CR No.2870 of 2006 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.2870 of 2006 (O&M) Date of Decision: 04.03.2011 Mohd. Fiaz . . .Petitioner Versus Mohd. Gulzar and another . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.S.S. Salar, Advocate, for the petitioner. Mr.Mohd. Yousaf, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. Tenant is in revision against the orders of the Courts below by which he has been ordered to be evicted on the ground of non-payment of rent. The landlord filed eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) in respect of demised premises (shop), which was allegedly rented out in February 1994 at a monthly rent of `500/- with increase of `25/- every year. It was alleged that the tenant has not paid the rent of the demised premises w.e.f. 1.2.1996 though he had paid the rent @ `500/- per month upto 31.1.1996. Thus, it was alleged that the tenant is in arrears of rent w.e.f. 1.2.1996 along with house tax and the landlord is entitled to recover interest and cost of rent due and on this ground alone, eviction of the tenant was sought. In reply, the averments made in para No.3 of the eviction petition was denied and it was alleged that the tenant has paid the rent along with house tax upto June 1999 as per receipts, which were allegedly executed by the landlord. The rent petition was filed on 17.5.1999 and the tenant had alleged that he had paid the rent upto June 1999, meaning thereby he totally denied the arrears of rent, which according to him had already been paid against the receipts issued by the landlord. The landlord filed replication denying the CR No.2870 of 2006 (O&M) - 2 - averments made in the written statement and reiterated the rent petition. On the pleadings of the parties, the Rent Controller framed following issues: “1. Whether the respondent is in arrears of rent w.e.f. 1.2.96? OPP 2. Whether the petition is not maintainable in the present form? OPR 2-A. Whether the receipts as alleged by respondent in Para No.3 of reply are forged and inadmissible in evidence? If so, to what effect? OPP 3. Reply.” Issues No.1 & 2-A were dealt with together as the most material issues in the lis. The learned Rent Controller decided both the issues in favour of the landlord and against the tenant observing that “on the other hand, the evidence of the expert shows that the rent receipts do not bear the thumb impressions of petitioner and it seems that the same have been forged and fabricated by the respondent afterwards. Since the respondent has failed to show that he has paid the rent of the shop in dispute w.e.f. 1.2.1996 he is liable to be ejected from the premises in dispute, on the ground of non-payment of rent”. It is also an admitted fact that the learned Rent Controller had granted opportunity to the tenant on his application to produce expert to prove the rent receipt but despite that he did not examine the expert in support of his case. The Appellate Authority also concurred with the order of the learned Rent Controller. It has also dealt with the argument raised by the tenant that the learned Rent Controller should have granted opportunity to make the payment of rent in terms of the decision of the Supreme Court in the case of “Rakesh Wadhawan and others Vs. M/s Jagdamba Industrial Corporation and others” 2002(2) PLR 370 by observing that it is not a case where the tenants have disputed the rate of rent or the period for which the rent is to be paid rather it is a case where they had disputed the claim of rent on the ground that the same has already been paid against the receipts issued by the landlord. Thus, it was held that the judgment of the Supreme Court in the case of Rakesh Wadhawan and others (Supra) is wholly inapplicable and dismissed the appeal. CR No.2870 of 2006 (O&M) - 3 - Still aggrieved, the present revision petition is filed in which only argument raised by learned counsel for the petitioner is that the judgment in the case of Rakesh Wadhawan and others (Supra) has not been appreciated in its true perspective. On the contrary, learned counsel for the landlord has submitted that a subsequent rent petition No.52 of 18.9.2002, between the same parties, with respect to the demised premises, has been allowed by the Rent Controller, Malerkotla on 6.12.2006. I have heard both the learned counsel for the parties and perused the record. The argument raised by learned counsel for the tenant is that it was incumbent upon the Rent Controller to assess provisional rent and in case of any deficiency, he should have given time at the final hearing but the said procedure was not followed, therefore, the orders passed by the Courts below are patently illegal. Insofar as the judgment of Rakesh Wadhawan and others (Supra) is concerned, in that case eviction petition was filed by the landlord on 17.9.1991 alleging that the tenants have been inducted vide rent note dated 20.9.1982 at the monthly rent of `2000/- excluding water and electricity charges, which was not paid by the tenants from 1.3.1985. The tenants had deposited rent @ `1800/- per month for the period October 1985 to January 1988. In the written statement, the tenants admitted that in the rent note, the rate of rent was `2000/- per month besides water and electricity charges but it was never intended to be acted upon and the real monthly rent of the demised premises was `1800/- per month and in a similar litigation of the landlord in which the tenant was not a party, pursuant to the order of the Civil Court, rent @ `1800/- per month was deposited from October 1985 to January 1988. In this litigation, Rent Controller held that the rate of rent was `2000/- including water and electricity charges and since tender was short having been made on 14.11.1991, the eviction order was passed. In appeal, the Appellate Authority found that the rent was `1800/-, which was duly cleared and as such the tenants were not liable to be evicted. The High Court dismissed the civil revision agreeing with the order of the Appellate Authority. In the SLP, the Supreme Court first examined the rate of rent, which was ultimately found to be `2000/- per month instead of `1800/- per month. Then the question arose whether in case of short tender due to dispute of rate of rent, the eviction order should follow or the Rent Controller was obliged to first assess the provisional CR No.2870 of 2006 (O&M) - 4 - rent in terms of Section 13(2)(i) of the Act. In this background, it was concluded that the Rent Controller shall assess arrears of rent, interest on such arrears and the cost of the application and by way of an interim order shall quantify them, which the tenants must pay on the first date of hearing otherwise he would make himself liable for eviction. To my mind, the facts of this case are altogether different from the facts of the case of Rakesh Wadhawan and others (Supra) because in the present case, the tenant had contested the eviction petition throughout on the ground that he had already made the entire payment of rent till the finality of the eviction petition against the receipts issued by the landlord, meaning thereby, there was no occasion for the Rent Controller to fix provisional rent as the tenant was totally denying his liability to pay the rent. Thus, there was neither a dispute with regard to period of rent nor rate of rent, which could have been provisionally decided by the Rent Controller so as to enable the tenant to save his tenancy in terms of the decision of the Supreme Court in the case of Rakesh Wadhawan and others (Supra). In view of the above discussion, it is held that in a case where the tenant denies his liability of arrears of rent on the ground of documentary evidence (receipts) and claims a trial on the issue of his liability and if it is ultimately found that the documentary evidence does not support the tenant, he cannot take support of the decision of the Supreme Court in the case of Rakesh Wadhawan and others (Supra). Moreover, the tenant has already been evicted in a subsequent Eviction Petition No.52 of 18.9.2002. In view of the aforesaid, the present revision petition is found to be without any merit and as such the same is hereby dismissed. No costs. (RAKESH KUMAR JAIN) MARCH 04, 2011 JUDGE Vivek