IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5934 of 2007 Date of decision : 02-03-2009 Muni Lal .....Petitioner Udai Chand .....Respondent CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR Present : Mr. L.N. Verma, Advocate for the petitioner Mr. H.R. Nohria, Advocate for the respondent. ***** NIRMALJIT KAUR, J. The petitioner-landlord filed petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for ejectment of the respondent from the shop, in dispute, on account of non-payment of rent. The case put up by the petitioner in the suit is that he had rented out the shop, in dispute, to Uday Chand-respondent in the year 1989 @ Rs.1,000/- per month. The respondent paid advance rent of one year @ Rs.1,000/- per month and executed the Rent Note dated 17-07-1989 which was Exhibit A-1. The said Rent Note was signed in the presence of witnesses Subhash Kumar and Chaman Lal. He continued to pay the rent at the rate of Rs.1,000/- per month till 31-10-1990 but from 01-04-1999 onwards, the C.R. No. 5934 of 2007 -2- respondent did not pay the rent to the petitioner. The rent of three years had become due. Accordingly, the rent petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 was filed before the Rent Controller. The Rent Controller allowed the Eviction Petition vide order dated 15-09-2006 and passed a conditional eviction order against the respondent allowing him one month's time to deposit the arrears of rent failing which he was ordered to be ejected from the shop, in dispute. The respondent challenged the ejectment order before the Appellate Authority, Barnala. The Appellate Court allowed the appeal and set aside the order vide judgment dated 03-09-2007, holding that the execution of the Rent Note and landlord tenant relationship was doubtful. The case put up by the respondent and pleaded was that :- (a) There exist no landlord tenant relationship between the parties. (b) He had taken the shop, in dispute, on rent from one Kewal Krishan son of Chamba Ram, at a monthly rent of Rs.200/- and he had tendered the rent of the shop, in dispute, @ Rs.200/- p.m. w.e.f. 31-10-1999. Mr. L.N. Verma, learned counsel for the petitioner opened the arguments by submitting that the Appellate Authority should not have relied upon the testimony of expert witness-Sumir Kumar Arora (RW3) as he had specifically admitted that he compared the disputed signatures of the respondent with the signatures, as pointed out by the counsel for the respondent which had been obtained out of the Court. The expert was supposed to compare the disputed signatures with the admitted signatures C.R. No. 5934 of 2007 -3- of the respondent, taken in the Court itself. Hence, the ocular evidence adduced by the petitioner in order to prove the execution of the Rent Note (Ex.A-1) ought to have been preferred by the Expert opinion. Secondly, the Appellate Authority had failed to consider the stand of the respondent that he had taken the shop in dispute from Kewal Krishan on monthly rent of Rs.200/-. It was incumbent upon him to examine Kewal Krishan who stated that he was the owner of the shop, in dispute. His failure to have examined Kewal Krishan invites adverse inference against him for with-holding the material witness. The third argument raised by learned counsel is that Rent Note (Ex.A-1) bears stamp of Surinder Kumar Singla, Deed Writer and his son Vinod Kumar RW-2 had categorically admitted that the Seal on the Rent Note was of his father-Surinder Kumar Singla. Fourthly, the respondent had tendered the rent of the shop, in dispute, with interest and cost as determined by the Rent Controller for the period from 01-11-1999 to 31-03-2003 without any objection and without any condition vide his statement dated 20-02-2003. Thus, the only inference on the statement of the respondent that can be drawn is that the respondent disputed only the rate of the rent and has thus accepted the ownership of the petitioner and the fact that he was a landlord and not Kewal Krishan. Lastly, it was submitted by the counsel that since the respondent did not have any receipts in his possession as Muni Lal- petitioner had not issued receipts to him, amounts to categorically admission of the respondent that he had been paying rent of the shop, in dispute to the petitioner and not to Kewal Krishan. C.R. No. 5934 of 2007 -4- Learned counsel for the respondent, in response, denied that the shop, in dispute was on rent @ Rs.1,000/-. It was stated that the shop, in dispute, was taken on rent by the respondent from Kewal Krishan son of Chamba Ram, who was the brother of the petitioner, at the monthly rent of Rs.200/- in the presence of Banke Bihari son of Budh Ram and Om Parkash son of Ajmer Dass. He is paying the rent to Kewal Krishan son of Chamba Ram regularly who has never issued him any receipt. It was further argued that another shop adjoining to the shop, in dispute, had been rented out to one Gurcharan Dass son of Lal Chand Khatri on rent at the rate of Rs.1,200/- per annum and the shop was also of the same size as the shop in dispute. It was further argued that the respondent had taken the shop @ Rs.2,400/- per annum and entry to this effect had already been made in the assessment register of the Nagar Council, Bahadur. Further, he had tendered the rent from 01-11-1999 till the date of his appearance at the rate of Rs.200/- per month and the same should not be taken as an admission of the existence of landlord and tenant relationship between the petitioner and the respondent. I have heard learned counsel for the parties and have gone through the oral as well as documentary evidence on the file. The following relevant issue was framed as Issue No.4-A :- “ 4-A The onus to prove this issue is upon the petitioner. In order to prove that the respondent is tenant of petitioner, the petitioner has examined AW1 Subhash Kumar who was present at the time of renting out of the shop in dispute, and he has categorically stated that the shop in dispute was taken on rent by the respondent from the petitioner at the monthly rent of Rs.1,000/- per C.R. No. 5934 of 2007 -5- month and rent note Ex.A1 was executed in this regard which bears his signature. Petitioner Muni Lal himself came into the witness box as AW2 and he has stated that he is landlord of the shop which is under the tenancy of respondent and rent note in this regard was executed by the respondent in his favour, which is Ex.A1.” I find that the Rent Controller, Barnala had wrongly decided issue No.4-A and the Appellate Authority, Barnala has rightly reversed the finding on Issue No.4-A and decided the same in favour of the respondent. There is no evidence in support of Issue No.4-A. RW Darshan Singh son of Shamsher Singh had appeared and categorically stated that the stamp paper on which the rent note in question has been forged was sold by him to one Ganpat Rai son of Ramsaroop of Bahadur and was never sold to Udai Chand son of Babu Ram, the tenant. It was further stated by RW Darshan Singh that the stamp paper which was sold by him was consisting of three leaves. The first leave has not been produced and the endorsement on the remaining leaves carrying the name of Udai Chand son of Surinder Kumar Singla was never written by him and had ever signed upon it. Although, Surinder Kumar Singla, Deed Writer had died and could not be produced as witness, Vinod Kumar son of Surinder Kumar Singla (RW) produced as witness who brought the register of his father which was being maintained by him as Deed Writer and he categorically stated that there was no entry of any Rent Note, in question, in the Register. Rather against the alleged entry dated 17-07-1989, name of one Darshan Singh son of Bhola Singh was entered. In view of the evidence of Vinod Kumar and Darshan Singh, C.R. No. 5934 of 2007 -6- I have no hesitation in coming to the conclusion that the Rent Deed had been subsequently prepared and cannot be relied upon. With respect to the argument of the counsel for the petitioner that Kewal Krishan was alive but has still not been examined, amounts to failure on part of the respondent to prove his case that he had been paying rent to Kewal Krishan @ Rs.200/- p.m. This argument of the counsel for the petitioner does not hold good, in view of the fact that Kewal Krishan was the real brother of Muni Lal. Moreover, the petitioner could not establish the tenancy as alleged by him. The document of Rent Note (Ex.A-1) relied upon by the petitioner, as discussed, cannot be relied upon. Once, the petitioner is unable to prove the relationship of landlord-tenant, he cannot allege non-payment of rent. Once, the Rent Note on which the landlord-petitioner is placing reliance, is found to be doubtful, reliance cannot be placed on the oral evidence alone. In fact, the existence of the Rent Note was not mentioned either in the pleadings or even in the replication. The mention of the Rent Note saw the light of the day for the first time in the evidence. The document A-1, therefore, cannot be relied upon. Learned counsel for the petitioner has relied upon the judgment of this Court in All India Rent Control Journal 1991(1) 602 that since the tenant had deposited the rent without any objection, he cannot deny that the respondent is not his landlord. However, the said judgment is not relevant in the facts of the present case. The judgment passed in the case of Col. Mohinder Singh vs. Major Sowinder Singh Sidhu reported in PLR 1996(1) 365 is also not relevant in the facts of the present case. In the light of the aforesaid discussions, I find that the relationship of the landlord and the tenant does not stand proved. C.R. No. 5934 of 2007 -7- Accordingly, there is no ground to interfere in the judgment dated 03-09-2007 passed by the Appellate Authority, Barnala. Resultantly, the present writ petition is dismissed being devoid of merit. (NIRMALJIT KAUR) JUDGE 02-03-2009 gurpreet