Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Harbans Lal vs Joginder Singh on 3 August, 2000
Author: J S Khehar
Bench: J Khehar


JUDGMENT

J. S. Khehar, J.

1. It is not a matter a dispute that while letting out two shops to the petitioner-tenant, the landlord executed a rent-note, a copy of which has been placed on the file of the Rent Controller as Exhibit A1. It is also not a matter of dispute that in the aforesaid rent note (Exhibit A1), the petitioner-tenant besides accepting the liability to pay monthly rent, had also accepted the liability to pay committee-tax. One of the shops taken on rent was surrendered by the petitioner-tenant and now he is in possession of only one shop.

2. On account of the fact the petitioner-tenant had not rent as well as house tax, an ejectment application was filed by Joginder Singh, respondent-landlord against Harbans Lal, petitioner-tenant. In the aforesaid application, it was alleged that the petitioner-tenant had not paid rent w.e.f. 1.8.1993. It was also alleged that the petitioner-tenant was liable to pay house-tax w.e.f. 1988-89 upto 1996-97 as the same must be considered to be a component of the rent payable by the petitioner/tenant to the respondent – landlord.

3. The petitioner-tenant raised the defence that he was not liable to pay house tax. Accordingly, the petitioner rendered rent at agreed rate of Rs. 550/- per month form 1.8.1993 to 30.9.1996 on the first date of hearing. The house tax was, however, not deposited. The Rent Controller, vide an order darted 24.10.1998 accepted the ejectment application filed by the respondent-landlord and ordered ejectment of the petitioner-tenant from the premises. In doing so, the petitioner-tenant was required to hand over vacant possession to the respondent-landlord within a period of two months. Dissatisfied with the order of the Rent Controller, the petitioner-tenant preferred an appeal before the Appellate Authority. The appeal preferred by the petitioner-tenant was also dismissed on 1.9.1999. Dissatisfied with the orders of the Rent Controller as well as the Appellate Authority, the petitioner has approached this Court through the instant petition.

4. The first submission made by learned counsel for the petitioner is that he was not liable to pay house tax in view of the fact that the house tax had not specifically been mentioned in the rent note (Exhibit A1). It is the case of the petitioner-tenant that the rent note (Exhibit A1) referred to only committee-tax and since there was no committee tax payable, nor had the respondent-landlord claimed committee tax form the petitioner-tenant, he could not be ejected on account of non-payment of house-tax.

5. I have considered the aforesaid submission of the submission of the petitioner-tenant. So far as the payment of house-tax on the basis of rent note (Exhibit A1) is concerned, the aforesaid issue must be deemed to have been settled between the parties on the basis of the previous litigations between the parties. Reference was made to the order of the Rent Controller, wherein it was noticed that the respondent-landlord had earlier filed an ejectment application in 1991. In the said ejectment application, the Rent Controller vide an order dated 2.11.1993 had held the petitioner-tenant liable for payment of house tax on the basis of rent note (Exhibit A1). The order of the Rent Controller passed in furtherance of the aforesaid application is stated to have not been challenged by the petitioner-tenant and, therefore, for all intents and purposes he must be held to be bound by the determination of the Rent Controller. The aforesaid factual position, as expressed in the order of the Rent Controller, has not been disputed by the leaned counsel for the petitioner. There is, therefore, no question of re-evaluating an issue, which has attained finality between the same parties, of the basis on the same rent not (Exhibit A1).

6. Once it is held that the petitioner-tenant had to pay house tax, the question to be considered is whether the house tax payable is to be treated as a part and parcel of the rent payable by the petitioner-teanant to the respondent-landlord. The aforesaid proposition of law has been concluded by this Court in Smt Gita Devi v. The Financial Commissioner, Haryana and others, 1983 Punjab Law Reporter 389, wherein the question considered was whether a stipulation between the landlord and the tenant to pay house tax imposed by the Municipal Committee along with rent for the use and occupation of a premises would form part of the rent payable by the tenant. This Court in unambiguous terms held that the said tax forms a part of the rent payable by the tenant and in the absence of the tender of the same alongwith the arrears of monthly rent, the tender cannot be treated to be valid. The findings of the Rent Controller as also the appellate authority on the aforesaid legal proposition are in conformity with the decision referred to above. The aforesaid findings are accordingly affirmed.

7. Learned counsel for the petitioner submitted that even if it is accepted that the petitioner-tenant was liable to pay house tax, still the tender of rent before the Rent Controller could not be considered to be short. In this behalf, learned counsel for the petitioner submitted that according to the rent note (Exhibit A1), the rent was payable in advance, on or before the 15th day of every month. The ejectment application was filed on 2.9.1996. At the time of filing of the ejectment application, rent for the month of September 1996 had not become due to the respondent-landlord. As such arrears of rent claimed from 1.8.1993 were payable only upto 31.8.1996. However, while tendering rent, the petitioner had tendered rent upto 30.9.1996. If the rent tendered for the month of September 1996 is adjusted/apportioned towards the house tax payable, then the tender of arrears of rent made by the petitioner-tenant on the first date of hearing cannot be held to a short tender.

8. It is not a matter of dispute that the petitioner-tenant was liable to pay rent at the rate of Rs. 550/- per month. Even if the aforesaid submission of the learned counsel for the petitioner is accepted as correct, the amount which can be apportioned towards house-tax, would be rent for one month, i.e. September, 1996. Rent for the month of September, 1996 being Rs. 550/-, would be considered to be sufficient to discharge the liability of the petitioner-tenant towards arrears of house tax. In the aforesaid context, it would be pertinent to mention that the respondent-landlord in his ejectment application had claimed house-tax from 1988-89 upto 1996-97. The total arrears of the house tax claimed by the petitioner-tenant being far in excess of Rs. 550/- (excess tendered by the petitioner-tenant on the first date of hearing), I find no justification, whatsoever, in the instant submission of learned counsel for the petitioner-tenant. While it is true that the validity of the tender is to be examined in respect of the amount payable on the date of filing of ejectment application. If all that is due to the landlord has been paid, the tender would be deemed to be valid. In other words, the tender made on the first date of hearing, shorn of the particulars mentioned by the tenant, is to be evaluated on the basis of what was actually due to the landlord. The landlord had claimed house tax from the year 1988-89 to 1996-97. In this behalf, it was mentioned by the respondent-landlord in his ejectment application that he had paid house tax for the year 1988-89 at the rate of Rs. 486 and from the year 1989-96 to 1990-97 at the rate of Rs. 550/- per year. Consequently, even if the petitioner-tenant had tendered Rs. 550/- in excess of what was due to the respondent-landlord on account of rent, still such tender would be short as the house tax payable for the period in question was far in excess of Rs. 550/-. Consequently, even if there is adjustment/apportionment made in favour of the petitioner-tenant out of tendered rent on the first date of hearing, yet the tender would be short. For the aforesaid reasons, it is not possible for me even to accept the second submission of the learned counsel for the petitioner/tenant.

9. In continuation of the submission, referred to above, it was claimed by the petitioner-tenant that although the respondent-landlord had claimed house tax from 1988-89 to 1996-97, yet he was only called upon in law to deposit house tax for 1996-97. The house tax for 1996-97 being equal to the rent for the month of September 1999 he must be deemed to have tendered even house tax as demanded by the respondent-landlord. The pointed attention of this court, while addressing the instant submission, was invited to ground No. (ii) of para 2 of the ejectment application, which is reproduced hereunder:-

“That the respondent is also liable to pay house-tax since 1988-89 upto 1996-97. The house-tax for the year 1988-89 was Rs. 486/- and house-tax for the period of 1989-90 and 1996-97 has been paid by the applicant Rs. 550 per annum.”

10. It is submitted that while examining the aforesaid claim made by the respondent-landlord, the Rent Controller as well as the Appellate Authority arrived at the conclusion that in ejectment application filed by the respondent-landlord, prior to the instant ejectment application, he had already made a claim for house-tax upto 1991-92. The aforesaid claim for house tax upto 1991-92 cannot be subject matter of the claim in the instant ejectment application filed by the respondent-landlord. So far as the instant ejectment application is concerned, the claim can only be considered to be valid for the period from 1992-93 to 1996-97. The findings of the Courts below, which have not been controverted by the learned counsel for the petitioner/tenant, are that the liability of the petitioner-tenant towards house-tax for 1992-93 was Rs. 525/-, for 1993-94 was Rs. 525/-, whereas for 1994-95, it was Rs. 554/-, for 1995-96 it was Rs. 565/- for 1996-97 it was Rs. 554/-. The said claim (for the period from 1992-93 upto 1996-97) was also much more than the excess rent tendered on the first date of hearing. Thus viewed, I find no merit even in the instant plea raised by learned counsel for the petitioner-tenant.

11. Last of all, the question to be determined is whether the extract of ground No. 2 above can lead to the inference that the rent payable was only for the year 1996-97. In my considered view, if the ground extracted above is read as a whole, the claim made by the respondent is clear and unambiguous that no house tax has been paid by the petitioner-tenant from 1988-89 upto 1996-97 and that the house tax for the year 1988-89 was Rs. 486/- and thereafter from 1989-90 upto 1989-90 upto 1996-97 it was “Rs. 550/- per annum.”

12. It is not possible for me to accept the submission made by learned counsel for the petitioner-landlord that the claim made in the aforesaid ground must be deemed to be the claim only in respect of house-tax for the years 1988-89, 1989-90 and 1996-97. The respondent-landlord wishes this Court to accept that the surviving claim towards house tax would be only for the year 1996-97. This submission is made by excluding the claims for 1988-89 and 1989-90 as the said claims must be deemed to have been decided in furtherance of the ejectment application which had been filed by the respondent-landlord prior to the filing of the present ejectment application.

13. It would be unfair not to notice the decision in Sukhdev Raj v. Rukmani Devi and others, 1988,(1) RCR (Rent) 430 (P & H) (DB): 1988(1) Rent Law Reporter 667, relied upon by the petitioner-tenant to substantiate his claim. On the basis of the aforesaid determination by a Division Bench of this Court, it was Sough to be submitted that a party cannot be allowed to raise a plea not substantiated in his pleadings. There is absolutely no quarrel in the aforesaid determination of law, but in view of the facts and circumstances of the instant case, specially with reference to ground No. II, extracted above, it is not possible for this Court to accept the plea of the petitioner-tenant that there was no pleading in the ejectment application for claim of house-tax other than for the year 1996-97. The unambiguous claim on account of unpaid house-tax is for the period from 1988-89 upto 1996-97, although claim accepted by the Rent Controller and the Appellate Authority is only for the period from 1992-93 upto 1996-97. The tender made by the petitioner-tenant being short of the house-tax for the period from 1992-93 to 1996-97, the determination by the Rent Controller and the Appellate Authority cannot be held to be beyond the pleadings of the respondent-landlord. For the reasons recorded above, I find no merit in this petition. The same is accordingly dismissed.

No costs.

14. Petition dismissed.


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