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Allahabad High Court · body

2002 DIGILAW 934 (ALL)

DINESH CHANDRA v. MULAKH RAJ

2002-08-01

RAKESH TIWARI

body2002
RAKESH TIWARI, J. ( 1 ) HEARD the learned counsel for the parties and perused the records. ( 2 ) THE aforesaid revision has been filed challenging the validity and correctness of the judgment and decree dated 15. 4. 1987 passed by the Judge, Small Causes Court, Bijnor in J. S. C. C. Suit No. 10 of 1986. ( 3 ) THE aforesaid suit was filed by the respondents for recovery of arrears of rent and ejectment of the revisionist from the shop in question. It is alleged that the defendant did not pay the rent and taxes inspite of demand notice since October, 1980. ( 4 ) THE revisionist has contested the aforesaid suit and filed his written statement. It is alleged that he is a tenant of the shop in question since 3rd May, 1969. He states that he has paid rent regularly till February, 1986 and therefore, he is not a defaulter. ( 5 ) THE respondents case is that the suit was not maintainable under Section 20 (2) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as the defendant-applicant was in default of arrears of rent for more than four months. The Judge, small Causes Court decreed the suit and held that the defendant-revisionist has committed default in payment of rent of the shop in question and has directed him to vacate the shop within a month. ( 6 ) ACCORDING to the revisionist, the rent was paid by him regularly, but the endorsement on rent note was not made by the landlord as according to the landlord, it was lost in the year 1980 and was found in the year 1986. The judgment has been assailed on the ground that the court-below has recorded finding that the landlord could not keep silent for such a long period, when the rent was not paid regularly tp him. My attention has also been drawn to the statement given by P. W. 4 in which it has been stated that the rent note was lost. My attention has also been drawn to the statement given by P. W. 4 in which it has been stated that the rent note was lost. Admittedly, according to the own case of the revisionist, the rent note was lost, hence, there could be no question of any endorsement of rent on the rent note till 1986 and as such the finding of the court-below that there should have been an endorsement for valid tender of rent, is wholly Illegal and is liable to be set aside. ( 7 ) IT has been argued on behalf of the tenant that in the year 1985, the shop was divided into two parts by raising a wall and half of the shop was taken in the possession by the landlord and was given the same in the tenancy of one Panna Lal. In these circumstances, it has been argued that the question of arrears of rent, if it was at all there would not have been settled at that time. It is submitted that this aspect has not been considered by the court-below and the suit for recovery of rs. 4,500 and Rs. 125 per month rent was allowed. ( 8 ) LASTLY, it has been contended that the burden lay upon the landlord to prove the non-payment of rent and not upon the tenant to prove that he has paid the rent. In support of this contention, reliance has been placed on Kripa Dutt Bhatt v. Vth Additional District Judge, Bareilly, 1984 (2)ARC 259. ( 9 ) ADMITTEDLY, the rent note is said to have been lost in the year 1980. Prior to 1980, the landlord always made endorsement that the rent had been paid, but no receipt was ever asked for by the tenant after the year 1980 as the landlord could not issue the receipt or made endorsement on the rent note as the rent was not received, though there is a specific averment by the tenant that the rent was being paid after the year 1980. Since the landlord denied payment of rent by the tenant, hence negative evidence could not have been given by the landlord to the effect that no rent was being paid. The tenant ought to have, proved payment of rent by positive evidence. Since the landlord denied payment of rent by the tenant, hence negative evidence could not have been given by the landlord to the effect that no rent was being paid. The tenant ought to have, proved payment of rent by positive evidence. There is no material on the record to show that the tenant ever tendered the rent after 1980 and the same was refused by the landlord. ( 10 ) NOW dealing with the second contention, I find that half of the shop was given to one Panna lal, which was divided by means of a wall. Since the applicant-revisionist-tenant did not still pay the rent, a notice was given to the tenant to vacate the shop in question. If the rent has been settled at the time of division of the shop, the tenant-revisionist should have given evidence and file the agreement, as there was no settlement, the landlord had asked the tenant to vacate the shop. The amount for recovery was, therefore, rightly allowed. ( 11 ) THE third contention that burden of proof lay on the landlord, is wholly misconceived. It is settled law in the case of Kripa Dutt Bhatt v. VIth Additional District Judge, Bareilly, (supra) it has been held that the burden of proof of establish that tenant is in arrears of rent, lies on the landlord and it is not upon the tenant to prove that he has paid the rent. ( 12 ) THERE is no material on record to hold that the tenant was not a defaulter. There is no illegality or infirmity in the impugned order. ( 13 ) THE revision has no merits. The court below has not exercised its jurisdiction illegally with any material irregularity, as such the revision is dismissed. ( 14 ) THE revisionist is directed to hand over the possession of the shop in question to the landlord within a period of three months from today. .