CR No. 1266 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 1266 of 2010 (O&M) Decided on : 30-08 2010 Jeet Ram ....Petitioner VERSUS Kuldeep Singh and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Pandit Vinod Sharma, Advocate for the petitioner. Mr. G.P.Vashisht, Advocate for the respondents MAHESH GROVER, J It's a landlord petition directed against the order of the Appellate Authority dated 25.8.2009 by which the petition preferred by the petitioner under Section 13 of the Rent Act was declined. The petition for eviction of the respondents was initiated on the ground of non- payment of rent from January, 2003. The tenancy in this case was oral and the petitioner pleaded that the rate of rent was Rs.1500/- per month and the water and electricity charges were to be paid separately by the respondents. Respondents on the other hand pleaded that the rate of rent was Rs.550/- per month and that they had paid the entire arrears of rent to the petitioner. Learned Rent Controller concluded that the rate of rent was CR No. 1266 of 2010 (O&M) 2 Rs.1500/- per month and also that the respondents had not paid the rent from January 2003 onwards and also not paid water and electricity charges and it thus ordered the eviction of the respondents and in appeal the findings were reversed and the Appellate Authority concluded that the rate of rent was Rs.550/- per month and that only water and electricity charges were not paid and rents were paid. It thus upset the order of the Rent Controller which has resulted in the filing of the present revision petition. While referring to the material on record, learned counsel for the petitioner contended that the findings are erroneous and are based on conjectures and surmises. Learned counsel for the respondents on the other hand sought to defend the findings of the Appellate Authority. I have heard learned counsel for the parties and have gone through the material on record and the impugned judgment. There is no denial to the fact that tenancy was oral. Petitioner in order to substantiate his plea of rate of rent as Rs.1500/- per month had produced oral evidence in the shape of PW1 and PW2 who testified that rate of rent in the vicinity was Rs.1000/- to Rs.1500/- per month. Respondents on the other hand set up a categoric stand that the rate of rent was Rs.550/- per month. They did not produce any evidence to off-set the oral evidence in favour of the petitioner except for producing one witness RW2 namely Binda Devi before whom it was pleaded that the tenancy was created. However, the Appellate Authority discarded the objection of the petitioner that such plea was not there in the written statement and hence evidence to this effect could not be looked CR No. 1266 of 2010 (O&M) 3 into. There is no doubt regarding this proposition. If the case of the respondents was that the tenancy was created in the presence of some person then certainly it was an important fact to be pleaded. In any eventuality it is a case where the entire evidence regarding the rate of rent is based on oral evidence and considering the fact that the demised premises are situated in Chandigarh, the rate of rent as claimed by the petitioner at the rate of Rs.1500/- per month in the year 2003 cannot be termed to be exorbitant. It is a settled proposition of law that in the eventuality of a situation where no documentary evidence or substantial evidence is available then the Court has to resort to preponderance of probabilities to arrive at a just conclusion. There was sufficient indication that the rate of rent was between Rs.1000/- , 1200/- and 1500/- per month and the Rent Controller accepted Rs.1500/- per month. In the opinion of this Court, the Rent Controller has exercised its discretion judiciously. During the pendency of these proceedings an option was given to the learned counsel for the respondents to seek instructions as to whether the respondents are willing to pay rent at the rate of Rs.1500/- per month and clear their arrears of rent, to continue with the tenancy, to which there is a flat refusal. Having regard to the aforesaid when the Court finds that the order of the Appellate Authority was not based on sound reasons and for the reason that the Appellate Authority chose to rely upon the testimony of RW2 and for the reason that the testimony of PW1 and PW2 has been brushed aside on flimsy grounds I deem it appropriate to accept the revision petition and direct the respondents to be evicted from the CR No. 1266 of 2010 (O&M) 4 premises in question. Ordered accordingly. August 30 , 2010 (Mahesh Grover) rekha Judge