MOHINDER MASHIH Vs. JAGJIT SINGH

JUDGEMENT

(1.) Mohinder Mashih-petitioner is a tenant with Jagjit Singh respondent. Respondent had filed an application under Section 13 of the East Punjab Rent Restriction Act 1949 for eviction of the petitioner on the ground of non payment of rent. It is claimed by the respondent that the rate of rent agreed was Rs.1,000/- per month. The tenancy is stated to be oral. It is averred that the tenant had paid the rent up to 30.4.1994 and accordingly ejectment was sought on the ground that he has neither paid nor tendered any arrears of rent from 1.5.1994 up to the date of filing of the application. When put to notice, the tenant claimed that the rate of rent as agreed was Rs.275/- per month and not Rs.1,000/- per month as claimed by the landlord. Thus, on the basis of the pleadings, the rate of rent became one of the issues on which the parties contested the suit. Appreciating the respective evidence led by the parties, the Rent Controller concluded that the rate of rent is Rs.275/- per month and allowed the application for ejectment but subject to the condition that the petitioner-tenant was given 15 days time to deposit or tender the arrears of rent w.e.f. 1.5.1994 till 30.11.2000 @ Rs.275/- per month. The total amount due, as such, worked out to be Rs.21,725/- along with interest of Rs.4,833.81 Paise, which was calculated up to date inclusive of cost of the application. While ordering the conditional ejectment of the petitioner, the Rent Controller appears to have relied upon the ratio of law laid down in Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others, 2002 5 SCC 440.

(2.) The respondent-landlord, however, went in appeal against this order which was allowed inter alia observing that the Rent Controller should not have passed the conditional order and once it is noticed that the allegation of arrears of rent were proved, the ejectment of the petitioner was required to be ordered from the demised premises. Accordingly, the appeal was accepted and the order passed by the Rent Controller was modified with further direction that the petitioner be ordered to be evicted from the demised shop and hand over the vacant possession thereof to the respondent on or before 20.5.2006. This order is impugned in the present revision petition.

(3.) Learned counsel for the petitioner contends that the appellate order, impugned in the present revision petition, can not be sustained in view of the law laid down by the Hon'ble Supreme Court in the case of Rakesh Wadhawan . On the other hand, learned counsel for the respondent-landlord contends that the ratio of Rakesh Wadhawan's case would not apply to the facts of the present case. The learned counsel for landlord has made an attempt to distinguish the case on the ground that the case set up by the tenant was that he is not required to pay any rent and accordingly he can not now be shown any consideration in terms of the law as referred to above, which also came during the pendency of the ejectment petition.