RSA No.3467 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3467 of 2010 (O & M) Date of Decision: 20.05.2011 Sethi Gill ……Appellant Versus Gulzar Singh …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Deepak Arora, Advocate for the appellant. Ms. Sushma Chopra, Advocate for the respondent. L.N. MITTAL, J (ORAL) Sethi Gill-defendant has filed the instant second appeal, having remained unsuccessful in both the Courts below. Respondent-plaintiff-Gulzar Singh filed suit against the defendant-appellant seeking twin reliefs i.e. possession of the suit shop by ejectment of the defendant therefrom and recovery of Rs.39600/- as arrears of rent for three years preceding the filing of the suit at the rate of Rs.1100/- per month. The defendant, however, alleged the rate of rent to be Rs.175/- per month only. Learned Additional Civil Judge (Senior Division), Nakodar vide judgment and decree dated 03.09.2008 decreed the plaintiff’s RSA No.3467 of 2010 (O & M) - 2 - suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 13.01.2010. Feeling aggrieved, defendant has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, it may be noticed that notice of motion in this appeal has been issued limited to the amount of arrears of rent only and not regarding relief of possession of the suit shop by ejectment of defendant therefrom. Learned counsel for the appellant vehemently contended that both the Courts below have gravely erred in placing the onus of proving rate of rent on the defendant, although the onus was on the plaintiff to prove the rate of rent pleaded by him which he failed to prove. On the other hand, learned counsel for the plaintiff- respondent contended that the defendant failed to prove the rate of rent pleaded by him whereas plaintiff’s case has been supported by his witness Harbans Lal PW-2. I have carefully considered the rival contentions. The onus was on the plaintiff to prove that rate of rent was Rs.1100/- per RSA No.3467 of 2010 (O & M) - 3 - month as pleaded by him. Both the Courts below adopted perverse and illegal approach in placing the onus on the defendant to prove that rate of rent was Rs.175/- per month as pleaded by the defendant. Consequently, finding of the Courts below that rate of rent was Rs.1100/- per month is perverse and illegal and is based on misreading and misappreciation of evidence and law, giving rise to substantial question of law for determination in this second appeal. Plaintiff’s oral evidence in the form of statements of plaintiff himself as PW-1 and Harbans Lal as PW-2 stands rebutted by the oral evidence of the defendant in the form of statements of defendant himself as DW-1 and Gurdev Singh as DW-2. Neither party has cited any instance of rate of rent of comparable premises. In these circumstances, to determine the rate of rent, thumb rule has to be applied to some extent. It appears that plaintiff made exaggerated claim of rate of rent and the defendant understated the rate of rent. Keeping in view the pleadings and evidence of both the parties, in my considered opinion, it would be just and appropriate to determine the rate of rent at Rs.500/- per month. Accordingly, the plaintiff is entitled to Rs.18000/- as arrears of rent for three years preceding the filing of the suit along with interest at the rate of 6% per annum from the date of filing of suit till recovery as granted by the Courts below. However, out of this amount, amount paid or deposited by the defendant-appellant in the trial Court shall be RSA No.3467 of 2010 (O & M) - 4 - deducted/adjusted. Finding of the Courts below stands modified to the aforesaid extent. The appeal is, therefore, allowed partly. Judgments and decrees of the Courts below are modified to the extent indicated hereinbefore. (L. N. MITTAL) JUDGE 20.05.2011. A.kaundal