Regular Second Appeal No. 3694 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3694 of 2008 Date of decision : May 25, 2011 Ashok Kataria ....Appellant versus Baljinder Ghag ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. HNS Gill, Advocate, for the appellant Mr. KS Dhanora, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendant Ashok Kataria who was successful in the trial court but has been partly unsuccessful in the appellate court has filed the instant second appeal. Respondent-plaintiff Ms. Baljinder Ghag filed suit against defendant-appellant for recovery of Rs 2,42,136/-. Admittedly, defendant was tenant in the disputed premises under the plaintiff on rent of Rs 5700/- per month vide rent note dated 25.1.1999. The plaintiff claimed Rs 2,05,200/- as arrears of rent since 1.4.2000 till 3.4.2003 alleging that defendant had not paid rent for the said period as well as for some earlier Regular Second Appeal No. 3694 of 2008 -2- period which had become time barred. The plaintiff also claimed Rs 36,936/- as interest @ 12% per annum on the arrears of rent. The defendant while admitting the tenancy, inter alia, pleaded that he paid rent to the plaintiff on 1.4.2003 for the period from 1.1.2002 till 31.3.2003 and for the preceding period he had been paying rent to plaintiff's attorney. The defendant, thus, alleged that no amount was due from the defendant to the plaintiff. Learned Civil Judge (Junior Division), Kharar vide judgment and decree dated 24.4.2006 dismissed the plaintiff's suit. However, first appeal preferred by plaintiff has been partly allowed by learned Additional District Judge, Rupnagar vide judgment and decree dated 31.1.2008 and thereby the plaintiff's suit has been partly decreed for recovery of Rs 85,500/- as arrears of rent for the period from 1.1.2002 to 31.3.2003 along with interest thereon @ 9% per annum from due date till recovery. Feeling aggrieved, the defendant has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Onus to prove that defendant had paid rent for the aforesaid period from 1.1.2002 to 31.3.2003 was on the defendant-appellant. However, he has miserably failed to discharge the said onus. The defendant alleged that he paid rent for the aforesaid period to the plaintiff in the presence of Ajit Pal Singh and Manjit Singh. However, none of them has been examined by him in support of his aforesaid version. Consequently, adverse presumption has been rightly drawn against the Regular Second Appeal No. 3694 of 2008 -3- defendant by the lower appellate court. Defendant also stated that he is income tax assessee. However, defendant has not produced his account books to depict that he had paid rent for the aforesaid period to the plaintiff. The defendant has also not produced his income tax returns by stating that he had not filed income tax returns for the last three years. However, it is not explained as to why he did not file income tax returns when admittedly he is income tax assessee. Consequently, adverse presumption arises against the defendant for this reason as well. The defendant has pleaded that he had been paying rent to plaintiff's attorney Lalit Kumar every month. It is not explained as to why he accumulated rent for 15 months from 1.1.2002 to 31.3.2003 which he allegedly paid to the plaintiff on 1.4.2003. Defendant's version is, thus, inherently unreliable. Tenancy was created by rent note Ex. P3. In view thereof, it does not appeal to reason that defendant paid the rent to the plaintiff without any receipt. On the contrary, plaintiff has since sold the premises and defendant is now paying rent to the present owner through counsel i.e. with adequate proof of having paid the rent. However, there is no written document or other cogent evidence to depict payment of rent to the plaintiff for the disputed period from 1.1.2002 to 31.3.2003. Learned counsel for the appellant emphatically contended that plaintiff-respondent herself has not stepped into witness box and her attorney who stepped into witness box was appointed as attorney just before the filing of the suit. It is correct that plaintiff has not appeared as her own Regular Second Appeal No. 3694 of 2008 -4- witness. However, at the same time onus was on the defendant to prove that he had paid rent for the aforesaid period to the plaintiff. The defendant has miserably failed to do so. Finding of the lower appellate court to this effect is fully justified by the evidence on record and is supported by various reasons particularly the reasons noticed in the preceding paragraphs. Accordingly, the said finding cannot be said to be perverse or illegal nor it is based on misreading or misappreciation of evidence. So the said finding does not warrant interference in exercise of second appellate jurisdiction. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) May 25, 2011 Judge 'dalbir'