JUDGMENT
M.L. Singhal, J.
1. Dewan Chand (landlord) filed application No. 37/2 of 1.8.1997/26.11.1993 under Section 13 of the Haryana Urban (Control of Rent and Eviction), Act, 1973 against Karpoori Thakur (tenant) whereby he sought his ejectment from the shop shown by letters ABCD in red in plan attached to the application situated at Jagdish Colony, Mohna Road, near Akash Cinema Ballabgarh on the ground that he has been in arrears of rent @ Rs. 800/- per month for 36 months period amounting to Rs. 21,800/- which he has failed to pay.
2. Karpoori Thakur resisted the application. It was denied that he was a tenant at a rental of Rs. 600/- per month. He tenanted this shop in October, 1981 at a rental of Rs. 275/- per month. In the year 1983, rent was increased to Rs. 300/- per month. Thereafter, rent was increased to Rs. 350/- per month. At present, the rent is Rs. 350/- per month. He has been regularly and continuously paying rent. He has paid rent upto October, 1993 in advance. His tragedy is that he (landlord) never gave him any receipt in token of realisation of rent.
3. On the first date of hearing, Karpoori Thakur tenant tendered Rs. 350/- as rent for November, 1993, Rs. 60/- as interest and Rs. 20/- as costs in all Rs. 430/-. Dewan Chand accepted this amount under protest saying that the rate of rent was Rs. 600/- per month and that Karpoori Thakur has been in arrears of rent for 36 months period totaling Rs. 21600/-.
4. Dewan Chand filed another ejectment application No. 7/2 dated 10.2.99/16.10.95 against Karpoori Thakur on the ground that he has been in arrears of rent @ Rs. 600/-per month from November 1993. As regards rent for the period prior to November, 1993, he stated the same was due from him but on that account there is already ejectment application pending against him namely 37/2 of 1.8.1997/26.11.1993.
5. Karpoori Thakur resisted this application. Karpoori Thakur deposited rent, interest and costs before the court on 23.12.95.
6. Both these ejectment applications were consolidated by the Rent Controller into ejectment application No. 37/2 dated 1.8.97/26.11.93. Learned Rent Controller dismissed both the ejectment applications on the ground that the rate of rent was Rs. 350/-per month which had been paid upto October 1993 and after that rent was tendered @ Rs. 350/- per month in court. It was found that the rate of rent was not Rs. 600/- but it was Rs. 350/-. It was found that landlord would not have stopped short and waited for 3 long years if the tenant were in arrears of rent. He found that if tenant were in arrears of rent, the landlord would have knocked the door of court at the earliest and not waited for 3 long years.
7. Dewan Chand went in appeal against the order of Rent Controller, Faridabad dated 27.2.99 whereby he dismissed his ejectment application No. 37/2 of 1.8.97/ 26.11.93. He did not file any appeal against the order whereby the ejectment application No. 7/2 of 10.2.99/16.10.95 was dismissed.
8. Appellate Authority, Faridabad accepted the appeal vide order dated 13.2.2002 and in consequence accepted the ejectment application No. 37/2 of 1993. He ordered the tenant to vacate the shop and hand over its vacant possession to the landlord within a period of two months.
9. Karpoori Thakur tenant has come up in revision to this court against this order of the Appellate Authority, Faridabad.
10. Learned Rent Controller has found that the rate of rent was Rs. 350/- per month. Appellate authority has agreed with this finding of the Rent Controller where the Rent Controller has found that the tenant was not in arrears of rent because the landlord would not have waited for 36 months long and then pressed for his ejectment on the ground of non payment of rent @ Rs. 600/- per month and he would not have a allowed rent to accumulate for a period of 3 years, Appellate Authority has found that the tenant was in arrears. He had failed to make payment of rent from November, 1990 to October, 1993 and as such rendered himself liable to ejectment. Appellate Authority found that it was for the tenant to prove that there was no arrears of rent against him and that he had already paid rent and no rent was due from him after the first date of hearing.
11. In this revision, therefore, the question for determination would only be “whether he tenant was in arrears of rent.”
12. In this case, the tenant tendered rent only for November 1993 @ Rs. 350/- per month, besides interest and costs as assessed by the Rent Controller. As regards rent for the period upto October 1993, he stated that the same stood already paid to the landlord. Tenant has failed to prove that he had already paid rent to the landlord for the period upto October 1993 and that when this ejectment application was filed, only rent for November 1993 was due. Tenant has not been able to produce any receipt to show that there was no rent due from him and that rent already stood paid to the landlord through this receipt upto this period. He stated that he took this shop on rent in October 1981 at a rental of Rs. 275/- as rent at the time of settlement of tenancy and asked for receipt. He paid him rent for 4-5 years @ Rs. 275/- per month but obtained no receipt from him. He stated that rent was increased to Rs. 350/- per month in the year 1990. No writing took place when rent was increased to Rs. 350/- per month. He paid Rs. 350/- as rent for one month. He gave him no receipt. In this case the tenant has produced no evidence to show that on the first date of hearing he was not in arrears of rent for any period upto October 1993 and that he was in arrears of rent only for November 1993. As regards the rate of rent, the onus is on the landlord to prove what was the rate of rent settled. As regards whether the tenant was in arrears of rent or there was no arrears of rent due from him, it is for the tenant to prove that there was no arrears of rent due from him.
13. It was submitted by the learned counsel for the petitioner (Karpoori Thakur) that no landlord would keep quiet if rent is not paid for a long period. In my opinion, at the same time, no tenant would go on paying rent without getting corresponding receipt. In Maman Singh Kadyan v. Smt. Roshni Bai alias Kishni Bai of Panipat, 1991 H.R.R. 510, it was held that onus in such cases lies on the tenant to show payment of rent and mere oral testimony regarding such payment, cannot suffice. In Jagdish Rai Chandna v. Swaran Dass, 2000 H.R.R. 219, it was held that the burden of proving payment of rent lies heavily on tenant. In Pishori Lal of Chandigarh v. Smt. Shanti Rai, 1992 H.R.R. 134, it was held that once the tenant has taken a specific plea that he had already paid the entire rent, then onus would be on him to prove that he was not in arrears of rent. In Smt. Chand Rani v. Shri Amar Nath, 1985 H.R.R. 258, it was held that a bald statement of the tenant is not sufficient to prove the payment of rent, onus is on the tenant to prove such payment through a reliable evidence. No written rent note between the parties – onus lis upon the landlady to prove the rate of rent. However, it cannot be held that she has come with unclean hands due to absence of such evidence.
14. Faced with this position, learned counsel for the petitioner submitted that when the landlord has not been believed so far as the rate of rent is concerned, he should not have been believed when he has stated that the tenant was in arrears of rent for the period upto October, 1993 on the date of when ejectment application was filed by him. In Jaswinder Singh v. Chander Mohan Bhasin, 1992(2) R.C.R. 159, it was held that where the finding of rent Controller is that where the rate of rent is Rs. 120/- per month, landlord is not necessarily to be disbelieved on other pleas. It was submitted by the learned counsel for the respondent that in this case if the landlord has not been believed so far as the rate of rent is concerned, this does not mean that he should not be believed when he says that the tenant was in arrears of rent. It was submitted by the learned counsel for the petitioner that tenant can still be allowed time so as to make up the deficit and his ejectment save. In Rakesh Wadhawan v. Jagdamba Industrial Corporation and Ors. (2002-2) P.L.R. 370, it was held that if the amount deposited by the tenant is found to be in excess, the Controller may direct refund, if on the other hand, if amount deposited by the tenant is found to be short/deficit, the Controller may pass a conditional order directing the tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction. While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings.
15. In this case, no latitude can be shown to the tenant who has stated that there was no arrears of rent due from him for the period upto October 1983 although the landlord had averred that he was in arrears of rent for 36 months period. If the tenant was not to tender rent @ 600/- per month, he should have at least tendered rent for 36 months period @ Rs. 350/- per month. In Teegala Satyanarayan v. G.S. Bhagwan, 1995(2) R.L.R. 676, it was held that the Rent Controller is under an obligation to record a positive finding that there was wilful default before exercising the power to give time to the tenant. In Padmakar v. Madhukar, 1996(1) R.L.R. 575 it was held that the tenant has been rightly declared a wilful defaulter when he never made any attempt to make payment even @ 35/- per month i.e. at the rate which he was claiming to be rate of rent. In Budh Ram v. Ralla Ram deceased through his legal representatives, 1987(2) R.L.R. 682 it was held that where the tender of rent on the first date of hearing fell short for 2 months, tenant rendered himself liable for ejectment. In Bal Kishan v. Krishan Kumar Gupta and Anr., 1997(1) R.L.R. 237, it was held that where the tenant has been pleading that he had been paying rent but no receipt had been issued by the landlord, onus is heavy on the tenant to prove payment of rent.
16. In this case, thus, the tenant has not been able to discharge the onus that he was not in arrears of rent at all. Mere fact that because the landlord did not knock the door of the Rent Controller earlier for claiming ejectment on the ground of arrears of rent and allowed 3 years rent to accumulate cannot till the balance in favour of the tenant that all arrears of rent already stood paid and that on the first date of hearing, no rent was due except for the month of November, 1993.
12. For the reasons given above, this revision fails and is dismissed. In consequence
order of the appellate authority ordering the ejectment of the tenant is maintained while
that of the Rent Controller dismissing the ejectment application is set aside. No order as
to costs.