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2003 DIGILAW 1385 (PNJ)

Amrit Sagar Kayshap v. Mohinder Singh

2003-10-08

S.S.SARON

body2003
Judgment S.S.Saron, J. 1. The landlord in this petition under Section 15(5) of the East Punjab Urban Restriction Act, 1949 the re in alter referred to as the Act) assails the legality of the order dated 28.1.1989 passed by the Appellate Authority, Chandigarh whereby the appeal of the petitioner against the order dated 21.8.1987 of the Rent Controller, Chandigarh seeking ejectment of the tenant-respondent has been dismissed. 2. The petitioner is the owner and landlord of Booth No. 41, Sector 11-D, Chandigarh. He filed a petition under Section 13 of the Act for the ejectment of the respondent from the said booth. It is alleged that the demised premises were let out to the respondent at a monthly rent of Rs. 450/- vide lease deed dated 18.11.1974. The rent was exclusive of water and electricity charges and was payable in advance by 7th of each month. It was agreed between the parties that, in case the respondent pays the said rent in advance by 7th of each month then a rebate of Rs. 60/- will be given for the said month and in the event of his failure to pay the same by the due date, the respondent shall pay Rs. 450/- per month. This rebate was applicable for the period of tenancy, that is, for 11 months. It is alleged that the respondent did not prove to be a good tenant and he did not pay the rent to the petitioner as agreed. The respondent was in arrears of rent since February, 1985 and a sum of Rs. 2,250/- had become due on that account, which he had not tendered to the petitioner despite repeated demands. On this ground, the respondent had made himself liable for eviction from the demised premises on account of non-payment of rent. 3. The respondent-tenant filed his written statement in which he look the stand that the petition is barred by the principles of res judicata and Section 14 of the Act, in view of the earlier decision between the parties in Rent Application No. 116 of 1973, decided by the Rent Controller, Chandigarh on 5.3.1977. The said order of the Rent Controller was confirmed by the Appellate Authority on 8.6.1978 in the Rent Appeal No. 44 of 1977. Besides, Civil Revision No. 2678 of 1978 was dismissed by this Court on 13.2.1979. The said order of the Rent Controller was confirmed by the Appellate Authority on 8.6.1978 in the Rent Appeal No. 44 of 1977. Besides, Civil Revision No. 2678 of 1978 was dismissed by this Court on 13.2.1979. The petitioner accepted the rent for the period from 1.2.1978 to 28.2.1979 amounting to Rs. 5,200/- at the rate of Rs. 400/- per month. It is also stated that earlier the petitioner had also preferred Rent Application No,34 of 11.12.1980/3.4.1982 which was decided by the Rent Controller on 24.9.1982. In the said petition, the petitioner had specifically claimed that the respondent was inducted as a tenant at a monthly rent of Rs. 400/-. In that petition, the petitioner had claimed the rent which was tendered at the rate of Rs. 400/- and the same was accepted by him. In the appeal which was decided by the Appellate Authority on 21.3.1984 the ate of rent was never agitated by the petitioner, It is also stated that the petitioner made a statement on oath on 20.2.1982 before the Rent Controller that the rate of rent in respect of the demised premises was Rs. 400/-. The petitioner had been accepting the rent out of court at the rate of Rs. 400/- per month under his signatures and the copies of these receipts were also submitted. Therefore it is contended that the rate of rent was never Rs. 450/- per month as is being claimed in the petition. As such the petitioner is estopped from agitating the rate of rent. Even otherwise, the petitioner had claimed rent before the Rent Controller at the rate of Rs. 400/-per month, in another petition which was tendered. Therefore, it is prayed that the petition be dismissed. 4. The petitioner filed his replication, to the written statement of the respondent in which he reiterated his assertions made in the -petition and denied those in the written statement. 5. On the pleadings of the parties, the learned Rent Controller framed the following issues. "1. What is the rate of rent? Onus on parties 2. Whether the respondent is in arrears of rent? OPA 3. Whether the petitioner is estopped by his act and conduct from filing the petition? OPR 4. Relief." 6. Learned Rent Controller in respect of issue No. I held that the rate of rent in respect of demised premises was Rs. 400/- per month and not Rs. 450/-. Whether the respondent is in arrears of rent? OPA 3. Whether the petitioner is estopped by his act and conduct from filing the petition? OPR 4. Relief." 6. Learned Rent Controller in respect of issue No. I held that the rate of rent in respect of demised premises was Rs. 400/- per month and not Rs. 450/-. In view of the tender of Rs. 3200/- as rent from February, 1985 to September, 1985 at the rate of Rs. 400/-pcr month including interest of Rs. 40/- and costs of Rs. 50/- was valid. It was held that present petition was neither barred by the principles of res judicata, nor was the petitioner estopped from filing this petition. Issues No. 3 and 4 were decided accordingly. In view of the findings on issue No. 1 and 2, the ejectment petition was dismissed on 21.8.1987. 7. The landlord-petitioner filed an appeal before the Appellate Authority which was dismissed on 28.1.1989. It is against the said order of the Appellate Authority that the present petition has been filed. 8. I have heard learned counsel for the parties and with their assistance perused the records of the case. 9. Shri Atul Kashyap, learned counsel appearing on behalf of the petitioner has contended that the Rent Controller and the Appellate Authority under the Act committed a material irregularity in deciding issues No. 1 and 2 against the petitioner. He has contended that from the evidence on record it is established that the rate of rent in respect of demised premises was Rs. 450/- per month. The petitioner at times received lesser rent of Rs. 400/- per month from the respondent and while accepting lesser rent, he declared that the fixed rate of rent would not be reduced. In fact, there is respondents own admission that the rent of the premises in question was Rs. 450/- per month. The documents Ex.P1 to P5 clearly show that the rate of rent of the demised premises was Rs. 450/- per month. These documents, it is staled have neither been considered nor discussed by the authorities and have been wrongly ignored. 10. Shri Amit Jhanji, Advocate appearing for the respondent however contends that the Rent" Controller and the Appellate Authority under the Act have recorded a firm finding of fact that the rate of rent in respect of the demised premises in Rs. 10. Shri Amit Jhanji, Advocate appearing for the respondent however contends that the Rent" Controller and the Appellate Authority under the Act have recorded a firm finding of fact that the rate of rent in respect of the demised premises in Rs. 450/- per month and the said finding is not liable to be interfered with in exercise of the revisional jurisdiction of this Court under Section 15(5) of the Act. 11. In order to appreciate the respective contentions of the parties, the provision of Section 13(2)(i) of the Act under which the eviction of the respondent sought may be noticed. The same reads as under:- 13. Eviction of tenants:- (1) XX XX XX (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf If the Controller, after giving the tenant a reasonable opportunity o!" showing cause against the application is satisfied. (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost-of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. (ii) to (v) x x x x x x the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not satisfied he shall make an order rejecting the application. Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate." 12. Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate." 12. In terms of the above provisions, a landlord who seeks to evict his tenant is to apply to the Rent Controller in that behalf and if the Rent Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last date of the month next following that for which the rent is payable, the Rent Controller may make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied he is to make an order rejecting the application. Therefore, for the ejectment of the tenant in terms of Section 13(2)(1)(i) of the Act, it is to be seen whether the tenant has not paid or tendered the rent due. In order to ascertain as to what is the rent due, the authorities below have held that rent due was at the rate of Rs. 400/- per month and the same was tendered on the first date of hearing. Therefore, in terms of the proviso to Section 13(2)(1)(i) of the Act, the tenant is deemed to have duly paid or tendered the rent within the lime indicated in Section 13(2)(1). 13. The contention of the learned counsel for the petitioner is that the documents Ex.P1 to P5 and other documents have not been considered may be noticed. Ex.P1 is Civil Writ Petition No. 2587 of 1977 filed by the petitioner against the Chief Commissioner, Union Territory, Chandigarh and the respondent. In the said petition in Para 4 it has been stated by the petitioner that the monthly rent of the demised premises was Rs. 450/- subject to terms and conditions of the lease deed dated 18.11.1974 which is attached as Annexure PI to the said petition. In terms of the lease deed also the rate of monthly rent of the demised premises is indicated as Rs. 450/-. 450/- subject to terms and conditions of the lease deed dated 18.11.1974 which is attached as Annexure PI to the said petition. In terms of the lease deed also the rate of monthly rent of the demised premises is indicated as Rs. 450/-. Ex.P-2 is the writ petition filed by Mohinder Singh, (respondent in the present case) i.e. Civil Writ Petition No. 3837 of 1977. In the said writ petition, it has been averred by the respondent that he had taken the demised premises from Amrit Sagar (the present petitioner) vide written agreement in the year 1974 al the rate of Rs. 450/- per month. Ex.P-3 is the reply filed by Mohinder Singh (respondent) to Civil Writ Petition No. 2587 of 1977 (Ex.P-1). In para 4 of the reply it is staled by Mohinder Singh (respondent) that he took the premises in dispute on rent at the rate of Rs. 450/- per month and executed the lease deed which, however, remained unregistered. Ex.P-4 is the order dated 8.6.1978 passed by the Appellate Authority under the Act in which the case set up by the present petitioner is that he had let out the premises in question at the rate of Rs. 450/- per month. Ex.P-5 is the written statement filed by Mohinder Singh (respondent) in which he admits para No. 4 of the petition filed by the Amrit Sagar Kashyap (petitioner) before the Rent Controller, Chandigarh. A reading of the documents P-1 to P-5 shows that the demised premises were on rent at the ate of Rs. 450/- per month. It is contended that the documents on record and particularly the lease deed which has been executed between the parties show that the rate of rent in respect of the demised premises was Rs. 450/- per month and not Rs. 400/-. The lease deed dated 18.11.1974 is on record as Annexure P-1 with Civil Writ Petition No. 2587 of 1977 (Ex.P-1) filed by the petitioner against the Chief Commissioner and Mohinder Singh (respondents). A reading of the said lease deed shows that the rate of monthly rent for the booth was Rs. 450/-. However, the said lease deed is an unregistered document and being an unregistered document the contents of the same cannot be read in evidence and can only be seen for the collateral purposes as to who is in possession of the demised premises. 450/-. However, the said lease deed is an unregistered document and being an unregistered document the contents of the same cannot be read in evidence and can only be seen for the collateral purposes as to who is in possession of the demised premises. The lease deed is for a period of 11 months and has been signed by the lessor and lessee. 14. As against the evidence of the petitioner the respondent has produced on record the receipts Ex.R-1 to R-8 to show the rent paid by Mohinder Singh (respondent) to the petitioner ranging for different periods and of various dates. The rent works out to Rs. 400/- per month. Besides, receipts Ex.R-9 to R-30 have been produced in which the petitioner has received rent in respect of the demised premises at the rate of Rs. 400/- only. Therefore, it is evident from the perusal of the said document which has been signed by the petitioner that the rent in respect of the demised premises was to the extent of Rs. 400/- per month. 15. In the circumstances and in view of the evidence and material on record, the Rent Controller and the Appellate Authority under the Act have reached at a finding of fact that the rate of rent of the demised premises is Rs. 400/- per month. The Appellate Authority in its order under revision dated 28.1.1989 has observed that the documents, which are legally proved and some of which are even admitted by the petitioner, clearly proved that the petitioner had been consistently describing the monthly rent of the demised premises at Rs. 400/- per month and at the same time giving receipt of the rent received from the respondent. On the basis of the documents it was concluded that the monthly rent of the demised premises was Rs. 400A and not Rs. 450/- per month. 16. The scope of revision under Section 15(5) of the Act is limited and this Court, in exercise of its revisional jurisdiction is not to re-appreciate the evidence and the material i on record and on that basis dislodge the concurrent findings of fact recorded by the lower authorities under the Act. The findings as reached by the lower authorities could have been reasonably arrived at and, therefore, the same warrant no interference by this Court. 17. The findings as reached by the lower authorities could have been reasonably arrived at and, therefore, the same warrant no interference by this Court. 17. For the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed.