Smt. Prem Kaur vs Shri Ajit Singh

This revision petition is directed against the order of Appellate Authority, Chandigarh, dt. 11th of April, 1994 whereby the appeal filed by Ajit Singh (hereinafter referred to as the tenant) against Smt. Prem Kaur (hereinafter referred to as the landlady) was accepted and the order dt. 22-1-1993 passed by the Rent Controller, Chandigarh for eviction of the tenant from the premises in dispute was set aside.

According to the averments in the eviction application, Shri Bhulla Singh husband of the landlady was the owner of House No. 526, Sector 20-A, Chandigarh. He expired in March, 1985, leaving a Will entitling the landlady to receive the rent from the tenant. The respondent is tenant on the entire ground floor of the said house consisting of drawing, dinning, two bed-rooms, kitchen, latrine, bath, verandah etc. at the rate of Rs. 900/- per month excluding water and electricity charges. Eviction of the tenant is sought firstly on the ground that the tenant neither paid nor tendered rent to the landlady from March, 1985 onwards and secondly on the ground that the tenant had demolished the front compound wall and constructed a big gate and iron railing on the open space without the written consent of the landlady and thereby has materially impaired the value and utility of the demised premises.

The tenant in his written statement took up preliminary objections that the landlady had been receiving rent from him right from March, 1985 without issuing any receipt and that the landlady had not filed any suit for recovery of rent prior to the present ejectment application. It was further pleaded that the tenant had shown payment of rent in his Income Tax return and that the landlady has filed the present ejectment application with mala fide intention to enhance the rent which was initially fixed at the rate of Rs. 350/- per month and thereafter it was increased to Rs. 400/- and then to Rs. 500/-and presently the tenant was paying rent at the rate of Rs. 600/- per month. It was next pleaded that the rent for the month of September, 1992 was sent by Money Order for payment to the landlady who refused to receive the same. On merits ownership of the demised premises as well as relationship inter se between the parties was admitted. However, it was pleaded that at present the rent payable was Rs. 600/- per month and that rent from September, 1992 to November, 1992 at the rate of Rs. 600/- along with costs and interest was tendered for payment to the landlady on the first date of hearing. It was further pleaded that the family members of the landlady own car and buses and probably the gate was enlarged and widened to park car and buses belonging to the landlady. Other averments made in the application were denied.

In replication the landlady denied the averments made in written statement and reiterated those made in the application.

From the pleadings of the parties, the following issues were framed by the learned Rent Controller :--

(1) whether the rate of rent is Rs. 900 / - per month? O. P. P.

(2) if issue No. I is proved, whether the rent tendered is short and invalid? O.P.P.

(3) whether the respondent has impaired materially the value and utility of the building? If so its effect? O.P.P.

(4) Relief.

The learned Rent Controller held that the rate of rent was Rs. 600/- per month and that the tenant was in arrears of rent with effect from March, 1985 till August, 1992 at the rate of Rs. 600/- per month and that the rent tendered was short and invalid. It was further held that the construction of a big gate and iron railing (Jangla) did not materially impair the value and utility of the demised premises. As a result of the said finding the learned Rent Controller ordered the eviction of the tenant from the demised premises within two months from the date of the passing of the said order. As stated above, on appeal filed by the tenant the order of the learned Rent Controller was set aside by the Appellate Authority and this revision petition has been filed by the landlady.

The learned counsel for the parties were heard.

On behalf of the landlady it was urged that in the absence of production of any receipt concerning payment of arrears of rent due since March, 1985 to August, 1992, to the landlady, the learned Appellate Authority had gravely erred in holding that the tenant was not in arrears of rent and that he was not liable to be evicted from the demised premises on that ground. On behalf of the tenant it was submitted that the tenant had been paying rent due in respect of the demised premises to the landlady right from March, 1985 to August, 1992 but the landlady had not issued any receipt and that the landlady has not filed any suit for recovery of rent and that payment of rent made by the tenant had also been shown in his Income Tax return and that rent from September, 1992 to November, 1992 at the rate of Rs. 600/- per month together with interest and costs was tendered in the court and accepted by the landlady.

Reliance in this respect was placed on the Money Order receipts Ex.R-3 and R-4. Receipt Ex.R-3 shows that amount of Rs. 1800/- was sent by the tenant by Money Order for payment of rent for a period of three months whereas receipt Ex.R-4 shows that an amount of Rs. 600/- was sent by the tenant for payment of rent for one month. However, in neither of these two receipts name of the individual to whom the said rent was sent finds mention. Nor there is any Specific mention about the exact period for which the rent was sent through receipts Ex.R-3 and R-4. In these circumstances mere report on the said receipts that the person to whom the Money Orders were sent had refused to accept the same to my mind would not be sufficient to prove affirmatively that the tenant had actually sent the rent with regard to the demised premises to the landlady. Admittedly the tenant had tendered rent before the Rent Controller for payment to the landlady from September, 1992 to November, 1992. There is no material evidence on the record as far as payment of rent prior to September, 1992 is concerned except the oral testimony of the tenant, who while appearing as RW 1 deposed that he had been paying rent at the rate of Rs. 600/ - per month to Tarsem Singh son of the landlady who used to come to his shop for collecting the rent every month and sometimes he paid it at his (Ajit Singh''s) house. The tenant further deposed that he had never received any receipt of rent either from the landlady or her son Tarsem Singh since the inception of the tenancy. Since the tenant has specifically pleaded in the written statement that he had already paid the entire rent, the burden to prove that the tenant was not in arrears of rent was on the tenant and not on the landlady. I find support in my view from the single Bench authorities of this Court in Vas Dev v. Ashok Kumar 1992(1) P LR 374 and Kishori Lal v. Smt. Shanti Rani 1992 (1) P LR 531. The evidence produced by the landlady in my view is sufficient to rebut the evidence produced by the tenant concerning the alleged payment of rent. On the basis of this evidence in my opinion the learned Rent Controller has rightly, observed that the tenant was in arrears of rent.

Faced with this situation, the learned counsel for the tenant placed reliance on the single Bench authority of this Court in Vijay Kumar v. Muni Lal Jain, 1986 (1) R CR 156 wherein application for ejectment was filed after about six years from the inception of the tenancy and the landlord did not appear in Court and his son appeared as his attorney. Keeping in view these facts, it was observed that il could not be held that the tenant was in arrears of rent. In the instant case, copy of plaint Ex.R-5 shows that the landlady "had filed a suit for recovery of Rs. 44,540/- as arrears of rent including interest at the rate of 20 per cent per annum from June, 1990 to May, 1993. Mere fact that the evidence produced by the landlady has been disbelieved in respect of rate of rent in my view would not be sufficient to disbelieve the testimony of Tarsem Singh son of attorney of the landlady concerning non-payment of rent prior to September, 1992 particularly when the landlady had filed a suit for recovery of Rs.44,540/- as arrears of rent for the period for which the recovery of arrears of rent was within limitation. The authority in Vijay Kumar''s case (supra) is thus not applicable to the facts of the case in hand and is clearly distinguishable.

For the foregoing reasons the impugned order passed by the learned Appellate Authority cannot be legally sustained. Thus the impugned order passed by the learned Appellate Authority is set aside. The order of eviction of tenant from the demised premises passed by the learned Rent Controller is restored. The tenant, however, is granted three months'' time to vacate the demised premises and hand over its possession to the landlady failing which the landlady shall be entitled to execute the order of eviction passed in this case. This revision petition is accordingly allowed with no order as to costs.

Petition allowed.