Kishori Lal vs Hari Chand

R.L. Anand, J.—This Civil Revision !ias been filed by Shri Kishori Lal against Shri Had Chand and it has been directed against the order dated 28.10.1982 passed by the Appellate Authority under the Haryana Urban (Control of Rent & Eviction) Act, 1973 vide which the appeal of respondent Shri Hari Chand was allowed by setting aside the order of the Rent Controller dated 15.9.80 and the application u/s 13 of the said Act was allowed and an order of eviction of the petitioner from the rented premises shown in red in the plan Ex. A.1 on the ground of non-payment of rent was passed and tenant was allowed a period of one month to vacate the demised promises.

The brief facts of the case are that S/Shri Munshi Ram and Hari Chand claimed themselves to be the landlords and owners of the portion of the property shown by the letters ABCD and in red colour in site plan Ex. A.1. According to them, they constructed the said premises in the year 1967 after obtaining the permission from the Municipal Committee, Narwana on 7.9.67. The premises was let out to the tenant on a monthly rent of Rs. 50/-. It was further pleaded by the landlords that one shop adjoining to the rented premises, was already in the possession of the respondent, now petitioner, in the capacity of a tenant and tenant was paying rent at the rate of Rs. 70/- per month for that shop which was constructed in the year 1957-58. Now the landlords claimed eviction of the demised premises on the ground of non-payment of rent with effect from 1.3.1974.

The notice of tlie rent petition was given to the Kishori Lal tenant who alleged that he took the shop consisting of three portions on rent at the rate of Rs. 70/- per month in the year 1960. The premises in dispute is a part of the tenancy of those premises which were taken into rent at the rate of Rs. 70/- per month. No independent tenancy was created between the landlords and him and in these circumstance, the question of non-payment of rent of the rented premises does not arise. It was also pleaded by the tenant that the landlord earlier filed a suit for eviction against him and the same was also dismissed. The appeal was also dismissed as withdrawn. Therefore, the present application for eviction is barred by the principle of resjudicata. From the pleadings of the parties, the learned Rent Controller framed the following issues :-

Whether the building in dispute was rented out by the petitioner to the respondent at the monthly rent of Rs. 50/- as alleged ?

Whether the respondent is liable to be ejected on the ground of non-payment of rent ?

Whether the petition is barred by the principle of res-judicata ?

Whether the building in dispute is a part of a shop which is on rent with the respondent on rent of Rs. 70/- per month, as if so, its effect ?

Relief.

The parties led evidence in support of their case and vide order dated 15.9.1980 the learned Rent Controller, dismissed the ejectment application u/s 13 of the Act.

Aggrieved by the order dated 15.9.1980, the respondent-landlord filed an appeal before the appellate authority u/s 15 of the said Act and the appellate authority vide impugned order dated 28.10.1982 set aside the order of the Rent Controller an a decided the issues in favour of the landlords and ordered for the eviction of the tenanted premises as stated in the earlier portion of the order. The reasons given by the appellate authority in paras No. 7 to 14 of its judgments are reproduced as under :-

"7. As regards the finding of trial Court on issues No. 1 and 4 is concerned, I am of the view that both can be taken up together because both these issues are inter-connected, and are dependent on one another. At the outset, it can be said that finding recorded by the trial Court to the effect that there is no relationship of landlord and tenant between the parties qua the disputed premises is incorrect and is beyond the pleading because it is not the case set up by any party. Landlords in their petition have alleged that this premises were rented out in the year 1967 at a monthly rent of Rs. 60/-, The tenant in reply alleged that these premises were given to him on rent alongwith main shop. So, it is not the case of tenant that he took possession of the premises forcibly without the consent of the owner and it is also not the case of landlords tenant-respondent ever forcibly occupied the premises. So, it is admitted between the parties that there is relationship of landlord and tenant between them qua the disputed premises. Only dispute is as to when the said tenancy was created.

The factum of tenancy could be proved by direct evidence. In this case, there is no documentary evidence to show as to when the disputed premises were let out. Only oral evidence is there on the file. But I am of the view that there are circumstances proved on the file in the instant case which shows that tenancy qua this premises was created separately than the tenancy of the shop. The first thing on this point is the rent note of the shop. According to tenant, he took the shop consisting of 3 portions on rent. The fact that shop was rented out vide a written rent note was there in the petition. The execution of the rent note relating to the shop was not disputed in reply. AW-3 Birbhan is the scribe of the rent note, copy of which is Ex.A.4. He deposed that it was scribed by him at the instance of parties and they signed on it after admitting it to be correct. Only suggestion to this witness was that tenant was not present at that time. Landlord also appeared and proved execution of this rent note Ex.A-4. To him the suggestion was that this rent note duly written was brought by landlord to the tenant and he obtained the signature of tenant on the plea that it pertains to shop of 3 portions. The tenant in his statement as RW-3 did not state anything about this rent note. He even did not state that this rent note does not bear his signature or under what circumstances it was signed by him. So under the above it will be presumed that this rent note was executed by tenant and perusal of this rent note shows that only shop of two khans was given on rent in the year 1960. So this belies the plea of tenant.

Now it has to be seen whether this disputed portion was in existence in the year 1960 when shop was let out or not. The landlord produced on the file Ex.A-2, site plan got sanctioned from Municipal Committee in the year 1957 and he constructed the shop as per sanctioned plan. In this plan, he obtained sanction for the construction of the disputed portion also but landlord stated that it was not constructed by him. He further stated that he obtained fresh sanction in the year 1967-68. Sanctioned site plans Ex.A-4 and A-5 have also been produced. These were not proved from Clerk of Municipality, Narwana A W4. So, these two documents show that disputed premises was constructed in the year 1967 after getting sanction of the Municipal Committee, Narwana in the year 1967, and also show that these premises were not in existence in the year 1960. So when the premises were not in existence in the year 1960, the question of their being let out in the year 1960 does not arise.

From the facts detailed above, two things emerges (i) that rent note Ex.AX was scribed relating to tenancy of the shop and it bellies the plea of tenant; (ii) that disputed portion was not in existence later on. So the question of this premises being let out alongwith shop does not arise.

Now question arises whether allegation of letting out these premises by landlord to tenant is proved or not as the case of both the parties is that there is relationship of landlord and tenant between parties qua these shops then the evidence of landlord will be preferred and will be accepted to hold that there is relationship of landlord and tenant between the parties which came into existence in the year 1967 and rate of rent is Rs. 50/-. So the finding of trial Court on issue No. 1 is set aside and in its place, both the issues i.e. issue No. 1 and 4 are found in favour of the landlord against the tenant.

As there is no plea about payment of rent so tenant was in arrears of rent qua this portion and is liable to eviction on this ground.

As regards finding of trial Court on issue No. 3, I am of the opinion that tenant has no right to challenge this finding in appeal because he has not preferred any cross-objection. If there is an adverse finding against a party and party does not file cross-objection, then he will have no right to challenge the said finding. For the same reliance may be placed on Choudhary Sahu (Dead) by Lrs Vs. State of Bihar, wherein their Lordships held as under :-

"Respondent has either to support the decree or to file a cross-objection if he chooses to challenge it. In absence of any cross-objection by the respondent appellate Court/authority not justified in reversing the finding given in favour of the appellant."

Even as regards merits of the plea are concerned, it is the case of tenant that suit for eviction by landlord was dismissed and the appeal was also dismissed as withdrawn, that no permission was granted to file fresh suit, so present petition is barred. It is true that landlord brought a suit for eviction on these very grounds in civil Court and in the said suit there were two issues whether civil Court has got jurisdiction and whether there is relationship of landlord and tenant between the parties qua the suit premises. The Sub-Judge came to the conclusion that Civil Court has no jurisdiction to try the suit and also found the other issue against the landlord. In appeal the suit was dismissed as withdrawn, I am of the view that this withdrawal cannot operate as res judiciata because there was no decision on merit and the finding was that civil Court has no jurisdiction and parties should go to Rent Controller. The counsel for the tenant respondent cited before me four authorities to show that if while allowing permission to a man to withdraw a suit, permission to file a fresh one is not granted, then it should be held that the said permission was not granted and the suit will be barred. There can be no dispute with the legal proposition. But question to be determined is whether this order of withdrawal can debar the man to approach a competent Court to decide the question or not. In the instant case, as the Civil Court held that civil Court has no jurisdiction, so landlords were not debarred from approaching the Rent Controller and to get eviction of the tenant. As such, the finding of trial Court on issue No. 3 is also liable to be confirmed and is confirmed."

This time the tenant is aggrieved by the order of the appellate authority and he has filed the present revision.

I have heard Shri Bhoop Singh, learned counsel appearing on behalf of the petitioner-tenant and Shri Sarwan Gupta, Advocate, appearing on behalf of the respondent-landlord and with their assistance have gone through the record of the case.

The defence taken up by the petitioner-tenant in the trial Court was very simple that the rented premises is an integral part of the tenancy regarding which rent was agreed to be paid at the rate of Rs. 70/- per month. In other words, the petitioner-tenant wanted to convey that the rented premises along with other shop constituted one unit and since he is not in default of the payment of any rent, therefore, the ejectment application is liable to be dismissed.

On the contrary, the stand of the respondent-landlord is that there was an independent tenancy with respect to the shop in question. This was a new portion which was constructed by them in the year 1967 after obtaining the permission from the Municipal Committee, Nar-wana and the premises was let out in the month of September, 1967 on a monthly rent of Rs. 50/-. In these circumstances, now the sole point for determination is whether the tenanted premises was let out separately to the tenant and if this fact is proved in the affirmative then whether the tenant has paid the arrears of rent at the rate of Rs. 50/- per month starting from 1.3.1974 as claimed by the landlord.

Admittedly, in this case no rent note was executed by the tenant in favour of the landlord nor it is the case of the landlord that any rent note was executed with regard to the premises in dispute but there are cogent circumstances to indicate that the tenancy of the present shop was independent one from the earlier portion of the shops which was let but to the petitioner-tenant. Ex.AX is the copy of the rent note. It is signed by Shri Kishori Lal in the capacity of a tenant. The reading of the same would show that Shri Kishori Lal had taken one shop on rent comprising of two portions on a monthly rent of Rs. 70/- per month with a clear stipulation that the landlord would have the right to utilise the roof of that portion and landlord would also be entitled to raise the construction. Had the premises been let out to the petitioner-tenant through that rent note then in that eventuality the recitals of the rent note should have been that one shop comprising of 3 khans has been let out to the tenant on a consolidated rent of Rs. 70/- per month. It is the common case of the parties that the third portion is in dispute and this is in occupation of the tenant. It is not the case of the tenant that he is occupying this portion in the capacity of a tres-passer. Rather on the contrary, it is the case of the landlord specifically that these premises were let out to the petitioner-tenant on a monthly rent of Rs, 50/- per month and the rent has not been paid. It is also the case of the landlord that he constructed the new portion after obtaining the sanction from the Municipal Committee, Narwana.

On the contrary, it is the stand of the petitioner-tenant that the premises regarding which the present ejectment application has been filed were in existence in the year 1960. There is ample evidence on the record when landlord produced on the file Ex.A.2 the site plan got sanctioned by him from the Municipal Committee in the year 1957. He constructed the shop as per sanctioned plan. In the said plan, he obtained sanction for the construction of the disputed portion also but for one reason or the other it could not be constructed by the landlord and, therefore, he had to obtain a fresh sanction which he took in the year 1968 for which the sanctioned site plans arc Exs. A.4 and A.5 on the record. Meaning thereby that the portion in dispute was constructed somewhere in me year 1967-68, though at one point of time the landlord wanted to construct the disputed portion when he submitted the site plan in the year 1957. Tenant wanted to take the advantage of that situation little realising that the landlord had taken a fresh sanction in the year 1967-68 and, therefore, these premises were not in existence in the year 1960. Therefore, the question of letting out the premises along with remaining two portions of the shop does not arise. Moment it is established that there was an independent tenancy with regard to the demised premises" then the assertion of the landlord has to be accepted because there will be no tenant without rent. The two portions of the shop were given on rent in the year 1960 on a monthly rent of Rs. 70/- but with the passage of time, one portion of the shop could fetch Rs. 50/- per month, therefore, the assertion of the landlord has been rightly accepted by the appellate authority that the third portion of the shop i.e. the present premises which are in one line with the two portions of the shop had been given on rent at a monthly rent of Rs. 50/- per month. The onus was upon the tenant to prove that he paid the rent at the rate of Rs. 50/- per month as claimed by the landlord. There is not an iota of proof to this effect. Therefore, the first appellate authority has rightly given the finding in favour of the landlord that the tenant has neither paid nor tendered the arrears of rent at the rate of Rs. 50/- per month with respect to the demised premises with effect front 1.3.1974 and, therefore, he is liable to be evicted.

It was then submitted on behalf of the learned counsel for the petitioner-tenant that the present application is barred by the principles of res-judicata. This argument cannot be accepted even for a moment because in the earlier suit which was filed by the landlord there is no finding to the effect that the premises in dispute was an integral portion of the tenancy regarding which there is no dispute.

Resultantly, there is no merit in this revision and the same is hereby dismissed with no order as to costs. The tenant is granted one month''s time to vacate the demised premises failing which it will be open to the respondent- landlord to file the execution preceding in the executing Court and get the possession according to law.

Revision dismissed.