C.R.No.7496 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.7496 of 2011 Date of decision:6.12.2011 Swinder Singh ...Petitioner vs Amrik Singh and another ....Respondents CORAM: HOB'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Gurdeep Singh Sirphiki, Advocate, for the petitioner. -- Rakesh Kumar Garg,J. This is tenant's revision petition challenging the order dated 23.2.2006 of the Rent Controller whereby his eviction was ordered from the demised premises and the judgment dated 6.9.2011 of the Appellate Authority dismissing his appeal against the aforesaid order of eviction. The landlord-respondents filed an ejectment application for eviction of the petitioner from the demised premises stating therein that the shop in dispute originally belong to Shri Dalip Singh son of Gurdit Singh. Vide rent agreement dated 25.4.1989, the petitioner took on rent the shop in dispute from the said Dalip Singh on a monthly rent of Rs.500/-.Vide sale deed dated 9.8.1991, the said Dalip Singh sold the shop in dispute along with his other shops to the petitioner. Thus, they became the landlord of the shop and respondent as their tenants, in respect of the shop in dispute. It was further averred that the petitioner has neither paid nor tendered the rent of the shop in dispute to the respondents in spite of repeated requests. The rent was due from 9.6.1992 onwards. It was further mentioned that in the previous ejectment petition which was still pending they have claimed rent C.R.No.7496 of 2011 2 for the period with effect from 9.8.1991 to 9.6.1992 amounting to Rs.5000/- but the petitioner tendered the rent at the rate of Rs.100/- per month upto 9.8.1992. Hence the instant ejectment petition was filed without prejudice to the previous application pending in the Court of Rent Controller, Batala. It was further averred that petitioner ceased to occupy the shop in dispute for the last one year and the same was lying locked. Thus, it was prayed that order of ejectment be passed in favour of the respondents and against the petitioner. Upon notice, petitioner appeared and tendered arrears of rent for the period with effect from September 1992 to April 1994 i.e. for 20 months at the rate of Rs.100/- per month with interest and costs. Petitioner filed reply controverting the averments of the respondents. It was denied that rate of rent was Rs.500/- per month on the basis of alleged agreement dated 25.4.1989. The existence, legality, validity and genuineness of the said agreement was denied. It was further stated that petitioner was in possession of the shop in dispute on the basis of oral tenancy at a monthly rent of Rs.100/- under Dalip Singh and shall making the payment of rent to him on the basis of receipt duly executed by Dalip Singh in favour of the petitioner. Thus, the ground of non payment of rent was not available to the respondents. It was further denied that the petitioner has ceased to occupy the shop in dispute. Lastly, dismissal of the ejectment application was prayed. Respondents-landlords filed replication re-asserting the averments of the ejectment petition and denying the version of the petitioners. On the pleadings of the parties, the following issues were framed:- C.R.No.7496 of 2011 3 1. Whether the respondent is a tenant under the applicant at a monthly rent of Rs.500/- as alleged ?OPA 2. Whether the respondent is liable for ejectment for non payment of rent ?OPA 3. Whether the respondent has ceased to occupy the shop in dispute for a continuous period of more than four months as alleged ?OPA 3-A. Whether agreement dated 25.04.1989 is a forged and fabricated document ?OPR 4. Relief. After hearing learned counsel for the parties and perusing the record Rent Controller,Batala allowed the ejectment petition and a period of one month was granted to the petitioner to make the payment of arrears of rent failing which the respondents were at liberty to get the possession from the petitioner in due course of law. While allowing the petition, the Rent Controller held that the petitioner was a tenant in the demised premises at the rate of Rs.500/- per month whereas the petitioner had tendered rent at the rate of Rs.100/- per month and therefore was in arrears and was liable to be ejected for non payment of rent. Under issue no.3-A it was held that the petitioner has failed to prove that the rent agreement dated 25.4.1989 was a forged and fabricated document. However, issue no.3 was found against the respondent landlord. Aggrieved from the aforesaid order of the Rent Controller petitioner filed an appeal before the Appellate Authority which was also dismissed. While dismissing the appeal of the petitioner the Appellate Authority observed as under:- “ In order to prove that appellant is tenant at the rate of C.R.No.7496 of 2011 4 Rs.500/- per month and the appellant has taken the shop in dispute at the monthly rent rent of Rs.500/- per month vide agreement dated 25.04.1989 executed in favour of Dalip Singh the previous landlord, the respondent has examined the petition-writer who has proved entry of Register regarding agreement dated 25/04/1989. Perusal of this entry shows that the appellant took the shop from Dalip Singh on rent at the rate of Rs.500/- per month. The sale deed has also proved by respondent to show that he has purchased the shop from Dalip Singh. The shop in dispute was purchased by the respondent in the year 1991 whereas the agreement regarding the rate of rent was executed in the year 1989. In such circumstances, the possibility of connivance of Dalip Singh with present respondent cannot be possible. No enmity is there between Dalip Singh and the present appellant or the present appellant and the respondent to make a fake entry in the register of the deed writer. Learned Rent Controller has rightly observed that the evidence of the petition writer cannot be ignored on the ground that he connived with the respondent to make a false entry. Learned Rent Controller has rightly observed that Swaran Singh is the real maternal uncle of the appellant. Had the entry in the Register of deed writer be fake and forged, then the appellant would have examined Swaran Singh his real maternal uncle to prove that signature of his maternal uncle are also forged one and he never stood a witness of the rent agreement Ex.A3. There is no dispute that the plaintiff is to stand on his own legs in order to prove his case, but in the present case once the execution of rent note was proved then onus shifted on the appellant/respondent to prove that no such agreement was ever executed. Learned Rent Controller has rightly observed that non-examination of Dalip Singh, the previous landlord is not fatal to the case of the respondent as the appellant has himself proved the previous litigation of Dalip Singh and the present appellant Ex.R8 to Ex.P11. These C.R.No.7496 of 2011 5 documents clearly show that Dalip Singh even had demanded the arrears of rent in this suit for recovery at the rate of Rs.500/- per month. Thus, it has been proved that the rate of rent was Rs.500/- per month. The rent receipts proved by the appellant show that these were issued by Dalip Singh. The attesting witnesses in these receipts Ex.R1 to Ex.R4 are Gurnam Singh and Lakha Singh. Lakha Singh has been examined by the appellant as RW1. In his cross-examination he has stated that at the time of taking the shop in dispute, the amount of Rs.100/- as rent was given but no receipt was ever executed. In his cross-examination he has also admitted that at the time of giving the shop on rent to the appellant, no other shop in that locality was let out to anybody at therate of Rs.100/- per month as rent. In his cross-examination he has further admitted that in his presence no receipt was ever executed. The evidence of RW1 itself proves that no receipts were ever executed in his presence meaning thereby that he never signed on the receipts Ex.R1 to Ex.R4.Gurnam Singh RW-2, the other witness has stated in his examination-in-chief that on Ex.R1 to Ex.R5 he and Lakha Singh put his witnesses but Lakha Singh has denied its execution in his presence. As per his statement the receipts were scribed by Lakhwinder Singh, brother of appellant but he has not examined Lakhwinder Singh to prove the execution of the receipts. Learned Rent Controller has rightly observed that if rent was Rs.100/- per month then the landlord should not have refused the money order. Learned Rent Controller has fully appreciated the oral as well as documentary evidence led by the parties and has rightly come to the conclusion that the appellant is a tenant under the respondent at the rate of Rs.500/- per month. Still not satisfied the petitioner has filed the instant revision petition challenging the aforesaid orders of the authorities below. C.R.No.7496 of 2011 6 Learned counsel for the petitioner has vehemently argued before this Court that along with the appeal filed before the Appellate Authority petitioner had also moved an application for leading additional evidence to the effect that he be allowed to examine Swaran Singh son of Tara Singh by way of additional evidence. However, the Appellate Authority had dismissed the appeal filed by the petitioner-tenant without deciding the said application which was pressed and, therefore, the judgment of the Appellate Authority deserves invalidation on account of the fact that the application filed by the petitioner under Order 41 rule 27 read with section 151 of the Code of Civil Procedure , remained undisposed of. To substantiate his case to the effect that petitioners had sought leading of additional evidence, learned counsel for the petitioner referred to the grounds of appeal filed before the Appellate Authority showing pleadings in this regard. Learned counsel appearing on behalf of the petitioner has further relied upon a judgment of the Hon'ble Supreme Court in the case of Jatinder Singh and another Vs. Mehar Singh and others 2009 (1) Civil Court Cases 211, and judgment dated 21.1.2010 passed in Civil Revision No.191 of 2010 (Sham Lal & sons etc vs. Rajiv Kumar) to contend that when an application for leading additional evidence is filed it is the duty of the Court to deal with the same on merits and having failed in that the impugned order has to be set aside and matter be remanded for fresh decision. The argument raised by the learned counsel for the petitioner is misconceived. In the instant case, admittedly the argument regarding leading of additional evidence does not find mention in the order of the C.R.No.7496 of 2011 7 Appellate Authority. Learned counsel for the petitioner was unable to answer as to whether any argument was raised in this regard by the learned counsel appearing on behalf of the petitioner. In fact, there is no such material on record to prove the said fact. No affidavit of the lawyer who represented the petitioner before the Appellate Authority has been placed on record in support of the said averment made before this Court. Not only this, petitioner has failed to make any application for recalling/reviewing of the order of the Appellate Authority on this ground. Not only this, before this Court also counsel for the petitioner was at a loss to make out a case for allowing him to lead additional evidence of the fact that the agreement dated 25.4.1989 was a forged and fabricated document by examining Swaran Singh son of Tara Singh by way of additional evidence, as from the very beginning petitioner knew about the case set up by the landlord- respondents and the said witness i.e. Swaran Singh son of Tara Singh is none else but his own maternal uncle. Simply because the petitioner has filed an application under order 41 rule 27 CPC for leading additional evidence along with the appeal will not entitle him to get the impugned order set aside unless it can be shown that such a ground for leading additional evidence was raised before the Appellate Authority. Faced with this situation, learned counsel for the petitioner has further argued that it has come on record that for the earlier period a petition was filed claiming arrears of rent at the rate of Rs.500/- per month wherein the petitioner had tendered rent at the rate of Rs.100/- per month and the respondents had withdrawn the said petition meaning thereby accepting the rate of rent at Rs.100/- per month and now the respondents are estopped from raising the same issue with regard to rate of rent by way C.R.No.7496 of 2011 8 of the instant revision petition. Again the argument raised is without any merit. Admittedly the rent petition filed against the petitioner for the earlier period was dismissed by the Rent Controller after filing of the instant petition. Moreover, the said decision of the rent Controller on the previous litigation was not decided on merits and no finding was recorded with regard to the rate of rent. A perusal of section 14 of the Punjab Urban Rent Restriction Act, 1949, would show that only those matters which have been decided finally will debar the landlord to ask for eviction on the subsequent petition on similar grounds. Thus, it cannot be said that the respondents are estopped from raising such a plea in the instant petition. No other argument was raised For the reasons recorded above, I find no merit in this petition and the same is dismissed. (Rakesh Kumar Garg) Judge December 6, 2011 rk