PETITIONER: CHHOTE LAL Vs. RESPONDENT: SHRI KEWAL KRISHAN DATE OF JUDGMENT25/02/1971 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA DUA, I.D. CITATION: 1971 AIR 987 1971 SCR (3) 855 1971 SCC (1) 623 ACT: East Punjab Urban Rent Restriction Act III of 1949 Application-under s. 13 for ejectment of tenant-Electricity charges whether part of rent for the purpose of determining arrears. HEADNOTE: The appellant was the tenant of premises owned by respondent. He was ordered to be ejected from the premises on the ground that he was in arrears of rent for more than three months and did not tender them even at the first hearing by the Rent Controller of the application for ejectment presented by the landlord under s. 13 of the East Punjab Urban Rent Restriction Act III of 1949. The District Judge dismissed the tenant's appeal. In revision the High Court of Punjab and Haryana proceeded on the basis that on the date of application which was made on 22nd September, 1964, the total arrears due from the tenant including interest and electricity charges amounted to Rs. 497.33 P. The High Court was of the view that electricity charges would form part of the rent. The amount in deposit according to the tenant, came to Rs. 469. As this amount did not cover the entire arrears of rent due the tenant was held liable to ejectment by the High Court. The present appeal was filed by special leave. HELD : In the application filed by the landlord it was nowhere stated that the arrears of electricity charges formed part of the rent. Consequently no issue was framed by the trial court whether the electricity charges formed part of the rent. On the face of it, there was no justi- fication for accepting this new point when it was not pleaded at all in the original application. [857 D] Read correctly even the rent note made it clear that the electricity charges could not possibly form part of the rent. Further the amount due for consumption of electricity each month could only be known at the end of that month, while, under the agreement the rent had to be paid in advance. The charges were variable and would depend on the amount of electricity consumed. If the electric charges were held to be. part of the rent it would lead to the inference that even the rent of the building was variable and was different each month. In view of these circumstances it was clear that the District Judge and the High Court went wrong in proceeding on the basis that the electric charge formed part of the rent and that non-payment of electric charges due amounted to non-payment of arrears of rent. [857 E-858 D] Hari Ram Jaggi v. Des Rai Sethi (1966) P.L.R. 431, distinguished. The High Court had accepted that the amount in deposit was enough to cover arrears of rent, in case the electric charges were not treated as part of the rent. On this finding, the decision of the High Court upholding the order of eviction could not be justified. Further, according to the District Judge there was no deposit or tender even of the amount of Rs. 469 as claimed by the tenant. In the revision before the High 85 6 Court this finding of the District Judge was assailed by the tenant. High Court did not examine the propriety or correctness of this finding, The case, therefore, must be remanded to the High Court for determined of the question whether the tenant had made a proper depot., c r tender of sum of Rs. 469. In case he had done so he was not in areas of rent and was not liable to ejectment. [858E-H] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1947 of
1967.
Appeal by special leave from the judgment and order dated
November 20, 1967 of the Punjab and Haryana-High Court in
Civil Revision No. 1058 of 1966.
R.V. Pillai, M. L. Aggarwal and N. K. Aggarwal, for the
appellant.
S. P. Sinha and M. V. Goswami, for the respondent.
The Judgment of the Court was delivered by-
Bhargava, J.-This appeal by special leave is by a tenant who
has been ordered to be ejected on the ground that he was in
arrears ,of rent for more than three months and did not
tender them even ,at the first hearing by the Rent
Controller of the application for ejectment presented by the
landlord under section 13 of the East Punjab Urban Rent
Restriction Act III of 1949. The High Court of Punjab and
Haryana in its judgment stated that, admittedly, the rent of
the premises was fixed at Rs. 20 per month and was to be
paid in advance each month. In addition, the rent of the
electricity was to be paid separately. In dealing with the
case, the High Court proceeded on the basis that, on the
date of the application which was made on 22nd September,
1964, the rent that was in arrears amounted to Rs. 400
calculated @ Rs. 20 per mensem. In addition, Rs. 22.05P.
were due as interest on this amount up to that date, and the
costs due could be taken at the figure of Rs. 25. This
totals to a sum of Rs. 447.05P. It was argued that, in
addition, a sum of Rs. 50.28P. was due as electricity
charges. The amount in deposit, according to the tenant,
came to Rs. 469. while the various amounts due, mentioned
above, made up a total of Rs. 497.33P. On these facts, the
High Court further was of the view that the amount due in
respect of electricity charges will certainly form part of
the rent ‘and, relying on an earlier decision of the same
Court in Hari Ram Jaggi v. Des Rai Sethi(1), it held that
the deposit of Rs.- 469 did not cover the entire arrears of
rent due, so that the tenant was liable to ejectment. On
this view, the ‘High Court upheld the order of the District
Judge directing eviction of the tenant appealing. This
appeal is directed against this border of the High Court.
(1) 1966 P. B. 431.
857
In deciding this case, neither the District Judge nor the
High Court took care to examine the pleadings in the
application for eviction put forward by the landlord-
respondent, nor did they try to properly interpret the rent-
note containing the terms of the tenancy. In para, 1 of the
application presented by the landlord, it was clearly stated
that “the respondent is a tenant of the petitioner at a
monthly rent of Rs. 20.” There was no mention at this stage
that there was any other amount which formed part of the
rent. In clause (c) of para. 2, it Was stated that “the
respondent has installed a separate meter without the
consent of the petitioner thereby causing damage to the
property and-has failed to pay the electricity charges from
January, 1963 to November, 1963 (when he got a new meter)
which come to Rs. 50.28nP.” In this pleading, all that was
claimed was that the landlord was entitled to receive
electricity charges from the tenant. It was nowhere stated
that these arrears of electricity charges formed part of the
rent. Consequently, no issue was framed in the trial Court
on the question whether the electricity charges formed part
of the rent or not. For the first time, the appellate Court
took this point into consideration and held that the
electricity charges formed part of the rent. On the face of
it, there was no justification for accepting this new point
when it was not pleaded at all in the original application.
Further, even the rent note itself makes it clear that the
electricity charges could not possibly form part of the
rent. The rent note first mentions that the appellant is
taking on rent the premises “on a monthly rent of Rs. 20,
double of Rs. 10, for residential purposes, for a period of
five months commencing from 1st May, 1954.” There-after, the
rent note, as translated in the paper book, shows that there was a
further agreement as under :-
“I shall pay one month’s rent in advance and
shall remain paying rent every month in
advance. I shall not sub-let the entire or
any portion thereof. I shall pay the electric
charges separately. I shall not make any
alteration…….
The agreement to pay the electric charges was, thus,
separately mentioned. In Urdu, the language in which the
rent note was scribed, the word which has’ been translated
as chases was “Kiraya
It is because of the use of this word that the High Court
seems to have held that the electric charges payable were
part of the rent.’ It failed to notice that the clause
itself said that this amount in respect of electric charges
was to be paid separately. Further, this was not rent for
electric fittings, but was the amount payable in respect of
actual electric energy consumed in each ‘Month. The amount
due for consumption of ‘electricity each month could only be
known at the end of that month, while, under the earlier
clause of the agreement, the rent had to be paid
858
in advance. On the face of it, therefore, the electric
charges for a month could not possibly be paid with the
rent. These- electric charges could not, consequently form
part of the rent. The charges were further variable ‘and
would depend on the amount of electricity consumed. No
fixed amount was payable in respect of electricity charges.
If electric charges were to be held to be part of the rent,
it would lead to the inference that even the rent of the
building was variable and was different each month. In view
of these circumstances, it is clear that the District Judge
and the High Court went wrong in preceding on the basis that
the electric charges formed part of the rent and that non-
payment of electric charges due amounted to non-payment of
arrears of rent.
As we have mentioned earlier, the High Court followed the
decision of the same Court in the earlier case of Hari Ram
Jaggi(1). The High Court failed to notice that, in that
case, there was a fixed amount payable every month as
electric charges. We do not consider it necessary to
express any opinion whether, in such a case, the electric
charges could or could not form part of the rent. On the
face of it, where the electric charges are not fixed and
can only be ascertained at the end of each month, after the
electricity consumed is known, while the rent is payable in
advance, it is clear that the electric Charges cannot be
held to form part of the rent. That basis, on which that
earlier case was decided, does not, therefore, exist in the
present case.
The High Court has ‘accepted that the amount in deposit was
enough to cover arrears on rent, in case the electric
charges are not treated as part of the rent. On this
finding, the decision of the High Court upholding the order
of eviction cannot be justified. It, however, appears that
the District Judge had recorded another finding against the
tenant. According to the District Judge_, there was no
deposit or tender even of the amount of Rs. 469. In the
revision before the High Court, this finding, of the
District Judge was also assailed by the tenant. The High
Court did not examine the propriety or correctness of this
finding. Consequently, it is necessary that this aspect of
the case should be examined by the High Court.
As, a result, we set aside the order of the High Court
dismissing the revision, and hold that, in case there was a
proper deposit or tender of the sum of Rs. 469 by the
tenant, the tenant was not in arrears of rent and was not
liable to ejectment. The case will now go back to the High
Court for re-hearing of the revision on the question whether
this sum of Rs. 469 had been tendered or deposited in
accordance with law so as to satisfy the requirements of
section 13 of Act III of 1949. The costs of this appeal
will abide the result.
G. C. Case remanded. (1) [1966] PLR 431. 85 9