Punjab-Haryana High Court
Raunki Ram vs Sham Lal Jain on 19 September, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.2973 of 2013 (O&M)
Date of decision: 19.09.2013
Raunki Ram ......Petitioner(s)
Versus
Sham Lal Jain ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Vijay Lath, Advocate for the petitioner.
Mr. Sandeep Jain, Advocate for the respondent.
Rakesh Kumar Garg, J.
This is tenant's revision petition challenging the impugned judgment dated 4.12.2012 of the Appellate Authority dismissing the appeal of the petitioner whereby the order dated 13.12.2011 of the Rent Controller has been affirmed.
The respondent-landlord filed an eviction petition against the tenant on two grounds i.e non payment of rent w.e.f. 1.1.2001 @ Rs.800/- per month and that the petitioner has made material alterations which have resulted into diminishing the value and utility of the demised premises in question.
Upon notice, the petitioner-tenant appeared and filed written statement raising various preliminary objections admitting that he was inducted as a tenant by the co-owners with the consent of each other. It was specifically stated by the petitioner that he had paid the rent till date. However, the respondent was not issuing the receipts. The petitioner further denied that any structural changes in the premises in dispute were Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh made by him. All other material averments were denied and dismissal of the petition was sought.
In support of his case, the respondent-landlord stepped into the witness box as PW-1. On the other hand, the appellant-tenant stepped into the witness box as RW-1 and his evidence was closed by the order of the Court. The appellant-tenant also tendered into evidence copies of the receipts as Ex.R-1 to R-11.
Under issue No.1, it was held that there was nothing on record on the basis of which it could be taken that rent of the demised premises regarding disputed period has been paid. Resultantly, it was held that the petitioner was in arrears of rent. It was also observed that the petitioner has taken a false plea that entire amount of rent has been paid but there is no rent receipt. Under issue No.2, it was held that since the petitioner was in arrears of rent, he was liable to be evicted.
The relevant paragraphs of the order of the Rent Controller reads thus:
"After hearing the rival contention raised by learned counsel for the parties and perusing the file carefully, this Court does not find any substance in the argument as advanced by learned counsel for the respondent whereas the argument advanced by learned counsel for the petitioner carries substance. The present rent petition has been filed on 7.2.2007. The rent has been claimed w.e.f. 1.1.2001 at the rate of Rs.800/- per month when the rent petition has been filed on 7.2.2007. The rent would be due Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh upto 31.12.2006. The rate of rent in this case is not disputed. Now it is required to be seen as to whether the rent has been deposited already or not. There is only photostat copies of some receipts, which are only been marked as Ex.R1 to R11. The original has been claimed to be in possession of the respondent but the same has not been produced on record. Otherwise, perusal of the receipts in question does not reveal that it is qua the rent of demised premises or not. Moreover, these receipts are not for Rs.800/- each. Rather these are of Rs.500/- each.
In the given facts and circumstances of the case, no reliance can be placed upon such like receipts. Apart from this, there nothing on the record on the basis of which it can be taken that the rent of the demised premises regarding disputed period has been paid. Resultantly, this Court has no hesitation to hold that the respondent is in arrears of rent."
Appeal filed by the petitioner against the aforesaid order of eviction passed by the Rent Controller was also dismissed by the Appellate Authority vide impugned judgment and decree dated 4.12.2012.
The relevant paragraphs of the aforesaid judgment reads thus:
"Both the points are taken up together to avoid repetition of discussion. In case we go through the pleadings of the parties, the petitioner Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh in his petition has demanded arrears of rent with effect from 01.01.2001, whereas the petition was filed on 07.02.2007. Therefore, as observed by the learned Rent Controller, the respondent was liable to prove the payment of arrears of rent with effect from 01.01.2001 to 31.12.2006. So far as rate of rent is concerned, it has been stated to be Rs.800/- per month and this fact has been admitted to be correct in reply to the application.
However, a plea has been taken by the respondent that he has paid the rent till date to the petitioner, but on the record, he has placed rent receipts Ex.R-1 to Ex.R-11. Except Ex.R-1 and Ex.R-2, other receipts are prior to the period in question. Although the originals are not on the record, but the properly number has not been mentioned and these receipts are also with regard to payment of Rs.500/- per month, whereas the rate of rent of the demised premises is Rs.800/- per month. Therefore, possibility of these receipts belonging to some other property cannot be ruled out. Therefore, certainly, the appellant/respondent has not been able to prove on the record that he has paid the arrears of rent, as demanded in the petition.
Another preposiiton has been raised by the counsel for the petitioner during the course of Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh arguments that provisional rent was not assessed and at the time of passing of ejectment order, no time was given to the respondent/appellant to clear the arrears of rent, as per the case titled as Rakesh Wadhawan vs. M/s Jagdamba Industrial Corporation reported in 2002(2) RLR 36. However, to rebut this legal reposition, the counsels for the respondent have relied upon the judgment reported in 2012 (2) HLR 23 Mohd. Giaz vs. Mohd. Gulzar and another. In that case, the tenant defended his case of eviction denying the liability of any arrears of rent, but no evidence including receipt of rent were produced in support of his claim. The tenant held liable to eviction. No benefit can be given from Rakesh Wadhawan's case. In this judgment, it has been further observed that when the rate of rent is admitted, then the rent Controller was not under obligation to fix the provisional rent. This duty is casted upon the Rent Controller, only in case the rate of rent is denied by the respondent and another rate of rent is set up by the tenant. On the same lines is another judgment reported in 2010 (Suppl.) CCC 456 Ameek Singh vs. D.N. Gaur, Chief Engineer, Nuclear Power Corporation of India Limited. In that case, the plea taken by the tenant that he had already paid the arrears of rent Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh was found to be false, eviction order was passed. Eviction order was challenged on the ground that no provisional rent was fixed and no opportunity was given to the tenant, it was held by our Hon'ble High Court that this plea is not tenable. Whereas, on the other hand, counsel for the appellant has relief upon the judgment reported as 2004(2) RLR 640 Kuldip Singh vs. Ram Kishan. In that case eviction was sought on the ground of arrears of rent. Tenant paid the arrears, but not the interest and cost. Order of eviction of tenant was set aside on the ground that the Rent Controller did not follow the provisions of Section 13(2)(i) of the Act. Another judgment relied upon is 2006(3) CCC 402 Munish Bhatia vs. Smt. Kishni Devi & anr., in which it has been observed that the Rent Controller is to provisionally assess the arrears of rent, interest and costs of litigation. However, in the present case, the tenant has already taken the plea that he has paid the rent. Therefore, the provisional rate of rent was not assessed, whereas costs of the application was assessed and which was tendered on 9.4.2007 as Rs.300/- by Sh. L.S. Kahlon, Advocate, counsel for the respondent. However, the respondent has failed to prove the payment of arrears of rent, as discussed above and in view of the judgments Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh relied upon by the counsels for the respondent, which are latest judgments, where the tenant/respondent has taken the plea that he has already paid the arrears of rent, then the ratio of law, decided in Rakesh Wadhawan's case will not apply and in case tenant/respondent has failed to prove the payment of arrears of rent, as pleaded by him, then eviction will follow. Therefore, this Authority is of the opinion that the learned Rent Controller was fully justified to give the findings that the respondent/appellant has failed to prove on the record that he has paid the arrears of rent, as demanded in the petition, then certainly, this authority does not find any fault in the findigns recorded by the learned Rent Controller and the same are hereby affirmed."
Still not satisfied, the petitioner has filed the instant revision petition challenging the impugned orders.
Learned counsel for the petitioner has vehemently argued before this Court that in the present case, provisional rent was not assessed by the Rent Controller, and therefore, the Rent Controller was under legal obligation to grant opportunity to the petitioner to pay the arrears of rent at the time of final conclusion that arrears of rent etc. are payable by the tenant. According to the petitioner, no such opportunity was granted to him and thus, the impugned order is liable to be set aside.
It is his further case that during the pendency of the appeal before the Appellate Authority, the appellant-tenant had paid the entire rent Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh and therefore, taking into consideration the aforesaid fact, the Appellate Authority has erred at law while affirming the findings of the Rent Controller. According to the counsel for the appellant, keeping in view the factum of deposit of the entire rent on behalf of the petitioner during the pendency of appeal before the Appellate Authority, the appellant was entitled to continue in the tenancy. Further argument has been raised before this Court that in the instant case, rent has been claimed for six years which is highly unbelievable. It is the case of the petitioner that the landlord will not remain silent for such a long period of six years without initiating any proceedings to recover the arrears of rent or to evict the tenant. Silence on the part of the landlord for such a long period gives an inference that the landlord was receiving the rent. It is the further case of the petitioner that from the receipts produced on record, it is clearly made out that he was not in arrears of rent and thus, the impugned orders of eviction are liable to be set aside.
I have heard learned counsel for the parties and perused the impugned orders/judgments and the grounds of revision as placed before this Court.
In the present petition, the respondent-landlord has claimed the rate of rent @ Rs.800/-per month. The aforesaid assertion of the respondent-landlord has not been disputed by the petitioner in his written statement. In other words, the petitioner has admitted that rate of rent of the demised premises was Rs.800/- per month.
It may further be noticed that in the written statement, the petitioner has taken a specific defence that he is not in arrears of rent and has paid the rent till date.
It may be apt to notice that the payment of rent is to be Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh proved by the petitioner-tenant. However, in the instant case, the petitioner has misreably failed to prove on record that he has paid the entire rent as claimed. Even if the receipts produced on record by the petitioner are taken into consideration, the same does not help the petitioner in any manner to come to the conclusion that he was not in arrears of rent and thus, there is no escape from the findings that the petitioner was in arrears of rent and his plea that he had paid the entire amount of rent proved to be false.
At this stage, it may be noticed that there was no occasion for the Rent Controller to assess the provisional rent as the petitioner has taken a specific defence that he has paid the entire amount of rent as claimed and in these circumstances, when his plea of payment of entire rent was found to be false, the Rent Controller was not under obligation to grant him an opportunity to make up the deficiency of the arrears of rent. The law laid down in this regard by the Hon'ble Supreme Court in Rakesh Wadhawan v. M/s Jagdamba Industrial Corporation 2002 (1) RCR (Rent) 514, will not be of any help to the petitioner as in Mohd. Giaz v. Mohd. Gulzar and another 2012 (2) HLR 23, it was held that in a case where tenant denies his liability of arrears of rent and fails to support his plea, he cannot be given the benefit of making up of deficiency of the arrears of rent and at the time of passing of the final order, interms of the Rakesh Wadhawan's case (supra) and on the same lines, there is another judgment reported as Ameek Singh v. D.N. Gaur, Chief Engineer, Nuclear Power Corporation of India Limited 2010 (Suppl.) CCC 456. In that case, the plea taken by the tenant that he had already paid the rent was found to be false and the eviction order was passed. The eviction order was challenged on the ground that no opportunity was given Saini Pushpinder 2013.09.24 17:22 I attest to the accuracy and integrity of this document High Court Chandigarh to the tenant, this Court held that such a plea was not tenable. Thus, where the tenant has taken a plea that he has already paid the arrears of rent, then ratio of law decided in Rakesh Wadhawan's case (supra) will not apply in such a case eviction order shall follow.
At this stage, it may further be noticed that deposit of arrears of rent during the pendency of the appeal before the Appellate Authority will not give any benefit to the petitioner as once a default is committed in making the arrears of rent, eviction order has to follow and it cannot be said that the respondent-landlord has waived the default committed by the tenant. Simply because the landlord has not initiated eviction proceedings for a period of six years itself is not sufficient to hold that the petitioner has paid the rent. Payment of rent has to be proved by the tenant and no such presumption can be raised on account of delay in filing the ejectment petition.
Since the petitioner has taken a false plea of payment of arrears of rent consistently, this petition is dismissed with costs which are assessed at Rs.20,000/-.
Let the costs be paid to the Punjab State Legal Services Authority, within one month from today.
September 19, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.09.24 17:22
I attest to the accuracy and
integrity of this document
High Court Chandigarh