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2003 DIGILAW 1590 (PNJ)

Somatia Devi v. Shiv Dayal Daulat Ram Of Jaitu

2003-11-20

G.S.SINGHVI

body2003
Judgment G.S.Singhvi, J. 1. This revision is directed against judgment dated 13.10.1982 of Appellate Authority, Faridkot vide which it allowed Appeal No.18 of 1980 filed by respondent No. 1-M/s Shiv Dayal Daulat Ram and ordered ejectment of the petitioner and respondent No. 2. Smt. Durga Devi from the demised premises (room). 2. Respondent No. 1 filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for eviction of respondent No. 2 to whom the room was leased out, had not paid the rent at the rate of Rs. 14/- per month since 21.3.1973 and had sub-let the same to the petitioner without its consent. Respondent No. 2 did not appear to contest the application. In her written statement, the petitioner admitted that respondent No. 1 was the owner of the room but denied that the same was leased out to respondent No. 2. She averred that the room in question had been let out to her and she was continuously paying the rent. She averred that the rent due from 26.5.1979 was tendered alongwith interest and costs, but the representative of respondent No. 1 refused to accept the same by saying that she was not the tenant. She further averred that the previous application filed by respondent No. 1 had been dismissed and, therefore, the second application was not maintainable. Still further, she averred that respondent No. 2 was a lady of high status and could never live in a small kothri. The brothers of respondent No. 12 are leading doctors at Jaitu and her son is serving in England and, therefore, there was no occasion for her to take the small room on rent. The petitioner also questioned the very maintainability of the eviction application on the ground that Mohinder Partap was not competent to represent respondent No. 1. 3. On the pleadings of the parties, Rent Controller, Faridkot framed the following issues: "1. Whether the applicant is a firm registered under the Indian Partnership Act and the application of Mohinder Partap is competent? OPA 2. Whether the house in dispute was rented out by the applicant to Durga Devi respondent No. 1 and relationship of landlord and tenant existed between them? OPA 3. Whether respondent No. 1 is in arrears of rent as alleged? 4. Whether respondent No. 1 has sublet the premises, or otherwise transferred the same to respondent No. 2? 5. OPA 2. Whether the house in dispute was rented out by the applicant to Durga Devi respondent No. 1 and relationship of landlord and tenant existed between them? OPA 3. Whether respondent No. 1 is in arrears of rent as alleged? 4. Whether respondent No. 1 has sublet the premises, or otherwise transferred the same to respondent No. 2? 5. Whether respondent No. 2 is directly a tenant under the applicant? 6. Relief." 4. Respondent No. 1 examined Krishan Kant AW2 and Ram Rakha AW3 and produced Ex.A2 to prove that respondent No. 2 was the tenant. 5. The learned Rent Controller decided issue No. 1 in favour of respondent No. 1.He held that the firm was duly registered and being its partner, Shri Mohinder Partap was competent to file the application. On issue No. 2, the Rent Controller returned the finding that the petitioner was the tenant and she was always ready and willing to pay the rent due to respondent No. 1. He referred to receipt Ex.A2 dated 20.6.1972 allegedly given by respondent No. 2 to respondent No. 1 and discarded the same by assigning the following reasons: "A careful perusal of the arguments addressed and the evidence led, leads me to the conclusion that the story of the applicant, giving the premises on rent was not natural and convincing. The sole document on the basis of which the applicant claims his relationship of landlord and tenant was Ex.A2. This is actually not a receipt but a duplicate carbon copy of the same type of cash memo or credit memo dated 20.6.72 in landa script, the translation of the same was not filed. It is signed by one Durga Devi but if it was a receipt issued to Durga Devi on 20.6.72, there was no question of getting the same signed from her because she was the person paying the money and not receiving the same. Moreover, the applicant is a firm duly registered and it must be maintaining his accounts in due course of business. The applicant has himself admitted that they were maintaining account books in which the receipt of money entered but no such account books were produced to show that the rent up to 20.6.72 was received from Durga Devi and as per Ex.A2 rent up to 21,3.73 as alleged in the application was also paid by Durga Devi to the applicant. The applicant has himself admitted that they were maintaining account books in which the receipt of money entered but no such account books were produced to show that the rent up to 20.6.72 was received from Durga Devi and as per Ex.A2 rent up to 21,3.73 as alleged in the application was also paid by Durga Devi to the applicant. It was alleged that in the application, rent was paid to the applicant up to 31.3.73. No account books to show as to since when the rent was paid by Durga Devi was proved by the applicant. With the best possible type of evidence i.e. account books withheld. Moreover, Durga Devi respondents signatures on Ex.A2 were not proved because according to the applicant, the signatures were not obtained by him nor made in his presence and they were obtained by one of their boys but he did not know who was that boy. I, therefore, am of the considered opinion that it could not be said that Ex.A2 was signed by Durga Devi the relationship of landlord and tenant between the applicant and Durga Devi. Krishna Kant AW2 stated that he got the premises for Durga Devi while Ram Rakha AW3 says that the talk took place in his presence. Ram Rakha has stated that he has been appearing on behalf of the police in some cases. He also could not state who was in the neighbourhood in the premises in dispute. To me, it appears that Rakha Ram was a witness not worthy of credit and has been procured to make statement in the Court to help the applicant, I, therefore, am of the considered opinion that it was not established that Durga Devi was the tenant of the premises of which the applicant was the landlord. The issue is accordingly decided against the applicant." 6. On the basis of above finding, the learned Rent Controller held that respondent No. 2 was not tenant and, therefore, there was no question of her subletting the premises to the petitioner. He further held that the petitioner had tendered the rent which respondent No. 1 had refused to accept and, therefore, she could not be declared as a defaulter. 7. He further held that the petitioner had tendered the rent which respondent No. 1 had refused to accept and, therefore, she could not be declared as a defaulter. 7. The learned Appellate Authority reversed the finding recorded by the Rent Controller on issue No. 2 by observing that the signatures of Durga Devi on the carbon copy of receipt Ex.A2 were sufficient to prove that she was paying the rent. It also relied on the oral statements of Krishan Kant (AW2) who is said to have got the premises for respondent No. 2 and Rakha Ram (AW3) who was Pujari of the temple and held that respondent No. 2 was the tenant. Accordingly, the learned Appellate Authority, allowed the application by holding that respondent No. 2 had defaulted in payment of rent and had sublet the room to the petitioner. 8. I have heard Shri V.K. Kataria and carefully perused the record. In my opinion, the reasons assigned by the Appellate Authority for reversing the finding recorded by the Rent Controller on issue No. 2 are legally unsustainable and the impugned judgment is liable to be set aside. A look at Ex.A2 shows that it is not a rent receipt but a duplicate carbon copy of credit memo. It does bear the signatures of Durga Devi, but this by itself cannot lead to an interference that she was paying rent to respondent No. 1. The Rent Controller discarded this piece of evidence by observing that if it was a receipt issued to respondent No. 2, there was no question of her signing the same because she. was the person paying the money and not receiving the money. The Rent Controller further observed that the applicant (respondent No. 1 herein) is a duly registered firm and it must be maintaining the account in due course of business but no account book was produced to prove that respondent No. 2 had paid rent up to 20,3.1973. According to the Rent Controller, failure of the applicant to produce the evidence which was in its possession was sufficient to discard its plea of non-payment of rent by respondent No. 2. 9. According to the Rent Controller, failure of the applicant to produce the evidence which was in its possession was sufficient to discard its plea of non-payment of rent by respondent No. 2. 9. The Appellate Authority reversed the finding recorded by the Rent Controller by simply observing that the statements of two witnesses examined by respondent No. 1, one of whom was Pujari of the temple, and the other was instrumental in getting the premises let out to respondent No. 2 and receipt Ex.A2 were sufficient to prove that the premises had been let out to respondent No. 1. 10. In my opinion, the Appellate Authority committed a grave illegality by upsetting the well reasoned finding recorded by the Rent Controller ignoring the most crucial aspect of the case i.e. non-production of account books by respondent No. 1 from which it could be proved that respondent No. 2 had paid rent up to 20.3.1973. Respondent No. 1 did not offer any explanation before the Rent Controller and even before the Appellate Authority as to why the account books maintained by it in the normal course of business were not produced. However, the Appellate Authority over looked this lacuna and accepted the bald statements made by AW2 and AW3. Ex.A2, on which reliance has been placed by the Appellate Authority, cannot be treated as a rent receipt given by respondent No. 2 merely because the same bears her signatures. The impugned judgment is totally salient on the issue as to how respondent No. 2 could issue, receipt in respect of the rent paid by her. Moreover, as observed above, Ex.A2 is not a receipt, but is a carbon copy of some voucher signed by respondent No. 2 and the same could not have been relied upon for regarding a finding that respondent No. 2 was a tenant. 11. In the result, the revision petition is allowed. The judgment of the Appellate Authority is set aside and order dated 10.6.1980 passed by the Rent Controller, Faridkot is restored. Consequently, the application filed by respondent No. 1 for eviction of the petitioner shall stand dismissed.