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2000 DIGILAW 149 (PNJ)

Jagdish Rai Chandna v. Swaran Dass

2000-02-08

V.S.AGGARWAL

body2000
Judgment V.S.Aggarwal, J. 1. By this common judgment both the revision petitions, namely Civil Revision No. 143 and 1438 of 1997 can conveniently be dispose of together. 2. The relevant facts are that respondent Swaran Dass is the landlord. He had filed two petitions for eviction against the petitioner. The same had been consolidated. In the first petition for eviction, the respondent-landlord claimed that he requires the premises for his own occupation and has no other residential accommodation available. He was employed in the office of State Bank of India and was lastly posted at Delhi. He retired in February, 1983. All his relatives are at Panipat and, therefore, he intends to settle at Panipat. It was asserted that petitioner has not paid the arrears of rent from February, 1986 at the rate of Rs.375/- P.M. besides house tax, water and electricity charges. In the second petition for eviction two grounds of eviction were taken in addition to what has been referred above. The same do not survive for consideration and were that petitioner has impaired the value and utility of the premises and is a nuisance to the locality. The petitioner has contested the eviction petitions. It was not disputed that agreed rent is Rs.375/- P.M. including house tax. The water tax and electricity charges are being paid directly by him to the authorities. The liability to pay the house tax was denied. Plea was raised that whole house had been let to the petitioner but later the respondent-landlord on 23.9.1984 illegally occupied a portion of it. It was denied that the respondent bona fide required the suit premises at Panipat. After retirement the respondent is doing business in Delhi where he is residing. Similarly, the second petition for eviction was contested. 3. The learned Rent Controller passed the order of eviction on the ground that the respondent-landlord does require the property for himself and members of his family. He intends to shift to Panipat. However, with respect to ground of non payment of rent, it was concluded that the petitioner had not tendered the entire arrears of rent on the first date of hearing. Accordingly, on both the grounds, the order of eviction was passed. Aggrieved by the same, the petitioner preferred two appeals while the respondent preferred cross objections. However, with respect to ground of non payment of rent, it was concluded that the petitioner had not tendered the entire arrears of rent on the first date of hearing. Accordingly, on both the grounds, the order of eviction was passed. Aggrieved by the same, the petitioner preferred two appeals while the respondent preferred cross objections. The learned Appellate Authority approved the findings of the learned Rent Controller regarding the ground of non payment of rent but set aside the findings and instead dismissed the petition on the ground that the respondent requires the property for himself. Aggrieved by the said orders of eviction, the present revision petitions have been filed. 4. At the outset learned counsel for the petitioner urged that since the Appellate Authority is creation of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and no cross objections are specifically prescribed under the provisions of that Act, the Appellate Authority was in error in allowing the cross objections to be filed. He strongly relied upon the Full Bench decision of this Court in the case of Daya Chand Hardayal v. Bir Chand (1983)85 P.L.R. 775 (F.B.), it was held:- "The issue can also be viewed from another angle. As would appear from the above, the clear and firm intention in Section 15 seems to be that it does not make any and every order of the Controller as appealable. The powers to determine the classes of cases in which an appeal may lie and the forums in which they are to be filed have been vested in the State Government. If the words "an order" used in the later part of section 15 are to be construed as "any order" then it would plainly conflict with the opening part of Section 15 whereby the State Government alone prescribes classes of cases in which the appeals are to be provided, it would be farcical and contradictory to assume that section 15 makes any and every order appealable, but nevertheless an authority subordinate to the legislature, namely, the State Government may take away that right and prescribe that an appeal would lie only with regard to a limited classes of cases and not in others." Indeed in this regard reference can well be to the other provisions of the Act. As noted by the Full Bench of this court, Section 15 permits any person aggrieved by the order passed by the controller to prefer an appeal to the Appellate Authority. That being the position, the appeal as such can only by filed by an aggrieved person. But there is no specific bar under the provisions of the said Act in preferring the cross objection. Cross objection strictly is not an appeal. In the present case as already pointed, the learned Rent Controller had passed an order of eviction on the ground of non payments of rent and on the ground that the respondent requires the premises. Cross objections are filed simply to point that the order of eviction was also liable to be passed on another ground and to support the order on that count. Since there is no specified bar in filing of the cross objections and only appeal had been prescribed that can be dined under the specific provision, it cannot be termed that cross objections were not maintainable. 5 Reverting back to the merit of the other ground which found favour with the learned Appellant Authority, certain basic facts that transpired cannot be ignored. The respondent-landlord was serving at Delhi and admittedly retired in the year 1983. He continued to live at Delhi and did not care to file the petition for eviction earlier. If he was keen to live with his relatives who are residing at Panipat, he could certainly file the petition immediately. He did not do so. This by itself reflects that the requirement of the respondent was not bona fide. Otherwise also one room was lying vacant in the house at Panipat. But the respondent-landlord were working at Delhi. It is the cumulative effect of all the factors that the Courts has to see if the requirement of the landlord is bona fide of not. The landlord is the best judge of his requirement and ordinarily the court will not interfere. Once it transpired that he is continuously living at Delhi, his sudden desire to live with his kith and kin is not understandable. Therefore, it must follow that in the peculiar facts, the respondent-landlord did not bona fide requires that property. The findings of the Appellate Authority in this regard must be approved. 6. Once it transpired that he is continuously living at Delhi, his sudden desire to live with his kith and kin is not understandable. Therefore, it must follow that in the peculiar facts, the respondent-landlord did not bona fide requires that property. The findings of the Appellate Authority in this regard must be approved. 6. With respect to the grounds of non payment of rent, the main controversy was as to whether on the first date of hearing the entire arrears of rent had been tendered or not. At the time when the tender of the rent was made, on behalf of the petitioner a statement had been made on 6.1.1989 that he has already sent a sum of Rs.6,500/- vide four bank drafts namely 3 of Rs. 1500/- each and one of Rs.2,000/- and tendered the balance amount of Rs.4,750/- alongwith interest and costs. The said amount was accepted under protest and it had been stated that it was insufficient. 7. In this Court, the controversy was as to if the payments had been made by bank drafts or not. On behalf of the respondent, it was pointed that three bank drafts had been received but not the fourth. It is not in controversy that if payment with respect to fourth draft has not been made. The tender would be deficient. 8. Learned counsel for the petitioner urged that the amount had been accepted and when the same was accepted, it had not been stated that all the four drafts had not been received. According to him it should be inferred that the payments by bank drafts had been received. The said contention, however, is totally devoid of any merit. If the rent had been accepted under protest and it had been stated that it is deficient, detail statement need not be made. It cannot be stated that full amount has been paid. 9. While the petitioner asserted that all the four drafts had been sent and accepted, he fell shy of producing the bank statement to show that all the four drafts had been received by the respondent-landlord. The onus lay heavily on the petitioner to prove all the payments. He failed to discharge the same. During the course of evidence, he stated that accounts have not been produced, the best evidence to indicate that the payment had been made is missing. The onus lay heavily on the petitioner to prove all the payments. He failed to discharge the same. During the course of evidence, he stated that accounts have not been produced, the best evidence to indicate that the payment had been made is missing. In this regard thus the evidence of the petitioner was rightly ignored because he did not, establish that the payment of four drafts had been made. The findings of fact in this regard did not require interference. Therefore, the order of eviction was rightly passed. 10. For these reasons, the revision petitions being without merits must fail and are dismissed. The petitioner is granted three months; time to vacate the premises.