Punjab-Haryana High Court
Parduman Singh Puri Son Of Sh. Kartar ... vs Smt. Tejinderjit Kaur Wife Of Sh. ... on 22 November, 2012
Author: K. Kannan
Bench: K. Kannan
C.R. No.3040 of 1999 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.3040 of 1999
Date of Decision.22.11.2012
Parduman Singh Puri son of Sh. Kartar Singh Puri .....Petitioner
Versus
Smt. Tejinderjit Kaur wife of Sh. Surinder Singh Dua and another
....Respondents
Present: Mr. Sandeep Vermani, Advocate
for the petitioner.
None for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ?
No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.(ORAL)
1. The revision petition is against the order of the Appellate Court reversing the decision of the Rent Controller ordering eviction of the tenant. The grievance of the petitioner was that the tenant had not paid rent in the manner agreed to between the parties during the rent deed, which stipulated a rent of ` 1300/- and the rent was being paid @ ` 1200/- per month. The petition was filed complaining that the tenant was liable to pay the shortfall in rent from 01.10.1991 to 31.09.1992. The plea in defence by the tenant was that although the rent was fixed at ` 1300/-, the tenant pleaded for remission and the landlord had also out of grace allowed for remission of ` 100/- and was collecting the rent alone @ ` 1200/-. The fact that the landlord was receiving the rent at ` 1200/- itself was not denied but he had stated that this was purely by way of matter of grace and he was entitled to plead for the entire rent as agreed originally between the parties at any time and he had demanded subsequently that the rent shall only be ` 1300/- per C.R. No.3040 of 1999 -2- month, which was not paid. The Court found that there could not have been a variation of rent to what was agreed to between the parties through a written instrument and refused the plea of the tenant that his tender was appropriate. He was ordered to be evicted on account of the short tender as found by the Rent Controller.
2. In appeal to the Appellate Court, the decision was set aside and the Appellate Court had found that the landlord had collected the rent @ ` 1200/- per month and he was not entitled to complain of short tender and seek for eviction on that ground.
3. Learned counsel appearing on behalf of the landlord would refer to decision of this Court in Ameek Singh Vs. D.N. Gaur, Chief Engineer, Nuclear Power Corporation of India Limited 2010(1) RCR 22 where the Court was dealing with the issue of short tender where the written agreement between the parties had stipulated rent at ` 4000/-. The tenant was paying rent only at ` 3,000/- and he expressed his difficulty to pay the rent at ` 4,000/-. In evidence before the Court, the Rent Controller had stated that the tenant told that he could give rent only at ` 3,000/- per month and the landlord agreed for the same. As a matter of fact in that case, the tenant never paid even at that rate. This Court had found that the tenant was liable to pay the rent @ ` 4,000/- and was liable for ejectment for non-payment of rent. It was also observed that if the tenant had paid the particular amount for which the landlord had given concession, he could have been entitled to such concession only to ward to eviction but when he did not pay any amount at all, the landlord would be entitled to compute the subsisting liability at ` 4,000/- per month.
4. The above judgment is the only basis on which the learned counsel would argue for supporting his position that the tenant was bound at all times to abide by the written terms of the agreement of tenancy and if the C.R. No.3040 of 1999 -3- landlord was suing for ejectment on the ground that there had been shortfall in the rent, he would bound to pay the same without being given the benefit of lesser amount in the manner agreed between the parties. The judgment in Ameek Singh's case (supra) was rendered in the context of the parties agreeing to a situation where a tenant expressed that he was not able to pay ` 3,000/- and the landlord giving compensation for receipt of lesser amount but it turned out that even the amount, which was agreed to be received lesser than what was stipulated, was not being paid by the tenant. I had, therefore, held that if the agreed rent was also not paid, which if he had paid, he could have staved off eviction. The landlord shall always be competent to rely on the terms of the agreement and then enforce eviction that no amount had been paid at all. In this case, the situation is not that the tenant was not paying the rent, which had been subsequently agreed between the parties, viz an amount of ` 1200/-. His complaint is that after some time, he again demanded ` 1300/-, which the tenant was willing to pay and therefore, there arise a default for balance of amount as ` 100/- per month. This, in my view, would make all the difference, for the lease itself is not required to be in writing. The oral lease was perfectly tenable in law. If the tenant was pleading for a unilateral alteration in terms of Section 92 of the Evidence Act, such a parole evidence will be excluded. However, if both the parties agree subsequent to the execution of the lease that the rent could be reduced by Rs.100/- and the subsequent tenders had been received by the landlord without any form of remonstration, then the landlord cannot again unilaterally increase an increase that could come subsequently to the rejection of the mutual agreement between the parties.
5. If the Court was any way finding that the landlord was entitled to an enhanced rent on the basis of the written terms of a lease deed then it ought to have determined an amount, which was payable and directed the C.R. No.3040 of 1999 -4- amount to be paid within a particular date in the manner contemplated by the judgment of the Supreme Court in Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corporation, AIR 2002 SC 2004. In this case, the alleged default in payment of rent of ` 100/- in the manner referred to above could not be stated to be a default in the eye of law. I have already observed that the parties had agreed for a reduction and the tenant was paying the said amount without default. In such a situation, a subsequent increase, which the landlord was seeking for by reference to a lease deed shall be impermissible.
6. Learned counsel also states that the tenant had tendered the rent only upto August, 1992 and he had not paid the rent for the subsequent month of September, 1992. If there had been a default at the first hearing and the issue was itself not settled to what was the rent payable as whether ` 1200/- or ` 1300/-, the eviction could not have been ordered without even directing the said amount of alleged default to be deposited at the first hearing. The first hearing as interpreted in the judgment in Rakesh Wadhawan's case (supra) was the date following the provisional adjudication and it would include the hearing that had resulted subsequent to an adjudication made regarding the actual rent which is payable. In this case, I have held that the rent which is payable is only ` 1200/- and if there had resulted a default, I would afford to the tenant an opportunity to pay the rent for one month pending for September, 1992. There is no representation for the respondent-tenant and therefore, it becomes necessary that the tenant is properly apprised about the order that is passed by this Court.
7. The landlord is at liberty to issue the notice to him apprising C.R. No.3040 of 1999 -5- him of the order passed by this Court and the tenant shall become liable to pay the rent at ` 1200/- for the rent in September 1992 within 30 days from the date of receipt of the notice. If the amount is still not paid, it would constitute the default in the manner contemplated by law and the landlord would be entitled to secure an order of ejectment.
8. The order passed now, therefore, is conditional that the tenant pays the rent of ` 1200/- for the month of September within the time stipulated as above and if the amount is not paid or tendered in the manner contemplated by law, the order of Appellate Court shall stand set aside and the landlord would be entitled to secure the ejectment in the execution proceedings. The order of the Appellate Court stands modified in the said manner and the revision petition is disposed of as above.
(K. KANNAN) JUDGE November 22, 2012 Pankaj*