JUDGMENT
Sham Sunder, J.
1. This revision petition is directed against the judgment dated 19.5.1995, rendered by the Appellate Authority, Ludhiana, vide which it set aside the judgment dated 20.5.1992, rendered by the Rent Controller, Ludhiana, and ordered ejectment of the tenant-petitioner, on the ground of non-payment of arrears of rent.
2. The facts, in brief are that the respondent (petitioner herein) was inducted as a tenant, in the demised shop, bearing No. B-17/2008/2 situated in Basti Abdullapur, Ludhiana, at a monthly rental of Rs. 150/- by Bachan Singh, landlord (respondent herein). The ejectment of the tenant-petitioner, was sought, on the grounds, that he had been in arrears of rent w.e.f. 1.4.1976, at the rate of Rs. 150/- per month; that he had commuted such acts, as amounted to nuisance, to the occupiers of the neighbouring buildings and that the demised premises were required by the respondent-landlord, for his personal bona fide necessity.
3. In the written statement, filed by the respondent (petitioner herein) he admitted the relationship of landlord and tenant between the parties. It was stated that the rate of rent in respect of the demised premises was Rs. 80/- per month, and not Rs. 150/- per month. It was further stated that the matter with regard to the rate of rent and payment of arrears of rent was already subjudice, between the parties, in another application, and as, such, this ground was no more available to the landlord. The rent from 1.12.1985 to 30.11.1986 along with interest and cost was tendered. It was stated that rent from 1.8.1985 to 30.11.1985, was tendered in the Court of rent Controller, in another ejectment application. It was further stated that the rent for the remaining period, claimed by the landlord had already been paid to him. The tender made by the tenant, was accepted, under protest, by the landlord. The remaining averments, were denied, being wrong.
4. On the pleadings of the parties, the following issues, were struck:
1. Whether the respondent is liable to be ejected from the disputed premises on the grounds mentioned in para No. 2 of the petition? OPA
2. Whether the petitioner is estopped to take up the plea of personal necessity? OPR
3. Whether the petition is barred by constructive resjudicata? OPR
4. Whether the petition is malafide? OPR
5. Relief.
5. The parties led evidence. After hearing the learned Counsel for the parties, and, on going through the evidence, the Rent Controller came ‘to the conclusion, that the rate of rent of the demised premises was Rs. 80/- per month. He further came to the conclusion that the tender made was valid and that the grounds of ejectment were not proved. Ultimately, he dismissed the application.
6. Feeling aggrieved, against the judgment dated 20.5.1992, of the Rent Controller, an appeal was preferred by the landlord, which was accepted by the Appellate Authority, and the ejectment of the tenant was ordered only on the ground of non-payment of arrears of rent, from 1.4.1976 to 31.7.1985 at the rate of Rs. 150/- per month.
7. Dissatisfied with the judgment dated 19.5.1995 of the Appellate Authority, referred to herein before, the instant revision, petition was filed.
8. I have heard the learned Counsel for the parties, and have gone through the record of the case, carefully.
9. The learned Counsel for the revision-petitioner, at the very outset, contended that the Appellate Court, was wrong ,in coming to the conclusion, that the rate of rent, in respect of the demised premises, was Rs. 150/- per month. The submission of the learned Counsel for the appellant, in this regard; does not appear to be correct. No doubt, it was for the landlord to prove the rate of rent, in respect of the demised premises, yet he was successful in doing so. Bachan Singh, landlord, when appeared as, AW-1, in clear-cut terms, stated that Rajinder Kumar, was inducted, as a tenant, in the demised premises on 28.1.1976 at the instance of Avtar Singh, in demised premises. It was further stated by him that the rent settled was at the rate of Rs. 150/- per month, besides house tax, at the rate of 15%. It was further stated by him that Major Singh, his son, who had since died, executed the receipt. He brought the receipt book and proved Ex.A-1 and A-2, counterfoils of the receipts, showing the payment of rent by the tenant for three months, at the rate of Rs. 150/- per month. On the back of these counter foils, he signed at A1/a and A2/1. He further stated that w.e.f. 1.4.1976, the tenant did not pay rent, at the rate of Rs. 150/- per month and put him off, on one pretext or the other. He further stated that the tenant tendered rent at the rate of Rs. 80/- per month for certain period. The statement of Bachan Singh was duly corroborated by Avtar Singh. AW-2, who got the tenancy settled. Rajinder Kumar-respondent, when appeared, as RW-1, no doubt, stated that the rate of rent was Rs. 80/- per month. He also denied his signatures on the back of the counter-foils, referred to above, produced by the landlord, in his statement. His mere denial of signatures on the counter-foils, did not matter much. Had mere denial of signatures on the counter foils, then he would have adduced evidence of a hand-writing expert, or some independent witness, in that regard. He did not produce any evidence, to prove that the signatures, on the counter-foils, in question, did not relate to him or the same were forged. The Counsel for the petitioner-tenant, no doubt, relied upon RW-1/1, copy of the order dated 18.1.1978, passed by the Municipal Corporation Authorities, and RW-1/2 copy of the assessment register, for the year 1979-80/83-84. However, it may be stated here, that these documents, cannot be said to be a conclusive proof, regarding the rate of rent, in respect of the demised premises. Even, in the earlier rent petition, filed by the landlord, he claimed rent, at the rate of Rs. 150/- per month. In Maman Singh Kadyan v. Roshni Bai alias Krishni Bai of Panipat (1991-2)100 P.L.R. 541 and Lakhbir Singh v. Ram Parkash of Phillaur , it was held that the rate of rent recorded in the municipal record, cannot be taken to be the actual rate of rent, particularly, when there is no evidence, as to whether, the rate of rent was recorded in the municipal record, is a fair rent, or the actual rent, paid by the tenant. No evidence, was produced, by the tenant, by summoning the relevant files of the Municipal Corporation, as to who made the entries, in the assessment register, and, as to under what circumstances, the entries were made and, wherefrom, the information with regard to the rate of rent was received and recorded in these documents. The Appellate Authority, was, thus, right in coming to the conclusion, that the rate of rent of the demised shop was Rs. 150/- per month. The submission of the learned Counsel for the petitioner, being without merit, must fail and the same stands rejected.
10. It was next contended by the learned Counsel for the revision-petitioner, that the revision-petitioner, had already paid the rent from 1.4.1976 to 31.7.1985. Such a plea was also taken up by the tenant in his written statement. Rajinder Kumar, when appeared as, RW-1, no doubt stated that he had already paid the rent for the period from 1.4.1976 to 31.7.1985. However, his bare statement, could not be said to be a gospel truth, to prove this factum. In case, he had paid the rent, for the said period, he must have insisted upon issuing the receipt. In case, the landlord was not issuing the receipts to him, against the payment of rent, then he could move an application, in the Court of the Rent Controller, for the deposit of the same. He could also send the rent to the landlord, by way of money-order, so as to retain the written proof, regarding the payment of the same. He could also deposit the rent, in the account of the landlord, by way of cheque, so as to furnish documentary proof, with regard to the payment thereof. His mere statement, to the effect, that he was not being issued receipts at the time of the payment of rent also cannot be said to be believable. Since, the tenant took up the specific plea, in the written statement, that he had already paid the rent for the period from 1.4.1976 to 31.7.1985, it was for him to prove this factum, through cogent and convincing evidence. Even, in the earlier ejectment petition No. 327 of 27.9.1985, certified copy whereof, is Ex.R-1, the landlord claimed rent at the rate of Rs. l50/- per month, from 1.4.1976 onwards. In the written statement, filed in that application, no doubt, it was stated by the tenant that the rate of rent was Rs. 80/- per month, and he had already paid the same from 1.4.1976 to 31.7.1985. The petition was withdrawn, by the landlord, vide statement, copy whereof, is Ex.R-4, on the ground, that he had already filed another petition, on other grounds, including the ground of non-payment of arrears of rent. This clearly goes to show that through-out, the claim of the landlord, was that the tenant had ‘ been in arrears of rent from 1.4.1976, onwards. It was never the claim of the landlord, that the tenant had been in arrears of rent, from 31.7.1985 onwards. The Appellate Authority was, thus, correct, in coming to the conclusion, that the tenant failed to prove that he had tendered or paid the arrears of rent from 1.4.1976 to 31.7.1985, either at the rate of Rs. 150/- per month, or at the rate of Rs. 80/- per month. The submission of the learned Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected.
11. It was next contended by the learned Counsel for the revision-petitioner, that it could not be imagined, that the landlord would, sleep over the matter, for a period of 10 years, waiting for the receipt of rent. He further contended that had the arrears of rent, been due to the landlord, from the petitioner, then he would not have taken such a long time, in filing the application, for ejectment. The submission of the learned Counsel for the revision-petitioner, in this regard, also does not appear to be. correct. In the East Punjab Urban Rent Restrictions Act, 1949, no period of limitation, has been prescribed within which, the ejectment application for seeking ejectment of the tenant, on any of the statutory grounds, could be filed. Even time barred arrears of rent, can be claimed, by the landlord, by setting up a ground of ejectment, against the tenant. In these circumstances, mere filing of an ejectment application, after about 10 years, when the rent became due to the landlord did not, in any way, vanish his legal right. The submission of the counsel for the petitioner, is thus rejected.
12. The next question, that falls for determination, is, as to whether, the ejectment order was required to be passed immediately, on coming to the conclusion, that the tender was short, and invalid, or the tenant was to be again afforded an opportunity to pay the arrears of rent and, only on his failure to do so, he was to be held liable to ejectment. The counsel for the revision-petitioner contended, that in view of the principle of law, laid down in Rakesh Wadhawan v. Jagdamba Industrial Corporation , a conditional order was required to be passed, regarding the amount of rent due, to the landlord, and afford an opportunity to the tenant-petitioner, to deposit the same, within the specified time, and only, on his failure, to do so, ejectment order could be passed. He further contended that since such a procedure, was not adopted, ejectment order could not be passed. It was further contended by him, that, under these circumstances, the judgments of the Rent Controller, as also of the Appellate Authority, deserve to be set aside, and the case was required to be remanded back, to the Rent Controller, with a direction that he should pass a conditional order, in accordance with the principle of law, laid down, in Rakesh Wadhawan’s case (supra) and, thereafter, afford an opportunity to the tenant, to make tender of the amount, found to be short or deficient. The contention of the learned Counsel for the petitioner-tenant is correct. The relevant operative portion of the judgment in Rakesh Wadhawan’s case (supra) is extracted hereunder:
30. To sum up our conclusion are:
(1) In Section 13(2)(i) proviso, the words ‘assessed by the controller’ qualify not merely the words’ the cost of application’ but the entire preceding part of the sentenced i.e. ‘the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application.
(2) The proviso to Section 13(2)(i) of East Punjab Urban Rent Restriction Act, 1949 casts an obligation on the controller to make an assessment of (i) arrears of rent (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the ‘first date of hearing’ after the passing of such order of ‘assessment’ by the controller so as to satisfy the requirement of the proviso.
3. Of necessity, ‘the date of first hearing of the application’ would mean the date of falling after the date of such order by controller.
4. On the failure of the tenant to comply nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the controller.
5. If the final adjudication by the controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the controller may direct a refund. If, on the other hand, the amount deposited by the tenant is found to be short or deficient, the controller may pass a conditional order directing tenants 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.
6. 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.
Similar principle of law, was laid down, in Vinod Kumar v. Prem Lala 2003(2) R.C.R. 329.
14. In my considered opinion, it is thus, a fit case in which the matter should be remanded to the Rent Controller with the aforesaid observations.
The Counsel for the respondent-landlord, however, contended, by relying upon Hukma Devi v. Bhagwan Dass that since the statement of the tenant was found to be false, with regard to the rate of rent, and the period for which the arrears of rent were due, the principle of law, laid down in Rakesh Wadhawan’s case (supra), is not applicable to the facts of the present case. The submission of the learned Counsel for the respondent-landlord, does not appear to be correct. In Hukma Devi’s case (supra), the tenant had denied the relationship of landlord-tenant. He had gone a step further, by stating that, he had already vacated the demised premises, and handed over the possession thereof, to the landlord. He further asserted that after he relinquished the possession of the shop the same was given on rent by the landlord, to one Kesho Ram s/o Piara Ram, who was running the cloth business therein, under the name and style of Mahavir Garments. The locus standi of the landlord was challenged. However, the Authorities under the Act, found the assertion of the tenant false. The tenant also did not tender the arrears of rent. Accordingly, this Court held that the tenant could not seek the protection of law laid down in Rakesh Wadhawan’s case (supra) on account of his blemished conduct, as he denied the relationship of landlord-tenant, and even had not tendered the arrears of rent. In the instant case, the revision petitioner, never denied the relationship of landlord-tenant. He even tendered the arrears of rent, which according to him, were due after 31.7.1985, at the rate of Rs. 80/- per month, and not at the rate of Rs. 150/-. There was, therefore, a dispute between the parties, with regard to the rate of rent of the demised premises, and the period for which the arrears of rent, were due. Such a controversy was clearly dealt with, in Rakesh Wadhawan’s case (supra). The facts of Hukma Devi’s case (supra), being distinguishable, from the facts of the present case, no help can be drawn, by the Counsel for the landlord-respondent. The submission of the learned Counsel for the landlord-respondent, being without merit, must fail, and the same stands rejected.
15. For the reasons recorded herein before, the revision petition is accepted. The orders dated 20.5.1992 passed by the Rent Controller and dated 19.5.1995, passed by the Appellate Authority, are set aside, and the case is remanded back, with a direction to the Successor Court of Sh. Hukam Chand, the then Rent Controller, Ludhiana, to decide the same afresh, after passing a conditional order, in accordance with the principle of law, laid down, in Rakesh Wadhawan’s case (supra) and affording the parties an opportunity of being heard. The parties are directed to appear in the Successor Court of the Rent Controller on 31.1.2008.