LT. COL. BALDEV ARORA Vs. D.C. JAIN

JUDGEMENT

(1.) The revision is at the instance of the landlord whose petition for eviction was dismissed. Before the Rent Controller, two grounds were urged. One, the tenant had been in default for payment of rent from 1.9.1991 to September, 1992. The second ground was that the building had remained vacant for eight years and the tenant had ceased to occupy the premises. The Rent Controller allowed the petition for eviction on the ground of non-payment of rent while rejecting the contention of the tenant that he had actually paid the rent during the period that the landlord was complaining off and the rent of Rs. 3,000/- was paid for the period that included from September, 1991 to September, 1992 by cheque. He produced before the court the bank statement that shows the debit of Rs. 3000/- and the cheque having been paid to one Baldev. The Rent Controller observed that the person connected with the bank relating to the entry in this account was not examined and therefore, the payment of Rs. 3000/- said to have been made through cheque was not proved to have been made to the credit of the landlord. However, the contention of the landlord that the building had been closed and not used by the tenant was rejected on accepting the defence that the tenant who was running the metal industry since 1977 had closed the factory in 1984-85 and he was carrying on the consultancy business in the said premises.

(2.) Against the order of eviction passed by the Rent Controller, the tenant sought to produce the evidence under Order 41 Rule 27 CPC, evidence from the bank that the amount was actually credited to the landlord's account. If the landlord's contention was true that the amount was said to have been paid to Baldev and not himself and no amount was received by him, he would not have opposed the application. However, it appears that the landlord opposed the application and the application came to be dismissed. At the time of arguments, the court took notice of the fact that admittedly at the first hearing subsequent to filing of the petition, the tenant had paid from January, 1992 to December 1992, the rent, interest and costs and if at all, the adjudication must only examine whether the tenant had paid the rent from 1.9.1991 to 31.12.1991. This, the appellate authority examined from the point of view the defence taken by the tenant that he had actually paid Rs. 3000/- by cheque and the same was credited to the landlord's account. The court observed that no farther proof was necessary by having to examine the banker. Bank entry was per se admissible. I hold the reasoning to be correct for an entry under the Banking Regulation Act, 1949 is admissible per se and would require no further proof. If the contention of the landlord was that the payment stood debited to the tenant's account and what was encashed by Baldev was not himself, the onus shifted to the landlord from the tenant on production of his proof that cheque had been issued of Rs. 3000/- to show his own bank account statement that no amount stood credited to his account. If at all the payment through cheque must have been through account and the best method of discrediting the tenant's contention was to show that Rs. 3000/- was never credited to any of the bank account which he maintained. I find the reasoning adopted by the appellate authority in accepting the evidence brought through Ex. R-19 was perfectly justified and find that the claim of the landlord for ejectment on the ground of non-payment of rent was liable to be rejected and correctly rejected.

(3.) As regards the Rent Controller's finding that the landlord had not proved that the tenant had ceased to occupy the premises, it should have been possible for the landlord to have a contention in appeal even without filing cross objection or cross-appeal that a particular finding entered by the Rent Controller was erroneous. After all, there was no need to prefer an appeal when he had got an order of eviction and could be treated as aggrieved person. The appellate authority has observed in its judgment that beyond the point regarding non-payment of rent, no other argument was advanced. I would take the statement of the court in its judgment as final for there is no ground even in the revision that the appellate authority had actually heard the arguments of the landlord regarding the adverse finding entered against him by the Rent Controller but he has not considered the same.