NATHU LAL Vs. MANGAT RAM

JUDGEMENT

(1.) THIS petition filed under sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity, 'the Act') is directed against the order dated 23.5.1984 passed by the Appellate Authority, Sirsa directing the ejecting of the tenant-petitioner on the sole ground of non-payment of rent. On the issue of non-payment of rent, the Appellate Authority reversed the findings of the Rent Controller recorded in his judgment dated 10.8.1982 holding that the tenant-petitioner was not in arrears of rent and had paid the full rent.

(2.) BRIEF facts of the case are that the tenant-petitioner was inducted as a tenant by the landlord-respondent vide rent note dated 3.5.1973 Ex.P1 at a monthly rent of Rs. 100/- p.m. According to the stipulation in the rent note, the rent was to be paid in advance. On the ground that the tenant-petitioner has failed to make payment of rent from 3.8.1976 till 7.8.1979 i.e. the date of filing the ejectment petition, the tenant-petitioner sought ejectment of the tenant-petitioner under Section 13(2) of the Act. It was further claimed that as no fair rent of the demised premises has been fixed, an amount of Rs. 3600/- on account of rent with interest, costs and house tax was due to the landlord-respondent. The Rent Controller on the basis of evidence adduced by the parties came to the conclusion that two last entries B1 and B2 in the note-book maintained for payment of rent, have been got proved by the tenant- petitioner. Those entries show payment at the rate of Rs. 100/- p.m. on 3.6.1979, 3.7.1979 and 3.8.1979. In support of the conclusion, the Rent Controller relied on the report of the handwriting expert Diwan K.S. Puri who was examined as RW2. It was on the basis of aforementioned evidence coupled with the statement made by the tenant-petitioner as RW1 that the Rent Controller accepted the entire payment of rent was made to the landlord- respondent and there was no arrears of rent to be paid by the tenant- petitioner.

(3.) DR . Gurmit Singh, learned counsel for the tenant-petitioner has argued that presumption of payment of rent in respect of previous period would come into existence in favour of the tenant-petitioner once he has proved the payment of rent in respect of the periods 3.6.1979, 3.7.1979 and 3.8.1979. According to the learned counsel under Section 114 of the Indian Evidence Act, 1872 once the last payment is shown to have been made, the payment in respect of the earlier period should be presumed to have been made. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Agya Pal Singh v. Basant Kaur, 1987(2) RCR 325 and Nirmala Wati v. Ved Parkash, 1999(2) RCR 266 and argued that in both these cases such a presumption was raised and benefit was given to the tenant by holding that once payment of subsequent years is shown to be made then the payment of preceding months is presumed to be made. The learned counsel has further argued that in any case in view of the law laid down in Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors., 2002(2) PLR 370 : 2002(1) RCR (Rent) 514 (SC) the tenant-petitioner deserves to be granted another opportunity and the judgment of the Supreme Court obliges the Rent Controller to calculate the rent and then grant opportunity to the tenant by passing a conditional assessment order. The learned counsel has further pointed out that a reference in the case of Joginder Singh v. Kuldip Chand, 2003(1) RCR 156 has been made to the larger Bench of this Court to resolve the conflict between two judgments of the Supreme Court in the case of M/s Rubber House v. M/s Excelsior Needle Industries Pvt. Ltd., 1989(2) RCR 530 and Rakesh Wadhawan (supra).