JUDGMENT
Rajesh Tandon, J.
1. Heard Sri V.K. Kohli, Sr. Advocate, assisted by Sri I.P. Kohli, counsel for the revisionist and Sri Ramji Srivastava, counsel for the respondents.
2. By the present civil revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887, the revisionist has prayed for setting aside the order dated 08.08.2005 passed by the Addl. District Judge/6th F.T.C., Dehradun by which the decree for eviction, which has been refused, has been sought to be set aside.
3. Briefly stated, a suit was filed by the plaintiff-revisionist praying for the eviction of the defendant on the ground that he is the tenant of House No. H-194, Nehru Nagar Colony, Dehradun on a monthly rent of Rs. 600/-. In the plaint, :he plaintiff-revisionist has claimed the reliefs to the following effect:
(A) A decree for realization of Rs. 21,600/- on account of arrears of rent may very kindly be passed in favour of the plaintiff and against the defendant.
(B) A decree for realization if mesne profit from 25thMarch, 2003 at the rate of Rs. 1200/- per month till the possession of the property is delivered to the plaintiff, may very kindly be passed in favour of the plaintiff.
(C) A decree for possession of the property morefully described in the schedule, may very kindly be passed in favour of the plaintiff and against the defendant.
(D) A decree for realization of a sum of Rs. 1500/- as cost of notice may very kindly be passed in favour of plaintiff and against the defendant.
(E) Full cost of the suit may very kindly be granted in favour of the plaintiff.
(F) Any other relief to which the plaintiff is found entitled may very kindly be passed in favour of the plaintiff and against the defendant.
4. After sending the notice, which was duly served upon the defendant, the defendant has raised a plea that the rent was Rs. 100 per month and not Rs. 600/- per month and he has deposited the amount in accordance with the rate of rent i.e. Rs. 100 per month.
5. While deciding the suit, the Judge Small Cause Court has not given the definite findings with regard to the rate of rent. Some time it was stated that the rent was Rs. 300/- per month and some time that the rent was more than Rs. 100/- per month, however, no definite finding has been recorded. However, the suit was dismissed on the ground that in notice higher rent has been demanded.
6. In Gokaran Singh v. 1st Addl. District and Sessions Judge, Hardoi 2000(1) ARC Page 653, it has been held as under:
37. In view of the aforesaid discussions, three questions referred to Full Bench, are answered as under:
1. A notice of demand by which rent is demanded at higher rate than the correct rate, cannot be said to be invalid or mala-fide. On receipt of such notice of demand, the tenant is not absolved from his duty to comply with the said notice. He can, however, tender arrears of rent at the admitted rate to the landlord.
2. If the landlord has been refusing to accept the rent at correct rate and has been claiming rent at higher rate, the tenant as a consequence of landlord’s earlier refusal in past, deposited the rent in the Court under Section 30 and if thereafter landlord serves formal notice of demand again at the higher rate and expresses his willingness to accept the rent, the tenant after receipt of notice is under an obligation to tender the rent at least at the rate admitted to him to the landlord and has got no right to straight away deposit the same under Section 30(1) of the Act.
3. Initial burden of proof with regard to the existence of arrears of rent lies upon the landlord. Once said burden is discharged, the tenant will have to prove the payment of rent. Where the landlord and tenant both produce evidence with regard to the existence of arrears and payment of rent, the question of burden to proof looses its importance.
7. In view of the aforesaid, the matter is remitted to the Judge Small Cause Courts, who shall decide the case afresh in accordance with law on all issues within a period of four months from the date of presentation of the certified copy of the order. Both the parties shall have liberty to lead their respective evidence on all the issues.
8. Consequently, the revision is allowed. No order as to costs.