (a) and (b) of the objection petition is typed with a robin of different shade than the rest of its contents.The matter does not rest here as the perusal of paras (a)(b) as a whole leaves no doubt that under pertest. Actual rent is Rs. 75/- per month or 100/- as the case may be does not felt in with the rest of the narration of the respective paras, as in para (a) there is unqualified assertion that the rate of rent should be treated as Rs. 20/- per month as Inder Mohan Bhatia pays Rs. 5/- as electric charges so this unqualified admission on the part of the landlord in this objection petition clearly shows that the rate of rent was Rs/- per month and not Rs. 75/- per month.

The learned Rent Controller rightly ordered the institution of the proceedings u/s 340 Cr. P.C. against Kharati Lal landlord in view of this state of affairs regarding the interpolation in the objection petition Ex R1 obviously it was lowed to be produced by the respondent by way of additional evidence.

In view of the above state of affairs the finding of the Rent Controller that the rate of rent is Rs.25/- per month appears to be well founded and no case is made for interfering in the same.

Regarding the tenant being in arrears of rent, it transpires that admittedly according to the case of the landlord the tenant had tendered the arrears of rent at the rate of Rs. 25/- per month 1.1.1978 to 31.12.1978 in the earlier application.Strange enough the landlord has not brought any certified copy of the previous application on record in order to prove that he had accepted that tender under protest or that therein the had also claimed the arrears of rent since 1.1.1973 to 31.12.1978.Under these circumstances, the testimony of the tenant Inder Mohan Bhatia that he does owe any rent to the landlord at present, though not specific regarding the manner of payment of rent, would be sufficient to prove that he had already paid the entire rent as he had tendered rent from 1.1.1979 to 30.4.1079 at the rate of Rs.25/- on the first date of hearing in this application while according to the landlord,the tenant had paid rent from 1.1.1978 to 31.12.1978 in the previous application.Thus the findings of the learned Rent Controller in view of this state of affairs that the landlord had failed to prove the tenant to be in areas of rent, appears to be well founded."

Aggrieved by the orders of the Rent Controller as well as the Appellate Authority, the present revision by the landlord.

I have heard Ms. Harish Rekha, Advocate on behalf of the petitioner.Nobdday appeared on behalf of the respondent.With the assistance rendered by the learned counsel, I have gone through the records of this case carefully.

During the pendency of this revision, an application was also moved for leading additional evidence u/s 15(5) of the Act and under Order 41 Rule 27 C.P.C. and some documents were also placed on record in order to show that the tenant did not pay the rent of the room in question for the claimed period and that the rate of tenancy was Rs. 75/- per month and not Rs. 25/- per month.Before I deal with the submissions raised by the learned counsel for the petitioner, it will be proper for me to highlight tin this judgment the nature of the documents which have been relied upon by the landlord by way of additional evidence. Annexure A1 is the copy of the application moved by the petitioner u/s 13 of the Act in which he allegedly claimed rent at the rate of Rs. 75/- per months. This ejectment application was moved by the landlord on 28.12.1977. Annexure A2 is the emended rent petition dated 10.11.1978 moved in the same petition in which again it is reiterated that the rate of rent was Rs. 75/- per month and the rent due to the landlord is w.e.f.1.1./1973.Annexure A3 is the written statement of the tenant is which the tenant has specifically stand that he is the tenant in the demised premises at the rate of Rs. 25/- per month and he has already paid the rent to the petitioner-landlord upto December, 1977, but the petitioner does not issue receipt for the payment of rent.He tendered the rent for the months of January and February, 1978 along with interest and costs before the Rent Controller on the first date of hearing and this reply was filed was filed by the tenant on 13.3.1978/24.1.1979. Annexzure A4 is the statement of the couple of the tenant indicating that he tendered Rs.50/- as rent for the months of December, 1977 and January, 1978 at the rate of Rs.25/- per month and costs Rs.25/-, interest Rs. 5/-, total Rs. 80/-. This amount was accepted by the learned counsel for the landlord under protest on 21.2.1978.Annexure A5 is the copy of the order dated 31.1.1979 vide which the counsel for the landlord made a statement before the Rent Controller that he wanted to withdraw his petition due to formal defect of notice, with permission to file a fresh petition on the same cause of action. The petition was dismissed as withdrawn and the landlord was allowed to file a fresh petition on the same cause of action.

First of all I will dispose of the application u/s 15(5) of the Act and under Order 41 Rule 27 C.P.C. and in my opinion his application deserves to be dismissed on the short ground that these documents could be produced by the landlord before the Rent Controller.No reason has been given why these documents were not produced before the Rent Controller. Even if all the benefit is given to the landlord, still I am of the considered opinion that these documents are not going to improve the case of the landlord.Rather these documents only show that the landlord had been alleging that he let out the demised premises to the tenant at the rate of Rs. 75/- and that his rent is due w.e.f. 1.1.1973.But, on the contrary, the stand of the tenant is also very clear and specific that the rate of rent is Rs.25/- per month and he had paid the rent to the petitioner upto December, 1977 but he did not issue the receipts.The rent for the months of January and February, 1978 along with interest has been tendered in Court. In these circumstances, it has to be seen whether the rent for the months of March, 1978 to December, 1978 has been paid by the tenant and whether any rent is due to the landlord w.e.f.1.1.1973 upto December, 1977.First of all,I may take the period from March, 1978 to December, 1978. The landlord himself has alleged in para No.2 of the rent petition that the respondent-tenant had tendered the rent from 1.1.1978 to 31.12.1978, meaning thereby that the rent for the moths of March, 1978 to December, 1978 has already been paid to the petitioner.Now it has to be seen whether the landlord has been paid the rent from 1.1.1973 to 31.12.1977. By his own showing the landlord has placed on record a document which clearly indicates that it is the stand of the tenant himself that he had paid the rent upto December, 1977 at the rate of Rs. 25/- per month and the petitioner does not issue the receipt for the payment of the rent.The present petition was filed in the year 1979.If the tenant has not paid the rent from 1.1.1973 to 31.12.1977 i.e. for the period of 5 years, it is not believable that the landlord will sit silent over the matter and allow the tenant to continue with the premises without payment of rent.Apart from that, if it is also established on the record that this landlord ils a lawyer and is trying to realise enhanced rent at the rate of Rs. 75/- per month against the agreed rent of Rs. 25/- per month, then the stand of the tenant should be accepted that he had paid the rent also upto December, 1977.The landlord is relying upon a document Ex. AW4/1 dated 7.12.1972 executed by Kharati Lal Chopra to show that this property was on rent with one Som Nath and he was paying rent at the rate of Rs.75/- per month.Less said the better about this receipt.Firstly, the premises against which the receipt has been issued has not been connected.Moreover, there ils an interolation with regard to the year whether it pertains to December 1970 or December, 1972.The interolation is visible to naked eye. In these circumstances, the receipt which has been relied upon by the landlord cannot be acted upon and no wiehtage can be attached.The next document which has been relied upon by the landlord is a copy of the money order coupon dated 16.7.1977 allegedly sent by Inder Mohan Bhatia tenant to the landlord through which a sum of Rs.75/- has been allegedly remitted. From this document also the case of the landlord is not going to be improved.Firstly, there is no indication that this money order was sent by Inder Mohan Bhatia.The original of this coupon is not on the record.Also there is no indication that the rate of rent was Rs. 75/- per month.It can also be that Rs.75/- has been tendered as rent for three months.In may opinion, a crude method has been adopted by the landlord when he took the effects by fabricating the evidence in his own favour by managing a money order in his own name allegedly issued by Inder Mohan Bhatia in order to create the evidence that the rate of rent is Rs. 75/- per month. On the contrary, the stand of the tenant throughout was that the rate of rent was Rs. 25/- per months.The tenant also filed a petition u/s 10 of the Act against the landlord and the copyl of the petition is Ex.R2 on the record.This petition was filed on 31.1.1078. In para No. 1 of the petition, the tenant alleged that he is the tenant under the landlord on a monthly rental of Rs.25/- and is in occupation of a shop shown as red in the plan. It is further alleged by the tenant that the respondent is not issuing the receipts for the payment of the rent and in the month of January, 1978 the petitioner insisted the landlord to issue the receipt of rent but the landlord did not accede to his request and he stopped the electricity.He further alleged that the rent for the month of January, 1978 only is due to him.The landlord filed the reply to this application and to the allegations contained in para No. 1 of the petition, the landlord nowhere states that the rent of the shop was Rs. 75/- per month.Thus a reasonable inference can be drawn that the rate of rent was Rs. 25/- per month and not Rs.75/-.

The things to not rest here. The landlord filed some objections u/s 103 of the Pubjab Municipal Corporation Act, 1976 to the proposed assessment of the property and he state as follows:

"Inder Mohan Bhatia, he pays Rs.25/- per month inclusive of Rs. 5/- as electric charges, thus the rent paid by him is Rs. 20/- per month."

Later on it appears that the following words were added:

"under protest.Actual rent is Rs. 75/- per month."

The words referred to above are in different shade of type-writing.This will also show that to what extent this landlord can go. A person who can go to the extent of fabricating evidence in order to show enhanced rent of Rs. 75/-, cannot be believed when he alleges that the rent for the period from 1.1.1973 to 31.12.1977 has not been paid.

The learned counsel for the petitioner submitted that the money order was sent to the landlord in the month of July, 1977, still there is no proof of the payment of rent of July, 1977 to December, 1977.The argument is not acceptable to the Court for the reasons given above. The tenant throughout had been taking the stand that he had paid the rent upto 31.12.1977.He tendered the rent for the month of December, 1977 and January, 1978 on 21.2.1978 before the Court.The landlord himself has admitted in his petition that the rent for the months of January, 1978 to December, 1978 has been received. The rent for the months of January, 1979 to April, 1979 has against been tendered in Court.The tenant never waned to commit a default.Therefore, I am inclined to endorse the orders of the Rent Controller as well as the Appellate Authority, also there is a statement of the tenant that there the rental upto 31.12.1977 has already been paid. I will prefer the (sic).