1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2213 of 2011 (O&M) Date of Decision : 12.08.2011 Ramesh Kumar ....Petitioner Versus Abhey Kumar Jain ....Respondent CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR GARG 1. Whether reporters of local news papers may be allowed to see judgment ? 2. To be referred to reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** Present: Mr. Malkeet Singh, Advocate for the petitioner. Mr. R.P.S.Ahluwalia, Advocate for the respondent. * * * RAKESH KUMAR GARG, J (ORAL) This is tenant's revision petition challenging the impugned order dated 25.2.2011 of the Appellate Authority, Ambala, whereby, while accepting the appeal of respondent-landlord against the dismissal of eviction application by the Rent Controller vide order dated 3.12.2010, the eviction of the petitioner was ordered on the ground of non-payment of arrears. Shorn of unnecessary details, it is suffice to say that respondent-landlord filed the instant eviction petition against the petitioner claiming that initially the petitioner was inducted as tenant @ Rs.1170/- per month and thereafter the said rent was increased w.e.f. 11.06.2004 2 Civil Revision No.2213 of 2011 (O&M) @ Rs.1400/- p.m and further that the petitioner has failed to make the payment of rent @ Rs.1400/-p.m w.e.f. 11.6.2004 to 29.9.2007 and thus was liable to be ejected. Upon notice, the petitioner contested the aforesaid eviction petition filed written statement admitting the relationship of landlord and tenant between the parties and further stated that rate of rent was Rs.1170/- p.m. and not Rs.1400/- p.m. It was further stated by the petitioner that the rent upto date has been paid to the respondent-landlord and nothing remains to be paid. After hearing learned counsel for the parties, the Rent Controller vide order dated 3.12.2010 dismissed the ejectment petition. However, on an appeal filed by the respondent-landlord, the Appellate Authority set aside the impugned order of the Rent Controller and ordered the eviction of the petitioner observing as under:- “Respondent has admitted that earlier appellant used to issue the receipts to him but later on appellant had refused to issue the receipts. It is not understandable as to why the respondent did not insist for the receipt in respect of the payments made by him. Respondent could very well refuse to make the payment in case the appellant had refused to issue him the receipt, without incurring the risk of ejectment. I have perused the receipts produced by the appellant. A look at these receipts would also show that respondent has not been making the payment of the rent regularly and he has been making the payment of rent after the interval of seven months and one year. In these circumstances, there was nothing un-usual for the respondent not to have paid the rent earlier. Except the held statement of the respondent there is no evidence on the record that he had paid the rent. 3 Civil Revision No.2213 of 2011 (O&M) Even if it is assumed for the sake of arguments that appellant had not issued the receipts in respect of the payment of the rent. Respondent would very well lead other evidence to establish the payment. Under the Haryana Rent Act, a landlord can claim the rent for three years and it cannot be said to be un-usual for a tenant not to have paid the rent for this period. I am of the considered view that respondent has failed to establish of the record that he had paid the rent. I am of the considered view also that appellant has failed to establish of the record that he had paid the rent. I am of the considered view also that appellant has failed to establish that the rent was increased from Rs.1170/- to Rs.1400/-per month. Admittedly, the receipt on the basis of which appellant states that the rent was enhanced to Rs.1400/- per month is not signed by the respondent. Appellant claims that the receipt was initiated by the respondent. However, it is not possible to return the finding that the receipt bears the initials of the respondent. Accordingly, I am of the considered view that the rent of the demised premises was Rs.1170/- per month and respondent had not paid the same from 1.9.2004 as claimed by the appellant. Respondent had made a statement before the Rent Controller on 11.2.2008 that he had already paid the rent claimed by the appellant. However, he has failed to establish his case. Hon'ble Punjab and Haryana High Court in Amreek Singh v/s D.N.Gaur, Chief Engineer, Nuclear Power Corporation of India Limited 2010 RCR page 22 has laid down that where the plea of the tenant that he had already paid the arrears of rent was found to be false, he was liable to ejectment and that he was not entitled to an opportunity to pay the rent claimed by the landlord. Thus held Hon'ble Punjab & Haryana High Court in Amreek Singh's case (Supra) at page 25 of the judgment. “The reference to the applicability of the 4 Civil Revision No.2213 of 2011 (O&M) Hon'ble Supreme Court in Rakesh Wadhawan's case itself is wholly misplaced. If the dispute was only with reference to the quantum of rent and the court had made provisional assessment of the rent during the pendency of proceedings and in the ultimate final adjudication the Court found that larger sum was due, the Rent Controller could not have directed eviction without affording an opportunity to make the payment. To apply the said decision to this case, if the contention of the landlord had been that the rent was Rs.4000/-and the tenant was contending that it was in only Rs.3000/- and he had also paid at that rate, it would be open to the Rent Controller to make a provisional assessment as either Rs.3000/- or Rs.4000/- and also make on interim direction for making a payment on the amount which he determined as payable in the final adjudication. At such final adjudication if the rent were to be assessed at Rs.4000/- and the Court had also found that the tenant had paid till the conclusion of the proceedings amounts @ Rs.3000/-, the Rent Controller was bound to give an opportunity to the tenant to make good the share fall. Such a facility will not obtain to a tenant, who had been making a false contention that he had made all the payments and paid. The question of grant of opportunity did not arise in a case where the tenant pleaded a case of full discharge of liability by alleged prompt payments. There arose no occasion for determination of any provisional rent and a final adjudication in variance to the former interim order. On the other hand, when the rent controller was completely rejecting the contention of the tenant, there ought to be no occasion for grant of any further time.” In view of above discussion, I am of the considered view that the impugned order is not sustainable in law and the same is set aside. The present appeal is allowed and an order of ejectment is passed against the respondent. 5 Civil Revision No.2213 of 2011 (O&M) Respondent is granted two months time to vacate the demised premises subject to his paying the whole due rent within one month from today. Memo of costs be prepared. The lower court file be sent back with a copy of this order. Appeal file be consigned to the record room.” Aggrieved from the aforesaid judgment, petitioner has approached this Court against the aforesaid order by way of instant revision petition. Notice of motion was issued to the respondent-landlord vide order dated 4.4.2011. Service was complete on 20.4.2011 and thereafter the case was adjourned to 8.7.2011 vide order dated 20.4.2011. However, on 31.5.2011, the petitioner moved civil miscellaneous application No.13921-CI of 2011 stating that warrant of possession was issued on 23.4.2011 and therefore the dispossession of the petitioner be stayed from the demised premises till then. \ On the basis of the aforesaid averments, this Court vide order dated 31.05.2011, passed the following order:- “Learned counsel for the applicant-petitioner has submitted that on 20.4.2011 case was adjourned to 08.07.2011 after completion of service but on 23.4.2011 warrant of possession has been issued, therefore, the present application has been filed for preponement of hearing. Notice in the application to the respondent for 3.6.2011. Till then, dispossession is stayed from the demised premises.” On 03.06.2011, learned counsel for the respondent-landlord had brought to the notice of this Court that the petitioner-tenant was in arrears of rent. 6 Civil Revision No.2213 of 2011 (O&M) On the basis of aforesaid submission, on 03.06.2011, this Court has passed the following order:- “Service is complete. Learned counsel for the respondent states that tenant is in arrears of rent. Adjourned to 28.7.2011. Interim order to continue subject to payment of arrears of \ rent.” At the time of hearing, learned counsel for the respondent- landlord has submitted before this Court that the petitioner has not paid arrears of rent and therefore he has no right to press for this petition. Be that as it may, the petition is being disposed of on merits of this case. The relationship of landlord and tenant between the parties is not in dispute. Even the factum of rate of rent @ Rs.1170/- per month is also not in dispute. The case of respondent before the Rent Controller was that the rate of rent was increased to Rs.1400/- p.m. w.e.f.11.6.2004 and the petitioner was in arrears of rent upto 29.9.2007 and thus he was liable to be evicted for non-payment of arrears of rent. However, the stand of the petitioner taken before the Rent Controller was that the rate of rent @ Rs.1170/- p.m and he has also made uptodate payment. Both the Courts below on appreciation of evidence found that the respondent-landlord has failed to establish that the rent was increased from Rs.1170/- to Rs.1400/-p.m. w.e.f.11.6.2004. Thus, it was held that rate of rent was Rs.1170/- p.m. However, the Lower Court found that the petitioner has failed to prove the factum of payment of the arrears of rent for the period from 11.6.2004 to 29.9.2007 at the rate of Rs.1170/- p.m. It is well settled that it is for the tenant to prove 7 Civil Revision No.2213 of 2011 (O&M) the payment of rent. In the instant case even before this Court no evidence has been pointed out to establish the payment of rent even @ Rs.1170/-p.m for the disputed period. In this view of the matter, no fault can be found with the findings recorded by the Appellate Authority. However, learned counsel for the petitioner has vehemently contended that once the plea of the respondent-landlord regarding the rate of rent was not accepted. The eviction of the petitioner could not have been ordered as respondent had not come to the Court clean hands. The argument raised by the learned counsel is misconceived. A perusal of the finding of the court below would show that at no stage, the authorities below have recorded a finding that respondent-landlord has taken false plea or that he has concealed any fact. In fact, the plea taken by the respondent-landlord was that the initially rate of rent was @ Rs.1170/- p.m and the same rent was increased to Rs.1400/- p.m. w.e.f. 11.6.2004 and this plea was not accepted. In this view of the matter, I find no merit in this petition. Dismissed. The plea of recovery of arrears of rent is kept open and the respondent-landlord is at liberty to recover the same in execution of the impugned order. 12.08.2011 (Rakesh Kumar Garg) savita Judge 8