CHHANGA RAM Vs. PRABHA RANI

JUDGEMENT

(1.) The tenant had filed this appeal under Section 39 of the Delhi Rent Control Act (hereinafter referred to as 'the Act') against the judgment dated July 5, 1980. of Shri V.S. Aggarwal, Rent Control Tribunal, Delhi, by which he allowed the appeal of the landlady-Smt. Prabha Rani and set aside the order of Shri J D.Kapoor, Rent Controller, Delhi, dated May 31,197), and had passed the eviction order against Chhanga Ram on the ground covered by clause (a) of sub-section (1) of Section 14 of the Act.

(2.) Chhanga Ram-appellant died during the pendency of the appeal and his legal heirs have been brought on record in his place. It is admitted case that the tenant had enjoyed benefit of Section 14(2) of the Act in the previous eviction case brought on the ground of non payment of rent. In the second eviction case the arrears of rent were due from the tenant with effect from September 1,1977, which the tenant is stated to have neither paid nor tendered within two months of the service of demand served by the landlady. The service of notice of demand also stands admitted. I may mention that a reply has been sent to the notice of demand which is Ex A5 in which the tenant took a plea that he had already deposited the entire arrcars of rent, as claimed in ths notice, with the Rent Controller. But it is undisputed fact that no such arrears of rent have been deposited in response to the notice of demand or otherwise. In the written statement the tenant took up a plea that the tenant had sent two Money Orders which were refused by the respondent and the tenant had also tendered the rent which again was refused by the respondent as the respondent threatened the tenant to vacate the tenanted premises. A plea was also taken that the landlady had disconnected the electricity and water supply of the tenanted premises. Counsel for the appellant fairly did not argue on the point that any such amenity had been disconnected. The Rent Controller has given a finding that it was the appellant who has been refusing to accept the rent and he believed the witnessess of the tenant on the point that an oral tender of rent was made after the service of notice of damand. The Rent Control Tribunal, however, came to a different finding and reversing the finding of the Rent Controller came to the conclusion that the tenant had failed to prove that he had tendered the entire arrears of rent within two months of the service of the notice of demand and thus the ground of non-payment of rent stood proved.

(3.) Counsel for the appellant has, however, contended that the finding of the Tribunal in this connection is perverse as it is not based on evidence. I have gone through the file of the Rent Controller and have heard the arguments and I find there is bo merit in this contention. It is significant to mention that the tenant in evidence produced RW 3, an official of the office of the Post Master in order to show that the tenant had sent Rs. 70.00 as rent in the month of November 1970 but the official stated that the record in respect of that Money Order stood weeded out. So, there is no evidence showing that in fact, that Money Order was refused by the landlady. The landlady has made statement on oath that she has not refused any such Money Order. Except for the statement of the tenant that such a Money Order was refused, there is no evidence showing that in fact, such Money Order was refused by the landlady. The Postman, who had allegedly made an attempt to serve that Money Order on the landlady, has not been examined as witness. So, it cannot be held that the landlady had refused the Money Order sent by the tenant. Even otherwise after the notice of demand had been served, it was incumbent on the tenant to have either tendered the entire arrears of rent to the landlady or deposited the same with the Controller within two months of the service of the notice of demand. Any tender of rent made prior to the service of notice of demand is of no effect. The ground of non-payment of rent becomes available to the landlady as soon as it is proved that the tenant neither has tendered nor paid the entire arrears of rent within two months of the service of notice of demand. So the tenant has to allege and prove that be had either paid or tendered the entire arrears of rent within two months of the service of notice of demand.