JAGDISH PARSHAD SHARMA Vs. SITA RAM

JUDGEMENT

(1.) ON 13th April, 1976, the landlord filed an application for ejectment of the tenant on the ground of non-payment of rent with effect from 1st April, 1973 at the rate of Rs. 125/- per month from a shop situate in the town of Gohana, which was let out to the tenant in January, 1971, under an oral tenancy. The tenant pleaded that the agreed rate of rent was Rs. 30/- and not Rs. 125/-. He also pleaded that he had already paid rent upto 31st July, 1975. However, within the prescribed time, the tenant tendered Rs. 3568.37 towards rent, interest and costs etc. to avoid eviction. During evidence, tenant produced five witnesses and himself appeared as the sixth witness. Toru Ram R.W. 2, Mange Ram R.W3 and Jatti R.W. 4 categorically stated that the tenancy was settled in their presence. While the tenant was claiming Rs. 40/- per month, the tenant was wanting to pay Rs. 25/- per month and ultimately Rs. 30/- per month was agreed upon. The tenant appeared as RW.6 and stated in examination in-chief that the agreed rate of rent was Rs. 30/- per month. In the opening part of cross-examination he was asked that the tender which was made in court was at the rate of Rs. 85/- per month. He explained that he had asked his Advocate to make the tender at the rate of Rs. 125/- per month and he was not aware as to under what circumstances rent at the rate of Rs. 85/- was tendered. In the penultimate part of the cross-examination the tenant stated that it is correct that the rate of rent was Rs. 125/- per month and that he had paid rent upto 10th April, 1973. After this statement was made by the tenant, he was cautioned by his lawyer and then he volunteered and said that the rate of rent was not Rs. 125/- per month. The Rent Controller treated the aforesaid statement of the tenant as an admission for recording a finding that the agreed rate of rent was Rs. 125/- per month. It is true that reference to the other evidence produced by the parties was also made out but finding was recorded on the basis of the admission of the tenant. Since tender made within the prescribed period was found to be short, eviction order dated 12th September, 1977 was passed. The tenant's appeal before the Appellate Authority remained unsuccessful. The Appellate Authority also decided the case mainly on the admission of the tenant. This is tenant's revision.

(2.) THE tenant filed an application under Order 41 rule 27 of the Civil Procedure Code for permission to lead additional evidence as during the pendency of the revision, he found a photostat copy of the receipt, which was issued by the landlord for the months of April, May, June and July, 1975. Notice of the application was given to the counsel for the opposite side by order dated 20th July, 1984 and the application was ordered to be heard along with the main revision.

(3.) ADVERTING to the application for the additional evidence, the counsel for the tenant has shown a photostat copy of receipt showing payment of Rs. 120/- for the four months, April, May, June and July 1975 bearing the signatures, alleged to be of the landlord on a revenue stamp. The learned counsel could not produce the original receipt. During arguments, four diaries were produced. Two to show that the landlord has been receiving rent from the tenant during the pendency of this revision petition under the orders of this Court and sometimes he signed in Urdu and sometimes in Mundi Hindi. The other two note-books/diaries contain rent receipts for the years 1974-1975. The learned counsel has stated at the bar that it is a fit case for grating permission to the tenant to lead additional evidence and especially when the matter has to be remitted for fresh decision on the basis of evidence already led.