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2003 DIGILAW 1384 (PNJ)

Karam Chand (Died) Through Lrs. v. Piare Lal

2003-10-08

HARJIT SINGH BEDI

body2003
Judgment H.S.Bedi, J. 1. This is a revision petition at the instance of Karam Chand tenant against the concurrent findings recorded by the Rent Controller and the Appellate Authority ordering his ejectment under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred the Act). 2. The facts of the case arc that Karam Chand, the tenant, was occupying the premises situated in Kashmiri Bazar. Hoshiarpur on rent of Rs. 90/- per month. Piare Lal respondent-landlord filed an eviction application under Section 13 of the Act before the Rent Controller praying that the arrears of rent for the months of December, 1982 and for the period February, 1985 to April, 1985 plus house tax was payable by the tenant. The tenant resisted the application, but at the same time tendered the arrears of rent along with house tax in the Court on the first date of hearing and also filed the written statement alleging that he had already paid the rent for the month of December, 1982 and as such he was not liable to be evicted from the premises in dispute on that account. 3. In view of the pleadings of the parties, the Rent Controller framed the following issues:- 1. Whether the respondent has paid the rent for the month of December, 1982, if so, its effect? O.P.R. 2. Relief. 4. Under issue No. 1, the Rent Controller held that it had not been proved that the rent for the month of December, 1982 had been paid and as such the tenant was liable to be evicted. The appeal field by the tenant too was dismissed on the same premises. 5. The present revision, petition has been filed against the aforesaid orders. 6. It has been argued by Mr. M.S. Kang, the learned counsel for the petitioner that the second application insofar as it dealt with the recovery of the rent for the month of December. 1982 was barred by the principles given in Order 2 Rule of the Code of Civil Procedure. 6. It has been argued by Mr. M.S. Kang, the learned counsel for the petitioner that the second application insofar as it dealt with the recovery of the rent for the month of December. 1982 was barred by the principles given in Order 2 Rule of the Code of Civil Procedure. For elaborating his argument, he has pointed out that the landlord had earlier field an eviction application against the tenant on 11.5.1984 claiming that the rent form 3.5.1983 to 11.5.1984 had not been paid and the said application had been dismissed on the ground that the rent had in fact been paid and it was thus not open to the landlord to claim the arrears of rent for the month of December, 1982 as the presumption was that its demand had been waived by the landlord. He has also urged in the alternative that the onus was on the landlord to prove that the rent had in fact not been paid for the month of December, 1982 and that there being no evidence on record to prove this fact, the eviction application was liable to be dismissed on this ground also. 7. I have heard the learned counsel for the petitioner and have also gone through the orders of the Rent Controller and the Appellate Authority. 8. I find no merit in this petition. Admittedly the eviction application on the ground of non-payment of rent for the period 3.5.1983 to 11.5.1984 had been dismissed. Admittedly the present application pertains to a period prior to 3.5.1983 i.e., December 1982. In the written statement filed in the present proceedings, the tenant had taken a positive stand that the rent for the month of December, 1982 had been paid. The Rent Controller and the Appellate Authority have, however, given a finding of fact that as the entire rent due from the tenant to the landlord was being deposited in Court under Section 31 of the Relief Indebtedness Act. It would have been easy for the tenant to have produced the requisite challan or the treasury receipts to prove that in fact the rent had been paid and as these documents were not forthcoming and no evidence from the treasury had also been produced, the presumption was that the rent for the month of December, 1982 had not been paid. It is also clear from the issues that have been framed in the present proceedings that the onus to prove the payment of rent lay on the tenant. Mr. Kangs argument, therefore, that it was for the landlord to prove in the negative that he had not received the rent is not open to him. 9. In the light of what has been held above, I am of the opinion that the mere fact that the rent for the month of December, 1982 had not been claimed in the earlier eviction application would not preclude the landlord from making an application at a sub sequent stage. The revision petition is accordingly dismissed. As the respondent despite service remains un-represented before me today, a copy of this order be sent to him free of cost under registered cover.