PRAHLAD SINGH Vs. COL. SUKHDEV SINGH

JUDGEMENT

(1.) VIDE rent note Exhibit P.2, Prahlad Singh took Booth No. 10 in Sector 18-C, Chandigarh, from Col. Sukhdev Singh on monthly rent of Rs. 225 for doing his business. On 6.10.1977, the landlord filed an application for eviction of the tenant on the ground of non-payment of rent with effect from 1.4.1976 to 31.10.1977. The arrears of rent for the month of October, 1977, were also claimed on the ground that according to rent note, the rent was payable be 5th of the month for which the rent was to be paid in advance. On 9.3.1978 which was the first date of hearing the tenant tendered Rs. 3,600 towards rent and also tendered interest and costs. In the written statement, the tenant took the stand that the rent for the months of April and May, 1976, had already been paid and for the period 1.6.1976 to 30.9.1977, the rent was tendered on the first date of hearing and that rent for the month of October, 1977, had not fallen due and, therefore, the tender was valid. In replication, the landlord denied if rent for the months of April and May, 1976 had been paid. Thereafter the case proceeded. The tenant absented after some hearing and on 25.11.1978 the ex parte ejectment order was passed. On 14.5.1979, the tenant filed an application for setting aside the ex parte ejectment order which application was tried by the Rent Controller who on appreciation of evidence led by the parties, came to the conclusion by order dated 31.1.1981 that sufficient cause for setting aside the ex parte order was made out. Thereafter the evidence was recorded in the presence of the tenant and by order dated 17.10.1981 the tenant was ordered to be evicted on the finding that rent for the months of April and May, 1976 and October, 1977, had not been tendered on the first hearing. The tenant took the matter in appeal before the Appellate Authority. Appellate Authority by order dated 4.3.1982 dismissed the appeal after recording findings that even if the rent for the month of October, 1977 was not due, since the tenant had not paid rent for the months of April and May, 1976 the tender was short and he was liable to be evicted. The tenant had argued before the Appellate Authority that rent for the month of September, 1977 was also not due. On that assumption also, the Appellate Authority concluded that since rent for two months had not been tendered, at least the tender for one month was short even if adjustment of rent for the month of September, 1977 was given to the tenant. Accordingly, the ejectment order was upheld. This is tenant's revision.

(2.) AFTER hearing the learned counsel for the parties and on perusal of the record, I am of the view that there is no scope for interference in this revision. The first argument raised before me is that in proceedings taken by the tenant for setting aside the ex parte ejectment order it was proved by him that on 10.8.1978 the landlord had received Rs. 1,350 from the tenant (six months' rent) vide receipt Exhibit R.1 and on 10.11.1978 the landlord had accepted Rs. 675 from the tenant (three months' rent) vide receipt mark-A, i.e., during the pendency of the eviction petition, out of Court. Hence the ejectment petition could not continue. It s further argued that the Rent Controller vide his order dated 31.1.1981 had commented about the conduct of the landlord in keeping the tenant in dark by suggesting to him that since he had been paying the rent, the proceedings before the Rent Controller would either be got dropped or withdrawn. A reading of the order of the Rent Controller dated 31.1.1981 does show that finding has been recorded in favour of the tenant and against the landlord but I am of the view that finding has to be seen in the context of finding on the ground of setting aside the ex parte proceedings and not for the decision of the main ejectment petition. Hence, I am of the opinion that on the basis of certain observations made in order dated 31.1.1981, the ejectment petition cannot be dismissed.

(3.) IT was then argued that the landlord having received the rent on 10.8.1978 and 10.11.1978 vide receipt Exhibit R.1 and Mark-A during the pendency of the ejectment proceedings, there was novation of contract and, therefore, the ejectment application could not proceed. It is true that the landlord accepted the rent from the tenant out of Court for the period during which the matter was pending before the Rent Controller, but I find no legal impediment in the way of the landlord to receive the rent when the amount was due to him as the tenancy had not come to an end by passing of the ejectment order. Ex parte ejectment order had been passed on 25.11.1978 and by that time rent for a period of over 13 months had fallen due whereas the landlord was paid rent only for nine months. The landlord did not accept rent for a period beyond that date when ex parte ejectment order was passed. Hence, it could not be said that there was novation of contract.