Shri Dina Nath Sharma vs Shri Ram Kumar

R.L. Anand, J.—If no body wants to give the assistance to the court even in the matter of 1983, this court will be left with no other option but to decide the matter on merits, after perusing me record of the court below.

This is a landlord''s revision and has been directed against the order dated 5.1.1983 passed by the Court of the appellate authority, Chandigarh, under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called ''the Act''), as applicable to Chandigarh, who accepted the appeal of the tenant and dismissed the ejectment petition of the landlord with costs.

The brief facts of the case are that the petitioner filed an ejectment petition Under-section 13 of the Act for the eviction of the respondent Ram Kumar from one room and a kitchen forming the part of House No. 3365, Sector 35-B, Chandigarh on the allegations that he is the owner of the house and that Narain Dass is his attorney and has been duly authorised to file the ejectment petition. Respondent-tenant Ram Kumar had taken the promises in question on rent at the rate of the Rs. 90/- per month besides electricity and water charges. The rent was payable in advance and that the tenant has not paid or tendered the arrears of rent w.e.f. 1.9.1979.

Notice of the rent petition was given to the tenant who filed reply and took preliminary objection that the petition has not been properly drafted, signed and verified as required by law. He also took the objection that no site plan of the demised premises has been attached with the rent petition and that Narain Dass had no locus-stdndi to file the petition. On merits, the relationship between the parties as tenant and landlord was admitted. The tenant stated that earlier the petitioner filed an ejectment petition No. 155 of 1978 against the respondent which was decided on 8.12.1979 by the court of Shri. R.S. Sharma, P.C.S., Rent, Controller, and it was held that the rent was not payable in advance. It has been further pleaded by the tenant that he was authorised in writing on 18.10.1975 by the landlord to look after the water and electricity bills payable and maintenance of the house in question and, therefore, the respondent is entitled to claim the expenses incurred by him from time to time in respect of water and electricity bills and maintenance charges of the house in question w.e.f. 18.10.1975. It has been further stated by the tenant in the rent petition No. 155 that the respondent is entitled to deduct the various sums from the rent payable to the petitioner and, in this manner, he is entitled to deduct a sum of Rs. 533.75 from the landlord, the details of which have been given in the written statement itself. It was further pleaded by the tenant that he was required to pay Rs. 30/- on account of arrears of rent fro the month of February, 1978 and Rs. 90/- per month for the months of April and May, 1978, totalling Rs. 250/- but the respondent tendered Rs. 272.50 on account of arrears of rent and, thus, he is entitled to adjust another sum of Rs. 22.50 paid in excess. The petitioner claimed rent with effect from 1.9.1979 in the present petition which was instituted on 25.2.1981 and, therefore the rent was payable upto 30.11.1980. Respondent, therefore, tendered Rs. 1,000/- in the court on account of arrears of rent and Rs. 81/- on account of interest on the first die of hearing. Also, the stand of the tenant was that if the tender is found short, the same can be adjusted out of the excess amount of Rs. 556-25, i.e. Rs. 533.75 and Rs. 22.50, in view of the findings in rent petition No. 155 of 1978.

On the pleadings of the parties, the learned Rent Controller framed the following issues for the disposal of the petition :-

"1) Whether Narain Dass is attorney of the petitioner and authorised to file this petition? OP.

2) Whether rent is payable in advance by 7th of each month as alleged? OP

3) Whether ejectment petition is for partial ejectment as alleged? OR

4) Whether the respondent has made a valid tender on the first date of hearing? OR

5) Whether the petition has been properly verified? OP

6) Relief."

The parties led oral and documentary evidence in support of their case. While giving the findings in issue No. 4, the Rent Controller held as follows:-

"The respondent tendered Rs. 1081/- on account of rent and interest on the first date of hearing though he was required to tender Rs. 1523.3 5P. In these circumstances I hold that the tender made by the respondent on the first date of hearing is not valid. This issue is, therefore, decided against the respondent."

In view of the findings given by the Rent Controller on issue No.4 against the tenant, the ejectment petition was allowed and the tenant was directed to .vacate the demised premises within one month from the date of the'' passing of the order, i.e. 25.8.1982.

The tenant filed an appeal before the Addl. appellate authority, Chandigarh, who for the valid reasons given in the judgment allowed the appeal of the tenant and set aside the order of the learned Rent Controller and dismissed the ejectment petition of the landlord and aggrieved by the order of the Addl. appellate authority, dated 5.1.1983, the present revision.

The short point for determination is whether the tenant was in arrears of rent on the date of the filing of the ejectment petition and, if so, to what extent and whether the tenant had the right to seek adjustment of those amounts which have been paid by him in the account of the landlord.

Section 8 of the Act states that where any sum has, whether before or after the commencement of this Act, been paid which sum is by reason of the provisions of this Act, irrecoverable, such sum shall, at any time within a period of six months after the date of the payment, or in the case of payment made before the commencement thereof, be recoverable by the tenant by whom it was paid or his legal representative from the landlord who received the payment or his legal representative, and may without prejudice to any other method of recovery be deducted by such tenant from any rent payable within six months by him to such landlord.

It is the case of the tenant that the landlord earlier filed an ejectment petition bearing No.155 of 1978. Ex.R-1 is the judgment in that rent petition. This judgment is inter party. A reading of the judgment, Ex.R-1, would show that the amounts which the tenant wanted to claim from the landlord had been incurred by him. The operative portion of the findings of the Rent Controller were as follows:-

"According to him he had incurred expenses or repair and white washing of the building as authorised by the petitioner and he produced receipt Ex.R21 to R23. The respondent is entitled to deduct all these amounts from the rent payable to the petitioner. It is thus clear that infact the respondent has paid rent to the petitioner in excess and was not in arrears of rent on the first date of hearing of the case."

As per the findings of the Rent Controller, the tenant had tendered a sum of Rs. 1,121/- Whereas he should have tendered Rs. 1,523-25. Thus, there was deficiency of Rs. 402.25. If the tenant is held entitled to deduction of Rs. 5 56-25 towards rent from the landlord, it cannot be said that the tenant was in arrears on the date of the filing of the petitioner or on the first date of hearing. If the tenant made excess payment of the rent or incurs expenditure in !m authorised manner on behalf of the landlord, he is entitled to deduct that amount from the rent due to the landlord. The judgment, Ex.R-1, was inter party and the findings, given by the rent controller in that judgment had never been challenged by the landlord. Those findings have not been set aside by any court of competent jurisdiction.

In this view of the matter. I am in full agreement with the findings of the appellate authority, Chandigarh and do not see any merit in this revision, which is hereby dismissed with no order as to costs.