IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.1479 of 2009 (O&M) Date of Decision : 20.07.2009 Sukhdev Singh .....Petitioner versus Budha Singh .....Respondent CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.R.K.Arya, Advocate, for the petitioner. -.- 1. Whether Reporters of 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? --- ORDER Surya Kant, J. This revision petition is directed by the tenant against whom the Rent Controller, Batala, has passed an eviction order dated 21.8.2006 and whose appeal against the said order has also been dismissed by the Appellate Authority, Gurdaspur, vide its impugned judgment dated 8.1.2009, of shop situated at Kahnuwan Road, Batala. The facts may be noticed briefly. The respondent-landlord filed the eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act'), inter-alia, alleging that (i) the petitioner-tenant is in arrears of rent since January, 1992 @ Rs.600/- per month; (ii) the tenant has not paid the house tax also @ 15% per annum since January, 1992; (iii) the tenant has changed the user of the shop. While the shop was taken for selling and C.R. No.1479 of 2009 (O&M) 2 retaining the agricultural instruments, the petitioner had installed the fodder cutter which has diminished the value and utility of the shop, and (iv) the petitioner-tenant has installed a diesel engine to run the fodder cutter, due to which it has become source of nuisance for the inhabitants of the locality/neighbourhood which spread wasting oil and smoke of diesel engine. The waste oil and smoke of the diesel engine has blackened the shop due to which also it value and utility has been diminished. The petitioner-tenant contested the eviction petition and disputed the rate of rent also. According to the petitioner, the shop was taken on a rent of Rs.375/- per month and not Rs.600/- per month. He also took a plea that he had already paid the rent at the aforesaid rate upto March, 1999, besides Rs.3600/- paid in advance which the landlord allegedly agreed to adjust against the future rent. The petitioner also denied his liability to pay any house tax. Similarly, the allegation of change of user was denied and it was averred that the fodder cutter alongwith diesel engine have been installed from the very inception of the tenancy. The allegation regarding diminishing the value or utility of the shop were also controverted. The parties went on trial on the following issues: “1. Whether no legal and valid tender of rent has been made? OPA. 2. Whether the applicant is entitled to recover the house-tax alongwith rent? OPA. 3. Whether the respondent has changed the user of the shop? OPA. C.R. No.1479 of 2009 (O&M) 3 4. Whether the respondent is guilty of creating nuisance to inhabitants of the locality by installing diesel engine? OPA. 5. Whether the rate of rent is Rs.375/- P.M. OPR. 6. Whether the advance rent is of Rs.3600/- had been paid, if so, its effect? OPR. 7. Relief.” Both the parties led documentary as well as oral evidence in support of their respective cases. As regards the rate of rent, the Rent Controller held that the shop was initially let out on rent @ Rs.375/- per month and in the absence of any documentary evidence in support of the landlord's claim that the rate of rent was enhanced to Rs.600/- per month, his plea cannot be accepted. Contrary to it, the receipts Ex.R-1, R-3 and R-5 produced by the tenant on record did suggest that the rate of rent of the premises continued to be Rs.375/- per month only. Similarly, the Rent Controller held that the petitioner was not liable to pay any house tax to the landlord. As against Issue No.3, the Rent Controller held that the demised premises was given to the petitioner-tenant for selling the agricultural instruments and the fodder cutter with the diesel engine has been installed by the tenant later on without the consent of the landlord. The Rent Controller found that since the diesel engine is being used continuously in the absence of electric power, the resultant waste oil and its smoke has blackened the entire shop which in turn has diminished its value and utility. Similarly, while deciding Issue No.4, the Rent Controller has held that the diesel engine was a constant source of nuisance due to its loud noise, emission of smoke and wasting oil, to the inhabitants of the C.R. No.1479 of 2009 (O&M) 4 locality. Likewise, while deciding Issue No.6, the Rent Controller held that the rate of rent of the premises was Rs.375/- per month. However, the petitioner-tenant has failed to prove the payment of rent since January, 1992, except for the months of January, February and March, 1999 and did not tender the arrears of rent. The Rent Controller accordingly passed an order of eviction on the ground that the petitioner-tenant has failed to pay the arrears of rent and has also diminished the value and utility of the rented premises. The petitioner went in appeal and the Appellate Authority has also affirmed the findings recorded by the Rent Controller against Issue Nos.4 & 5 and accordingly dismissed the appeal. Aggrieved, the petitioner-tenant has approached this Court. I have heard the learned counsel for the petitioner and perused the impugned orders. During the course of hearing, it could not be disputed that the petitioner-tenant has not tendered the arrears of rent even @ Rs.375/- per month from January, 1992. Petitioner-tenant though took a plea that he had already paid the rent upto March, 1999, but could not produce the receipts except receipt Ex.R-1 which shows the payment of rent for the months of January, February and March, 1999 only. The petitioner's contention that since the landlord has been disbelieved on the rate of rent, his entire statement ought to have been discarded, cannot be accepted especially for the reason that if the landlord had issued the receipt for the rent paid for the months of January, February and March, 1999, there is no reason C.R. No.1479 of 2009 (O&M) 5 whatsoever, that he would not have issued receipts for the period prior thereof. Learned counsel for the petitioner could not dispute the fact that the petitioner has installed a fodder cutter (tokka) machine alongwith a diesel engine to run the same. It is obvious that if the petitioner is running a fodder cutter with the aid of the diesel engine, it is bound to cause nuisance due to the noise as well as emission of smoke besides diminishing the value and utility of the demised premises due to blackening and spread over of the waste oil. Faced with this situation, learned counsel for the petitioner pleaded to grant some reasonable period to the petitioner-tenant to vacate the demised premises. Though in the light of the concurrent finding of fact returned by the Courts below which amply proves that not only the petitioner has failed to pay the rent on time but has also become constant cause of nuisance, yet keeping in view the fact that the business activity being run by the petitioner is his source of livelihood and while dismissing this revision petition, I deem it appropriate to direct that the petitioner shall be entitled to retain the demised premises till 30.11.2009 subject to, however, deposit of the entire arrears of rent before 30.9.2009 and payment of future rent by 10th of every calendar month. Ordered accordingly. 20-07-2009 (SURYA KANT) Mohinder JUDGE