MEHAR CHAND Vs. TILAK RAJ GIRDHAR

JUDGEMENT

(1.) This order will dispose of Civil Revision Petitions Nos. 909 and 910 of 1980, as the facts are identical in both of them and the landlord is also the same.

(2.) Tilak Raj Girdhar, landlord, sought the ejectment of his tenants Mehar Chand and his son Dalip Kumar in rent application No. 2-1 of Sept. 17, 1977 and that of his other tenant, Dewan Chand in rent application No. 51-R of 1977, on the ground of non-payment of rent. Against Mehar Chand and his son Dalip Kumar, it was alleged that the shop, in dispute, was on rent with them at a monthly rent of Rs. 130/-, they were liable to pay the same on the first of each month and that they had not paid the rent from Oct, 1, 1968, till the date of the application which was instituted on Sept. 17, 1977, and as such, they were liable to be evicted from the demised premises. The tenants-petitioners admitted the relationship of the landlord and tenant between the parties, but pleaded inter alia that the rate of rent was Rs. 60/- and not Rs. 130/- per month, as alleged by the landlord and that they had paid the rent up to July 31, 1977 However, the rent up to Aug 1, 1977 to Dec, 31, 1977, amounting to Rs. 300/- at the aforesaid rate of Rs. 60/- per month together with Rs. 10/- as interest and Rs. 30/- as costs were tendered on Jan. 12, 1978, the first date of hearing. However, the amount so tendered was refused by the landlord. It was further pleaded that the landlord never issued any receipt after receiving the rent and he had also filed an application for ejectment earlier through one Lal Singh who claimed himself to be mortgagee under the landlord, which was dismissed on Aug. 18, 1975 and that order of dismissal was upheld in appeal on Apr. 3, 1976 by the Appellate Authority. In the application against Dewan Chand, tenant, the rent was claimed at the rate of Rs. 120/- per month from Oct, 1, 1965, that is, from the same date as in the case of Mehar Chand and his son Dalip Kumar, In reply to this application, the same plea was taken by the tenant, viz., the rate of rent was Rs. 60/- and not Rs. 120/- per month and the rent had been paid up to July 31, 1977 whereas the rent from Aug. 1, 1977 to Dec. 31, 1977 amounts to Rs. 300/- at the rate of Rs. 60/- per month. Rs. 10/- as interest and Rs. 30/- as costs, in all Rs. 340/- were tendered on Jan. 12, 1978, the first date of hearing but refused by the landlord. On the pleadings of the parties, the Rent Controller framed the following issues in both the cases:

(3.) The learned counsel for the petitioners contended that the Appellate Authority has absolutely made out a new case for the landlord which was not even set up by him in his ejectment applications. According to the landlord, the arrears of rent were from Aug. 1 1968, whereas the Appellate Authority has found that at least from Aug, 18, 1975, the arrears of rent were due According to the learned counsel, this was never the case set up by the landlord either in the ejectment applications or any where in his statement applications or anywhere in his statement. It was further contended that it cannot be believed that the landlord did not receive the rent since 1968 and he waited for the same for nine years up to 1977, without taking any steps for the recovery of the same during that period. He also brought to my notice the statement of the landlord who himself appeared as A. W. 2, wherein he has stated that one month's rent, in advance, was received by him, but no receipt was issued therefor. Under these circumstances, it was submitted, that when it has been concurrently held by both the authorities below that the landlord was claiming excessive rent, it could not be held that the tenants were in arrears of rent, as alleged by the landlord. On the other hand the learned counsel for the landlord submitted that whether the rent has been paid or not, the onus to prove the same is always on the tenant and the Appellate Authority on the appreciation of the evidence on the record, has come to the conclusion that in any case, the tenants failed to pay the rent, at least from Aug. 18, 1975, and it being a finding of fact, could not be interfered with by this court in the exercise of its revisional jurisdiction.