GURDIAL SINGH Vs. NARINDERPAL SINGH

JUDGEMENT

(1.) THE landlord's revision petition requires consideration of the issue of duty of the Rent Controller regarding provisional fixation of rent before undertaking an enquiry under Section 13(2)(i) on the ground of subletting.

(2.) THE lower Appellate Authority affirmed the decision of the trial Court that the plea of subletting had not been established. The Appellate Court referred specifically to the fact that the landlord had not established that the tenant has lost his exclusive possession in any portion of the building and that there was no subletting. However, earlier, the Rent Controller, while upholding the claim of the landlord that there had been subletting, had merely stated that after a close scrutiny of evidence and record, he was inclined to accept the plea raised by the landlord that there had been subletting. Curiously the Rent Controller gave no reasoning for such a conclusion nor did he make any reference to any documentary evidence specifically in his order. The so-called close scrutiny alleged to have been undertaken by the Rent Controller was not accompanied by any concomitant references to any documentary evidence. The trial Court's findings on the question of fact did not accord with evidence but the Appellate Court adverted to correct legal approach and did not allow the landlord to obtain eviction on such finding.

(3.) THE contention of the tenant is that between the period of institution of the proceedings in August 1993 upto the date when the case was posted for first hearing in February 1994, he had been regularly depsiting rent to the landlord's account @ Rs. 2300/- and all these amounts were to be reckoned as payments only for past arrears if any and even if the landlord's contentions were to be accepted that the rent was Rs. 2875/-, there had been excess payment in the hands of the landlord. This reasoning of the tenant is on the assumption that the monthly payments which tenant was making from the date of institution ought not to be taken as payment due for the respective months when they fell due but they could be taken as due and payable upto the date of institution of the rent control proceedings. The construction of the relevant provision made by the counsel for the tenant is clearly untenable. A rent which fell to be paid between August 1993 being the month of the institution of the rent control proceedings and February 1994, the month when the case had been set for first hearing ought to be appropriated only for the rents payable for the respective months and it could not be adjusted or treated as payment for earlier periods. If according to the landlord, the rent payable was Rs. 2875/- it had the basis in the written document of lease and there had been a shorfall in the payment of rent by paying rent @ Rs. 2300/- per month. The tenant ought to have been granted an opportunity to make payment by the Rent Controller while making a direction as regards the provisional rent payable by the tenant.