Ram Dayal (died) through L.Rs and another vs Raghunath Parshad

S.K. Jain, J.—This tenants revision petition u/s 15(5) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the ''Act'') challenges the judgment dated 16th September, 1980 passed by Shri Krishan Kant Aggarwal, Appellate Authority Gurgaon, vide which he had allowed rent appeal No. 67 of 1980, filed by Shri Raghunath Parshad-landlord against the order dated 28th March, 1980 passed by Shri S. K. Kapoor, Rent Controller, Gurgaon, dismissing his application u/s 13 of the Act for ejectment of his tenant Ram Dayal.

Short facts of this case are that Raghunath Parshad-landlord Sled an application u/s 13 of the Act seeking ejectment of his tenant-Ram Dayal from the shop, fully described in para No. 1 of the petition, on the grounds:

(i) Non-payment of rent ;

(i) Sub-letting by Ram Dayal-Respondent No. 1 to Ved Parkash Respondent No. 2 ; and

(iii) The premises having became unit and unsafe for human habitation.

The Petitioner was contested by the Respondents. The Rent Controller found that:

(a) That the tender made by Ram Dayal Respondent No 1 on behalf of the firm M/s. Ram Dayal Ved Parkash was a valid tender ;

(b) Respondent Nos. 1 and 2 being partner of the firm M/s. Ram Dayal Ved Parkash there was no sub letting of the shop in dispute by Ram Dayal to Ved Parkash ; and

(c) The shop was safe and fit for human habitation. Resultantly, finding no merit in the petition, the Rent Controller dismissed the same vide his order of March 28, 1980.

Feeling aggrieved, the land-lord preferred an appeal. The learned Appellate Authority reversed the finding of the Rent Controller with regard to tender and held that there was no valid tender on account of its having been made by Ram Dayal on behalf of firm M/s Ram Dayal Ved Parkash and, therefore, the Respondents were liable to be evicted on account of non payment of rent. It was further held by him that the land-lord has failed to establish that the shop had been sub let by Ram Dayal to Ved Parkash ; and that the demised shop was not unsafe and unit for human habitation. As a result of his above finding, the Appellate Authority accepted the appeal, set-aside the order of the Rent Controller of March 28, 1980 and ordered the eviction of the tenant from the demised shop.

The judgment of the Appellate Authority of September 16, 1980 has been challenged in this revision petition by the two Respondents Ram Dayal and Ved Parkash.

I have heard Counsel for the parties at length. The sole argument advanced on behalf of the Petitioners is that the learned Appellate Authority had gone wrong in holding that the tender was invalid. On the other hand the learned Counsel for the land lord, Raghunath Parshad has supported the impugned judgment.

In order to appreciate the point involved in this revision petition, I have carefully scrutinized record, while tendering the arrears of rent Ram Dayal bad made a statement before the Rent Controller which when translated into English would read somewhat as under:

Stated that the house in dispute is on rent with joint firm M/s Ram Dayal Ved Parkash, Cycle Dealer, for the last 30 years at Rs. 14/- per month I am a Partner of the above said firm. According to the Petitioner, rent with effect from 1st January, 1977 to 30th April, 1977 was due towards us i.e. towards the firm. We are prepared to pay rent with effect from 1st January, 1977 to 30th June, 1977 by the first date of hearing, Rent for the period with effect from 1st January, 1977 to 30th April, 1977 amounting to Rs. 56 and that with effect from 1st May, 1977 to 30th June. 1977 amounting to Rs. 28 total amounting to Rs 84. Costs and interest may be assessed We are tendering the total amount to the Petitioner, payment be got made to him. We are also prepared to tender Rs. 25 on account of expenses and Rs. 2 on account of interest as assessed by the Court i. e. total amounting to Rs. 111. It may got be paid.

Dated: 22-6-1977.

Sd/- (Ram Dayal)

Thereafter. Shri Nand Kishore Gupta, Counsel for the land-lord made a statement which when translated into English would read somewhat as under:

The tender is not made by the right person i.e. Defendant No. 1, and is not valid The firm had no concern with the shop. It was never let out to the firm. For this reason, I do not want to accept the tender.

From the above statement, following facts are evident:

(i) That the arrears of rent, costs and interest as assessed by the Rent Controller were tendered by Ram Dayal-Respondent No. 1 in the capacity of Partner of the firm M/s. Ram Dayal Ved Parkash ; and

(ii) That the tender amount was not accepted by Raghu Nath Parshad on the ground that it was invalid on account of not having been tendered by Ram Dayal in his personal capacity rather he tendered it on behalf of the firm which was not his tenant.

In para No. 1 of the petition, it is pleaded that the demised shop had been let out to Ram Dayal at a monthly rent of Rs. 14 besides house-tax. In para No. 3(c), it is pleaded that Respondent No. 1 had sublet the said shop in favour of Respondent No. 2.

In their written statement, Respondents have taken preliminary objection No. 2 to the effect that firm M/s. Ram Dayal Ved Parkash, Cycle Dealers, was the tenant under Raghu Nath Parshad in the demised shop, so is their case in para No. 1 on merits.

Coming to the evidence on the point, I find that Raghu Nath Parshad appearing as AW-6 has testified that his father Lakhmi Chand had inducted Ram Dayal as tenant into the demised shop. Vide judgment and decree Exhibit A-2 and A-3 respectively passed in Civil Suit No. 387 of 1974 against his father, he had become owner of the demised shop with effect from 30th November, 1974. He has proved counter-foils Exhibits A-5 to A-15. Out of these counter-foils Exhibits A-9 to A-15 have been signed by his father Lakhmi Chand. Following chart chart can be prepared on the basis of the said counter-foils ;

Sr. No.

Exhibit & Date

Landlord

Tenant

Period for which rent paid

Signature

Remarks

1

2

3

4

5

6

7

1.

Ex. A-5 23-12-74

RaghunathPrashad Gupta s/o LakhmiChand

Ram Dayal s/o SanwalDass.

w.e.f. 1-1-1973 to 31-2-1973

(i) LakhmiChand on behalf of landlord (ii) Ram Dayal Tenant

�

2.

Ex. A-6 21-4-75

-do-

-do-

1-1-74 to 31-12-74

(i) -do-

(ii) -do-

3.

Ex. A-7 13-1-76

-do-

-do-

1-1-75 to 31-12-75

(i) -do-

(ii) -do-

4.

Ex-A-8 6-1-77

-do-

-do-

1-1 76 to 31-12-76

(i) -do-

(ii) -do-

Ram Dayal has written in his hand in Urdu language that rent w.e.f. 1-1-76 to 31-12-76 had been paid.

5.

Ex. A-9 5-3-69

LakhmiChandS/o LalaRam

Ram Dayal S/o SanwalDass

16-6-68 to 28-2-69

RamDayalTenant

Ram Dayal has written in his hand in Urdu language thatrentw.e.f. 1-6-68 to 22-2-69 i.e. of 9 months had been paid.

6.

Ex. A-10 8-1-70

-do-

-do-

28-2-69 to 31-12-69

-do-

Ram Dayal has written in his hand in Urdu language e.i. that w e f.28-2-69 to 28-12-69 had been paid.

7.

Ex. A 11 13-7-70

-do-

-do-

1-1-70 to 30-6-70

-do-

Ram Dayal has mention in his hand in Urdu language that he had paid rent of 6 months.

8.

Ex. A-12 20-1-70

-do-

-do-

1-7-71 to 31-12-70

Ram Dayal

Ram Dayal has written in Urdu language that rent for six months had been paid.

9.

Ex. A-13 12-1-72

-do-

-do-

1-1-71 to 31-8-71

-do-

Ram Dayal has written in Urdu language that rent eight months had been paid.

10,

Ex. A-14 14-4-72

-do-

-do-

1-9-71 to 31-3-72

ved Par-kash

VedParkash has written in Urdu language that rent for seven months had been paid

11.

Ex. A-15 16-1-73

-do-

-do-

1-4-72 to 31-12-72

Ram Dayal

Ram Dayal has written in his hand in Urdu language that rent of the shop for nine months w.e f. J-4-72 to 31-2-72 had been paid.

From the above chart it is evident that:

(i) Prior to 1974, Ram Dayal in his individual capacity was tenant in the demised shop under Lakhmi Chand father of Raghunath Parshad. Ram Dayal had been making payment of rent right from 5th March, 1969 to 16th January 1973 except that the rent for the period with effect from 1st September, 1971 to 31st February, 1972 which was paid by Ved Parkash.

(ii) Ram Dayal had been making the payment of rent of the demised shop right from 23rd December, 1974 to 6th January, 1977 and Lakhmi Chand father of Raghunath Parshad had been receiving rent on behalf of his son.

Learned Counsel for the tenant has tried to make capital gain out of counter-foil Exbibit A-14 and has vehemently argued that the very fact that Ved Parkash had also paid the rent shows that firm M/s Ram Dayal Ved Parkash was the tenant in the shop. This argument attractive at first sight, is, in my opinion, not tenable on the sound appreciation of the evidence on record. As mentioned hereinbefore right from 5th March. 1969 to 6th January, 1977, Ram Dayal had been making payment of rent in his individual capacity. He had been signing the counter-foils. He had never objected that in the column of tenant he had been shown in his individual capacity. The receipts of these counter foils are definitely in possession of Ram Dayal. Had the name of the firm been mentioned in the column of tenant of those receipts, he would have certainly produced them in the Court. But he has not produced the same for obvious reasons. Stray counter-foil Exhibit A-14 which has been signed by Ved Parkash would not go to prove that the firm was the tenant. In the column of tenant in this counter foil also Ram Dayal son of Shri Sanwal Dass has been mentioned. Ved Parkash is the brother of Ram Dayal and if he had paid the rent to the land-lord once and had obtained the receipt while signing the counter-foil in token of having received the receipt, it does not mean that firm M/s Ram Dayal Ved Parkash was the tenant. Counsel fur the Appellants has taken me through the counter-foils mark A, A-1 to A-D and has argued that in these counter-foils, firm M/s Ram Dayal Ved Parkash has been shown as the tenant Since these documents had not been proved and exhibited and had only been marked the same cannot be read into evidence. Even if these documents are taken into consideration then they do not further the case of the Appellants for the reason that in counterfoils Mark A-3, A-4, A-5, A-6, A-7, A-9, A-10, A-11 and A-12, Ram Dayal alone has been shown as the tenant. No doubt, in counterfoils Mark A, A-1 and A 2 firm M/s Ram Dayal Ved Parkash has been shown in the column of tenant but these unproved documents would not prove that the firm was the tenant. In any case these three stay instances would not have the effect of rebutting the overwhelming documentary and oral evidence to the contrary on record.

From the appreciation of the above evidence, the irresistible conclusion that can be arrived at is that Ram Dayal was a tenant in the demised shop in his individual capacity and the stray counterfoils Exhibit A- 4, Mark A. A-1, A-2 even if these marked documents are taken into considerations, do not prove that the firm was the tenant in the demised shop under the landlord Raghunath Parshad. The oral testimony of Ram Dayal AW-4 and Ved Parkash AW-5 to the effect that firm M/s Ram Dayal Ved Parkash was the tenant of the demised shop does not prove their case Ram Dayal has also testified that in the first instance a rent note was executed on behalf of the firm M/s Ram Parkash and brothers and then a second rent note on behalf of the firm M/s Ram Dayal Ved Parkash was scribed by Shri Devi Ram Petition Writer who had since died. This part of his testimony has also been corroborated by Ved Parkash. Raghunath parshad has denied these assertions made on behalf of the tenants. No reliance could be placed on the above said testimony of Ram Dayal corroborated by Ved Parkash for the simple reason that no rent note as alleged had been summoned and got produced on the file Secondary evidence in the shape of the entries in the petition-writer register could be proved on the record in the alternative. Even if, the petition-writer had died his register could be summoned It is not the case of the tenants that the said register of the petition-writer could not be made available There is nothing on record to show that they had put in any effort to summon the said register, nor the alleged rent notes had been summoned from the landlord Besides what has been stated above Raghunath Parshad had appeared as a witness in affirmative but it was not put to him that firm M/s Ram Dayal Ved Parkash was a tenant under Lakhmi Chand and that rent note evidencing this fact had come into existence.

Moreover, if the case of the tenants is taken as its highest and it is accepted for the sake of arguments that receipts of which Exhibit A-13, Mark A, A-1, A-2 were the counter-foils, had been issued in favour of the firm M/s Ram Dayal Ved Parkash even then it could not be said that firm M/s Ram Dayal Ved Parkash and not Ram Dayal in his individual capacity was the tenant in the demised shop. It is now well settled that issue of receipts in the name of a partnership firm would not make the said firm a tenant when the premises had been let out to a particular tenant in his individual capacity. In holding this view I am fortified by the ratio in Bhushan Durg House v. Des Raj 1980 (1) R.C.R. 491.

Since Ram Dayal had tendered rent on behalf of the firm although be was a tenant in his individual capacity. The tender made by him was certainly not valid. A reference in this behalf can be had from Ram Gopal and Ors. v. Om Parkash (1963) 65 P. L R. 1112.

In view of the above discussion, I am satisfied that the impugned judgment of September 9, 1980 passed by the Appellate Authority was proper and legal and no fault can be found with it. Consequently, it is affirmed.

Resultantly, this revision petition fails and is dismissed with costs. Counsel fee is quantified at Rs. 1,000.