Punjab-Haryana High Court
(O&M;) Smt.Lajya Wati vs Sh.R.K.Sharma on 19 November, 2014
CR-4440-1998 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR-4440-1998
Date of decision: 19.11.2014
Smt. Lajya Wati (deceased) through her LR-Sandeep Jausja
..... Petitioner
Versus
RK Sharma
..... Respondent
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. Sandeep Jasuja, Advocate for the petitioner.
Mr. BR Gupta, Advocate for the respondent.
R.P. NAGRATH, J.
The petitioner sought eviction of respondent-tenant from the demised premises comprising of four rooms, kitchen, toilet, bathroom and verandah falling on the first floor of House No. 2527, Sector 22-C, Chandigarh. The premises was rented out to the respondent @ ` 1050/- per month excluding water and electricity charges w.e.f. 15.8.1988. The only ground of eviction was that the tenant has not paid or tendered the rent w.e.f. 1.9.1988. The respondent paid a sum of ` 550/- only as rent from 15.8.1988 to 31.8.1988. The learned Rent Controller, held the rate of rent to be ` 550/- per month and on that account, the tender made on the first date of hearing was found to be valid and thus, dismissed the RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-4440-1998 -2- eviction petition. The petitioner was also unsuccessful in appeal against the order dated 28.1.1994 passed by the learned Rent Controller, Chandigarh. The instant revision, therefore, has been filed against the concurrent findings of both the Courts below. The petition for eviction was filed by the landlady through her husband Parkash Chander as her attorney.
2. Respondent-tenant stated that tenancy was created in the presence of Harinder Singh S/o Giani Hari Singh, resident of Kothi No. 3, Sector 22-A, Chandigarh. Said Harinder Singh was a friend of one of the sons of landlady. The demised premises was in a dilapidated condition but the landlady had agreed to carry out the repair work i.e. white wash, painting, wooden and masonry work. The electric and sanitary fittings were also to be got installed, in addition to the fixation of 5 jali doors. The entire amount was spent by the respondent-tenant but he was not reimbursed for the said expenditure. The house was said to be built on a 7½ marlas of plot.
3. With regard to the payment of rent, the respondent gave reference to specific payments vide 19 cheques as detailed in paragraph No. 3 of the written statement. All the cheques are of different months each for an amount of ` 550/-. The respondent-tenant learnt from his banker that cheques from serial Nos. 2 to 12 were not deposited by the petitioner-landlady in her account and, therefore, there was an attempt to play fraud with the respondent. The respondent thus made a tender of rent @ ` 550/- per month from the period from 15.9.1988 to 14.8.1989 along with interest and costs assessed by the learned Rent Controller. RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document
CR-4440-1998 -3-
4. The petitioner in the rejoinder denied that she received the cheques as detailed in the written statement except the initial cheque of ` 550/- mentioned at serial No. 1. However, the respondent is said to have mischievously deposited the some amount in her account without her instructions. The said account of the petitioner stands closed on 16.1.1991.
5. I have heard learned counsel for the parties and carefully perused the judgments of both the Courts below as well as the records.
6. The learned Rent Controller, discussed the evidence comprising of various witnesses produced by the parties and came to the firm conclusion that rent of the premises was @ ` 550/- per month.
7. Learned counsel for the petitioner vehemently contended that the learned Appellate Authority has gone wrong in discussing the evidence with regard to income-tax returns relied upon by the petitioner for the assessment year 1988-89. The learned Appellate Authority observed as under:-
"15. ..........Apart from that, in the income-tax return for the year 1988-89 he has shown to have received rent for 12 months, whereas admittedly the tenant was in possession from 15.8.1988, so how could it be possible that he has received rent for 12 months. In view of the statement of RW-1 and RW-2, the premises were not worth living so I do not agree with the counsel for appellant that earlier the tenant must be paying ` 1050/- p.m. and i.e. why the receipt of rent is RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-4440-1998 -4- shown for 12 months......."
8. This observation of the learned Appellate Authority is not borne out from the income-tax return Ex. P-3 for the assessment year 1989-90. The statement of rental income attached with the return of the assessment year 1989-90 would shows the rent of ground floor of this house to be ` 11,400/- for 12 months @ ` 950/- per month. The evidence led on record is to the effect that first floor is on rent with State Bank of India, for residence of the officer of bank for which the bank is showing the transfer of amount to the account of landlady. Ex. P-7 to P-12 is the House Rent Register maintained by State Bank of India. The careful scrutiny of this bank statement would show that the bank was paying rent @ ` 950 per month for the ground floor of the said house to the land lady from 1.2.1986. This rate of rent continued up to January, 1989, as per the statement Ex. P-9 and thereafter, with effect from February, 1989, onwards the rent was increased to ` 1050/- which continue as per documents Ex. P-11 and P-12 up to April, 1991. This is also corroborated from the copy of statements of account Ex. P-13 from February, 1989 to January, 1990. The end of this page, would show that the account was closed and the outstanding cash was received from the bank by the landlady.
9. The return for the year 1989-90 relevant for the financial year ending on 31.3.1989 was filed on 3.7.1989. In this income-tax return, the landlady has returned the income of ` 7825/- in respect of the rent of first floor from 15.8.1988 to March, 1989 @ ` 1050/- per month which cannot possibly be accepted, as this evidence seems to be created RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-4440-1998 -5- by the landlady to support a wrong claim but the fact of the matter is that the landlady did not deposit about 11 cheques in her account which the respondent had issued for ` 550/- per month. Ex. P-3, further shows that the rent of the first floor was @ ` 160/- per month from April, 1988 to July, 1988 suggesting that the first floor was on rent with a previous tenant at the aforesaid rate. The plea that the rent was suddenly increased from ` 160/- per month to ` 1050/- per month when the first floor was rented out to the respondent cannot be possibly accepted.
10. The income-tax return for the next year 1990-91 is Ex. P-4 and the same was filed on 11.7.1990 before the Income-tax Authorities. It also seems quite unacceptable that the petitioner would show actual income towards the rent for the financial year 1989-90 but at the same time claiming that the rent for whole year had not been paid by the respondent-tenant. There is no indication that the aforesaid rental income was being shown on accrual basis only. It has also come on record that the cheques for the period from 20.8.1989 to 17.2.1990 for ` 550/- each from serial Nos. 13 to 19 were shown in the sundry account of the petitioner, as those were encashed at the time of closing the account and the credit of few of these cheques was made in the statements of account Ex. P-13. These 7 cheques were credited in the account vide vouchers Ex. P-14 to P-18.
11. AW-4 NK Ahluwalia, Deputy Manager, State Bank of India, brought the record of payment of rent of the ground floor of the house to the petitioner. In cross-examination, he admitted that there is always a difference in rate of rent in respect of the ground floor of the property. RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document
CR-4440-1998 -6- The above statement must be accepted as correct because the bank was paying the rent @ ` 950/- per month since 1986 which was increased to ` 1050/- only in February, 1989 whereas for the first floor the previous tenant was paying ` 160/- per month immediately before the said premises was rented out to the respondent. Admittedly, the cheque handed over to the petitioner for the first time was for ` 550/- and there is no documentary proof that it was the rent of 15 days period only and not for the whole month.
12. Learned Rent Controller discussed the evidence led by the parties and observed as under:-
"6. ............Said Harinder Singh has been examined by the respondent as RW-5, who has deposed in clear terms that he knows the parties and the tenancy was created in his presence. The rate of rent was settled @ ` 550/- p.m. He has further deposed that at the time of settlement of tenancy, it was settled that all works i.e. white washing, painting, wooden work, massaonry work, sanitary work and electric work etc. will be done by the respondent at his own costs and responsibility. RW 1 Sh. Girija Ram did the massanory work and the payment was made to him and other labours by the respondent in cash. Sh. Charanjit Singh RW 2 has stated that he did the white washing and painting. He was engaged by Sh. R.K. Sharma and he was paid by the respondent. RW-4 Sh. Harchand Singh proved the RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-4440-1998 -7- receipt Ex. RW 4/A as per which five jali doors were purchased by the respondent for a sum of ` 1339.25. This evidence led by the respondent clearly shows that the respondent renovated the premises in question before taking the same on rent and the rent was settled in the presence of Harinder Singh @ ` 550/- p.m. AW 4 has no relevancy because he has proved the rent paid by the bank which is on the G. Floor. AW 5 Kirti Kumar, who is son of the petitioner has deposed that he does not know any Harinder Singh. He is an interest witness and he is of no help to the petitioner to prove the rate of rent, as he has not deposed a single word about the rate of rent nor he was present at the time of settlement of tenancy. PW 6 Sh. Jaspal Singh brought the record in respect of the saving bank account No. 4949 in the name of the petitioner and proved the certified copies of the statement of accounts Ex. P 13 of the petitioner. He has further deposed that the amount of cheques Ex. P14 to P18 is lying in their sundry account. Each cheque is of ` 550/- p.m. RW 3 clerk CBI (Central Bank of India) brought the statement of accounts of respondent, which is Ex. RW 3/8 as per which cheques Ex. RW 3/1 to RW 3/7 were issued by respondent in favour of the petitioner. Ex. P-1 is the pass book of the bank of the RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document CR-4440-1998 -8- petitioner. Amount of two cheques of ` 550/- each were deposited and the petitioner has withdrawn the same before closing the said account No. 4949. The petitioner has not placed on file any other document or receipt showing rate of rent as ` 1050/- p.m. Admittedly the petitioner has received the Ist cheque of ` 550/- and as per the case of the petitioner that it was for half of the month, but no writing to that effect that Ist cheque of ` 550/- is for half of the month has been produced. As discussed above the testimony of AW 2 can not be relied, because it was not pleaded in the petition, on the other hand the evidence led by the respondent clearly shows that that rent was settled in the presence of Sh. Harinder Singh @ ` 550/- p.m. and the Ist cheque was accepted by the petitioner at that rate. The respondent also carried out the renovation of the house in question. The deposit of two cheques in the account of the petitioner and withdrawal of the petitioner of that amount shows that the plea of the petitioner that the respondent has not paid the rent w.e.f. 1.9.1988 is false..........."
13. So even if the learned Appellate Authority has gone wrong in making the observations with regard to the calculation of rental income as per income-tax returns, I find that the conclusions of the learned Rent Controller are quite correct and on proper analysis of the evidence. RISHU KATARIA 2014.12.24 15:23 I attest to the accuracy and authenticity of this document
CR-4440-1998 -9-
14. If that be so, the tender of rent on the first date of hearing @ ` 550/- per month for the period from 15.8.1988 to 14.8.1989 along with interest and costs must be held to be a valid tender. I do not find any scope of interference in the findings returned by both the Courts below in exercise of revisional jurisdiction of this Court. The instant petition is thus, dismissed.
November 19, 2014 ( R.P. NAGRATH )
rishu JUDGE
RISHU KATARIA
2014.12.24 15:23
I attest to the accuracy and
authenticity of this document