ASHWANI KUMA Vs. LAKSHMI DASS

JUDGEMENT

(1.) THIS is a tenant's petition against whom ejectment application was dismissed by the Rent Controller but eviction order was passed in appeal.

(2.) THE landlord Lakshmi Dass sought the ejectment of his tenant Ashwani Kumar from the shop in dispute which was rented out in the year 1979. According to the landlord the rent was Rs. 150/- per month plus house tax whereas according to the tenant the rent was Rs. 70/- per month only plus house tax. It was alleged by the landlord that the tenant was in arrears of rent with effect from 1.1.1980 to 31.8.1982. It was also pleaded that the tenant has impaired the value and utility of the demised premises by breaking of the wall etc. The ejectment application was filed on 9.9.1982. In the written statement the tenant refuted the allegations of the landlord and pleaded that he was in occupation of the shop in question as a tenant on monthly rent Rs. 70/-. According to him the rent upto June 1982 had already been paid. The rent for the month of July, 1982 was sent to the petitioner through money order but the landlord has not accepted it as he wanted to enhance the rent. He denied all the other allegations of the landlord. In the replication, filed by the landlord he controverted the plea taken by the tenant in the written statement. The learned Rent Controller found that the rent of the disputed shop was fixed at Rs. 70/- per month and not Rs. 150/- per month as claimed by the landlord. The other plea of the landlord that the tenant has impaired the value and utility of the premises, was negatived. However, no specific finding as such was given as regard the payment of arrears of rent claimed by the landlord. Consequently, ejectment application was dismissed vide order dated 3.9.1984. In appeal the learned appellate authority affirmed the finding of the Rent Controller as regard the rate of rent. However, on the question of payment of arrears of rent as claimed by the landlord the appellate authority found that the tenant has failed to prove that he had the rent for the period of 1.1.1980 to 9.6.1982, to the landlord. Since the rent for this period was not tendered on first date of hearing i.e. 30.11.1982 the tenant was liable to ejectment. Consequently, eviction order was passed on 3.12.1985.

(3.) LEARNED counsel for the petitioner submitted that no clear finding was given by the Rent Controller with respect to the non-payment of arrears of rent. The burden of proof was on landlord which he failed to discharge. The tenant was has already denied in the reply of the notice that he was not in arrears for the said period. Since the landlord claimed Rs. 150/- per month as rent whereas it has been concurrently found by both the authorities below to be Rs. 70/- per month, the landlord could not be believed. On the other hand, learned counsel for the landlord respondent submitted that primarily it is a finding of fact and should not be interfered with in revisional jurisdiction. The tenant failed to produce the receipts for payment of rent. Not only that he did not produce even his account books to show that any entry was made therein. The onus to prove the payment of arrears of rent was on the tenant. In support of this he referred to M/s R.K. Mahajan Industries 14, Industrial Area Chandigarh and another v. Shri Tarlok Singh Bedi, 1984(1) RLR 531. He also submitted that the tenant was in the habit of not paying the rent regularly. Even after the order of this Court the rent was not paid and the executing Court ordered ejectment in execution.