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2003 DIGILAW 488 (PNJ)

Mahesh Chand v. Amar Nath

2003-04-02

VIRENDER SINGH

body2003
Judgment Virender Singh, J. 1. Mahesh Chand petitioner herein is landlord. This petition is directed against the judgment of learned Appellate Authority, Gurgaon dated 16.2.1989 reversing the judgment of learned Rent Controller, Gurgaon dated 13.5.1987 vide which the fair rent of the shop was fixed at Rs. 68/- per month being operative from 10.8.1983. 2. The petitioner filed an application before the Rent Controller for fixation of fair rent of the shop situated near Bhuteshwar Mandir Chowk Basai Road, Gurgaon as a tenant on the monthly rent of Rs. 35/- and no fair rent has been determined. It was further averred that no rent deed was ever executed between the petitioner and the respondent and that the rent was agreed orally. It was then asserted that the construction of building of the said shop was completed after 31.12.1961 and the respondent-tenant has been occupying the same since 1963. It is also averred that the rent prevailing in the locality at that time for similar type of buildings was at least Rs. 300/- per month and his shop could also fetch more than Rs. 300/- per month. 3. The respondent tenant in his written statement admitted that the shop in question was taken by him at a monthly rent of Rs. 35/- but it was asserted that the rent deed was executed. The respondent denied that the construction of the building was completed after 31.12.1961 and that he was tenant in that shop since the year 1963. It was also alleged by the respondent that Rs. 35/- per month was the agreed between him and the previous landlord from whom the petitioner had purchased this property in August, 1980 and the petitioner was receiving the rent from the respondent at this agreed rate. It was then alleged that the prevailing rent of the similar type of buildings at that time was not more than Rs. 25/- per month and as such the petitioner was not entitled to the fixation of any fair rent as the same could not be more than Rs. 35/- per month. 4. The learned Rent Controller by detailed judgment dated 13.5.1987 returned the findings in favour of the landlord and fixed the fair rent at Rs. 68/- per month with the observation that the same shall be operative from the date of application i.e. from 10.8.1993. 35/- per month. 4. The learned Rent Controller by detailed judgment dated 13.5.1987 returned the findings in favour of the landlord and fixed the fair rent at Rs. 68/- per month with the observation that the same shall be operative from the date of application i.e. from 10.8.1993. Aggrieved with the said judgment, the respondent-tenant filed an appeal and the learned Appellate Authority reversed the finding of learned Rent Controller and held that Rs. 35/-, the rent which the respondent-tenant was already paying to the petitioner in fact is the fair rent. Hence, this revision petition by the petitioner-landlord. 5. I have heard Mr. Parmod Goyal, learned counsel for the petitioner and Mr. R.K.Jain, learned counsel for the respondent and with their assistance, I have also gone through the entire records of the case. 6. Mr. Goyal learned counsel for the petitioner has submitted that whole of the controversy in this case revolves around issue No. 1 as the learned Appellate Authority has also observed in its impugned judgment that in case the shop is proved to have been constructed after December 31, 1961 then the fair rent fixed by the learned Rent Controller would be taken to be correct. Mr. Goyal, thus, contends that the sole question that required determination is as to whether the demised premises was constructed on or before December 31, 1961 as this material question would clinch the matter. 7. Developing his case, Mr. Goyal has taken me through the impugned judgment and has submitted that the learned Appellate Authority has gone wrong in not taking into account the statements of Amar Nath respondent which were duly exhibited and proved as Exhs.A2 to A4. He further submitted that these statements are made on 27.10.1982, 22.8.83 and 21.8.84 respectively by the respondent in which he has stated that the building was constructed in the year 1962 and that the site plan was submitted for the construction of the said building on 16.4.62 by the Ram Chander Subedar and Umrao Kaur, the previous landlords. It is then submitted that it has also come in those statements that the respondent was staying as tenant since 1963. Mr. Goyal vehemently contends that there was no justification in rejecting the statements of the respondent by the learned Appellate Authority and submits that the judgment of the learned Rent Controller be affirmed. 8. On the other hand Mr. It is then submitted that it has also come in those statements that the respondent was staying as tenant since 1963. Mr. Goyal vehemently contends that there was no justification in rejecting the statements of the respondent by the learned Appellate Authority and submits that the judgment of the learned Rent Controller be affirmed. 8. On the other hand Mr. R.K.Jain, learned counsel for the respondent while refuting the arguments advanced by Mr. Goyal has submitted that the learned Appellate Authority has rightly rejected the claim of the petitioner for the fixation of the rent as the petitioner has not been able to lead cogent evidence on issue No. 1 to prove that the construction of the building of the shop was completed after 31.12.1961. He further submitted that in fact the construction of the shop was completed in 1958 and that the map of the construction was submitted by the owners to the Municipal Committee for the sanction of the same on 16.4.1962. Supporting the judgment of the learned Appellate Authority, Mr. Jain submits that the fair rent of the shop in question cannot be more than 35/- per month, the rent which the petitioner was already taking from the respondent being the agreed rent between the parties. 9. After hearing the rival contentions of both the sides, I am of the view that the petitioner must succeed. I have gone through the entire evidence once again. Mahesh, Chand has appeared as AW1. He has deposed that the building in question was constructed way back in the year 1962-63. He has further stated that this fact was disclosed to him by Bharat Pal etc. who had sold away the said building to him. I have also gone through the statements made by respondent-Amar Nath in a case filed by him before Deputy Commissioner alleging that the stamp papers used for the sale deed were deficient. In fact this was an enquiry in which respondent Amar Nath had stepped into witness box and made statements. From the statements one fact is apparently clear that the building of the shop was constructed in 1962 and he was a tenant in the said shop since the year 1963. In fact this was an enquiry in which respondent Amar Nath had stepped into witness box and made statements. From the statements one fact is apparently clear that the building of the shop was constructed in 1962 and he was a tenant in the said shop since the year 1963. No doubt the respondent has taken a stand that a Government Valuer had submitted a report before the Income Tax Department that the shop was constructed in the year 1958 but this fact by itself cannot advance the case of the respondent because the copy of the report of the valuer was not produced by the respondent. It was worth noticing here that R.S.Ranga who was examined as RW1, has made it clear that according to the report of the Government Valuer the building was constructed in the year 1963. This report, thus, supports the case of the petitioner. In my view the learned Appellate Authority has rejected the statements of respondent Exhs.A2 to A4 without any cogent reasoning. In my considered view there remain no doubt to the fact that the shop was constructed in the year 1962 and the respondent took the same on rent in the year 1963. The learned Rent Controller has, thus, rightly decided issue No. 1 in favour of the petitioner, I also affirm the same. 10. Once issue No. 1 stands decided in favour of the petitioner and it is held that the construction was after 31.12.1961, the provisions of Section 4(2)(b) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 would be applicable to the present case. 11. Admittedly, no rent deed has been executed between the parties. At the same time, there is no evidence to show that the shop was let out to the respondent for a fixed period. This being the situation, the respondent, thus, continues to be a tenant at the rate of Rs. 35/- per month and the same would be termed as agreed rent between the parties. For the purposes of fixation of the fair rent, the learned Rent Controller has taken into consideration all the aspects and keeping in view the All India Wholesale Price Index Number in the year 1963 and in the year 1982 came to the conclusion that 25% increase was justifiable on the basic rent of Rs. 35/- per month. Thus, the fair rent was fixed as Rs. 35/- per month. Thus, the fair rent was fixed as Rs. 35/- + Rs. 33/- = Rs. 68/-. As the application of the petitioner was moved in August 1983, the learned Rent Controller fixed the fair rent at the rate of Rs. 68/- per month being operative from 10.8.1983, I find no infirmity in fixation of the fair rent by the learned Rent Controller. 12. As a resume of the aforesaid discussion, the present revision petition is allowed, the impugned judgment of the learned Appellate Authority is set aside and that of the learned Rent Controller is maintained. The fair rent at the rate of Rs. 68/- per month being operative from 10.8.83 is hereby reaffirmed. 13. However, no circumstances have been set forth by the petitioner landlord for any upward modification of fair rent of the shop. The parties are left to bear their own cost.