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2003 DIGILAW 764 (PNJ)

Nathu Lal v. Mangat Ram

2003-05-21

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity, `the Act) is directed against the order dated 23.5.1984 passed by the Appellate Authority, Sirsa directing the ejecting of the tenant-petitioner on the sole ground of non-payment of rent. On the issue of non-payment of rent, the Appellate Authority reversed the findings of the Rent Controller recorded in his judgment dated 10.8.1982 holding that the tenant-petitioner was not in arrears of rent and had paid the full rent. 2. Brief facts of the case are that the tenant-petitioner was inducted as a tenant by the landlord-respondent vide rent note dated 3.5.1973 Ex.P1 at a monthly rent of Rs. 100/- p.m. According to the stipulation in the rent note, the rent was to be paid in advance. On the ground that the tenant-petitioner has failed to make payment of rent from 3.8.1976 till 7.8.1979 i.e. the date of filing the ejectment petition, the tenant-petitioner sought ejectment of the tenant-petitioner under Section 13(2) of the Act. It was further claimed that as no fair rent of the demised premises has been fixed, an amount of Rs. 3600/- on account of rent with interest, costs and house tax was due to the landlord-respondent. The Rent Controller on the basis of evidence adduced by the parties came to the conclusion that two last entries B1 and B2 in the note-book maintained for payment of rent, have been got proved by the tenant- petitioner. Those entries show payment at the rate of Rs. 100/- p.m. on 3.6.1979, 3.7.1979 and 3.8.1979. In support of the conclusion, the Rent Controller relied on the report of the handwriting expert Diwan K.S. Puri who was examined as RW2. It was on the basis of aforementioned evidence coupled with the statement made by the tenant-petitioner as RW1 that the Rent Controller accepted the entire payment of rent was made to the landlord- respondent and there was no arrears of rent to be paid by the tenant- petitioner. 3. On the aforementioned issue, the learned Appellate Authority reversed the findings holding that if all the entries made in the note-book including B1 and B2 are accepted, even then the total amount paid by the tenant-petitioner is Rs. 3205/-, whereas the total amount payable was Rs. 3. On the aforementioned issue, the learned Appellate Authority reversed the findings holding that if all the entries made in the note-book including B1 and B2 are accepted, even then the total amount paid by the tenant-petitioner is Rs. 3205/-, whereas the total amount payable was Rs. 3,600/- for a period of three years at the rate of Rs. 100/- p.m. i.e. from 3.8.1976 to 3.8.1979. The aforementioned calculation has been made by excluding the element of house tax, interest and costs. The Appellate Authority opined that only three receipts would be deemed to have been proved in accordance with law because with regard to other receipts neither the scribe had been produced nor those are signed which could have been verified by the expert. Therefore, the tenant-petitioner was found to be in arrears of rent. The findings recorded by the Appellate Authority read as under :- ".......Admittedly the monthly rent is Rs. 100/- but the entries prior to 3.6.78 do not show payment of Rs. 100/- as rent by Nathu Lal respondent. During the months of 3.8.76, 3.9.76, 3.10.76, 3.11.76, 3.12.76, the entries in the Note-book show payment of Rs. 85/- per month by Nathu Lal respondent and there-after from the months of 4.1.77 to 3.5.78 entries referred to above show payment of Rs. 80/- P.M. only. In this way as already mentioned above the total amount shown to have been paid during this period from 3.8.76 to 3.8.79 through these entries comes to Rs. 3205/- as against the arrears of Rs. 3600/- for the aforesaid period. xx xx xx xx xx xx Even if for arguments sake these entries are taken into consideration, as already mentioned above, the total amount of all these entries for the period from 3.8.76 to 3.8.79 comes to Rs. 3205/- as against Rs. 3600/- which amount will be due for three years at the rate of Rs. 100/- P.M. i.e. from 3.8.76 to 3.8.79 and because according to rent note Ex.P.1 dated 3.5.73 the rent was payable in advance. Even if the amount of Rs. 100/- as rent; Rs. 10/- as house tax and Rs. 3205/- as against Rs. 3600/- which amount will be due for three years at the rate of Rs. 100/- P.M. i.e. from 3.8.76 to 3.8.79 and because according to rent note Ex.P.1 dated 3.5.73 the rent was payable in advance. Even if the amount of Rs. 100/- as rent; Rs. 10/- as house tax and Rs. 8/- as interest tendered by the respondent in court for the period from 3.8.79 to 2.9.79, which rent was, however, not yet due on the date of petition i.e. on 7.8.79, is adjusted towards the arrears of rent for the period from 3.8.76 to 3.8.79, still the respondent will not be deemed to have cleared the arrears of rent due upto 3.8.79 on the first date of hearing i.e. 27.10.79, because the total amount in that way comes to Rs. 3323/- as against Rs. 3600/-. I do not find any force in the submission of the learned counsel for Nathu Lal since last payment on 3.8.79 has been proved, so previous payments will be deemed to have been made by him, firstly because his view is not supported by any authority, as none has been produced except for making a reference to an authority mentioned at page 2 of the written arguments, and secondly the circumstance discussed above themselves negative the payment of previous amounts to Parma Nand." 4. Dr. Gurmit Singh, learned counsel for the tenant-petitioner has argued that presumption of payment of rent in respect of previous period would come into existence in favour of the tenant-petitioner once he has proved the payment of rent in respect of the periods 3.6.1979, 3.7.1979 and 3.8.1979. According to the learned counsel under Section 114 of the Indian Evidence Act, 1872 once the last payment is shown to have been made, the payment in respect of the earlier period should be presumed to have been made. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Agya Pal Singh v. Basant Kaur, 1987(2) RCR 325 and Nirmala Wati v. Ved Parkash, 1999(2) RCR 266 and argued that in both these cases such a presumption was raised and benefit was given to the tenant by holding that once payment of subsequent years is shown to be made then the payment of preceding months is presumed to be made. The learned counsel has further argued that in any case in view of the law laid down in Rakesh Wadhawan & Ors. v. Jagdamba Industrial Corporation & Ors., 2002(2) PLR 370 : 2002(1) RCR (Rent) 514 (SC) the tenant-petitioner deserves to be granted another opportunity and the judgment of the Supreme Court obliges the Rent Controller to calculate the rent and then grant opportunity to the tenant by passing a conditional assessment order. The learned counsel has further pointed out that a reference in the case of Joginder Singh v. Kuldip Chand, 2003(1) RCR 156 has been made to the larger Bench of this Court to resolve the conflict between two judgments of the Supreme Court in the case of M/s Rubber House v. M/s Excelsior Needle Industries Pvt. Ltd., 1989(2) RCR 530 and Rakesh Wadhawan (supra). 5. Mr. Ashok Verma, learned counsel for the landlord-respondents has argued that even if the whole note-book with all entries is taken into consideration, the tenant-petitioner is still in arrears of rent as has been found by the Appellate Authority. The learned counsel has further pointed out that on 13.10.1979 the arrears were assessed and the total amount payable was Rs. 4457.40 which included rent, house tax, interest and costs. The break up is given in the order which reads as under :- 1. Rent for 3.8.76 to 2.8.79, @ Rs. 100/- P.M. 3600-00 2. House tax 360-00 3. Interest 457-00 4. Costs 00-40 Total 4457-40 6. Learned counsel has further urged that during the proceedings before the Rent Controller an opportunity was afforded to the tenant-petitioner to deposit the arrears of rent as assessed vide order dated 13.10.1979. However, Shri Devi Lal, Advocate representing the tenant-petitioner had made the following statement which if translated reads as under : "Stated that rent @ Rs. 100/- p.m. from 3.8.1976 to 3.8.1979 has already been paid. Therefore, the rent is not payable. My client is not bound to pay the house tax according to the terms of the rent note. Therefore, rent and house tax from 3.8.1976 to 3.8.1979 @ Rs. 100/- p.m., interest of Rs. 8/-, expenditure of Rs. 40/- and house tax of Rs. 10/-, the total of which comes to Rs. 158/- is being tendered. The same be paid to the landlord-respondent." 7. The afore-mentioned tender was accepted by Shri O.P. Bansal, counsel for the landlord-respondent being a short tender under protest. 100/- p.m., interest of Rs. 8/-, expenditure of Rs. 40/- and house tax of Rs. 10/-, the total of which comes to Rs. 158/- is being tendered. The same be paid to the landlord-respondent." 7. The afore-mentioned tender was accepted by Shri O.P. Bansal, counsel for the landlord-respondent being a short tender under protest. 8. Having heard the learned counsel for the parties and perusing the judgments of both the Courts below alongwith record, I am of the considered opinion that no legal infirmity could be found in the judgment of the learned appellate Authority. It will be absolutely clear if all the entries made in the note book, maintained for keeping account of the rent paid by the tenant-petitioner and as placed on record by him, are perused even then the tenant-petitioner is in arrears of rent. In such a situation, no presumption under Section 114 of the Indian Evidence Act, 1872 could be raised merely because the tenant- petitioner has proved on record entries B1 and B2 which shows payment of rent in respect of the period 3.6.1979, 3.7.1979 and 3.8.1979. On the ground that these rent payments are proved and the payment of rent earlier to those dates should be deemed to have been made. No such presumption would be available to the tenant-petitioner especially when the claim has been made for payment of arrears of rent w.e.f. 4.8.1976 till the date of filing of the ejectment petition i.e. 3.8.1979. Moreover, the tenant-petitioner has been able to prove the signatures of the landlord-respondent only on three entries B1 and B2 which represent the payment of rent for the periods 3.6.1979, 3.7.1979 and 3.8.1979. The presumption, if any, stands completely rebutted once the Appellate Authority has examined all the entries which have been rejected on the ground that those entries are at variance with the terms of the rent note as the rent recorded to have been paid as such is Rs. 100/-. No explanation has been afforded for those entries. Still further, none of those entries are signed by the landlord-respondent. It is also pertinent to mention that the tenant-petitioner cannot claim that the whole payment of rent has been made because presuming all entries to be correct in the note book maintained for payment of rent even then the total amount payable to the landlord-respondent comes to Rs. 3600/- and the total amount paid is Rs. It is also pertinent to mention that the tenant-petitioner cannot claim that the whole payment of rent has been made because presuming all entries to be correct in the note book maintained for payment of rent even then the total amount payable to the landlord-respondent comes to Rs. 3600/- and the total amount paid is Rs. 3323/- which is excluding payment of interest, house tax and costs. 9. Another aspect which requires to be highlighted in the instant case is that on 13.10.1979, the learned Rent Controller made the calculations by giving the break up of arrears and the total calculated amount is Rs. 4457-40. Thereafter, the case was adjourned to 27.10.1979 by the learned Rent Controller granting two weeks time to the tenant-petitioner for making of tender. On 27.10.1979, a sum of Rs. 158/- was tendered by the tenant- petitioner by taking the stand that rest of the amount is not payable and had already been paid. The tender amount by the tenant-petitioner was accepted by the landlord-respondent under protest. Therefore, I do not find any legal infirmity in the approach adopted by the learned Appellate Authority because the ratio of the judgment in Rakesh Wadhawans case (supra) has been complied with. 10. The argument of Dr. Gurmit Singh based on the judgements in the case of Agya Pal Singh (supra) and Nirmala Watis case (supra) does not deserve to be accepted because those judgments are not applicable to the facts of the present case because in those cases the payment of rent was proved by producing receipt in respect of the later period which led the Court to infer that rent in respect of the earlier period must have been paid. However, in the present case, receipts in respect of the whole period have been produced i.e. from 3.8.1976 till 7.8.1979 but only payment in respect of three months i.e. 3.6.1979, 3.7.1979 and 3.8.1979 has been proved by producing an expert who has opined that at portions B1 and B2 the landlord-respondent has signed in token of receipt of rent. The earlier entries made in the note book firstly do not reflect the signature and moreover, if presumed to be correct do not lead to the conclusion that the tenant-petitioner has paid the rent due to the landlord-respondent. Therefore, those judgments are not applicable to the facts of the present case. 11. The earlier entries made in the note book firstly do not reflect the signature and moreover, if presumed to be correct do not lead to the conclusion that the tenant-petitioner has paid the rent due to the landlord-respondent. Therefore, those judgments are not applicable to the facts of the present case. 11. The other argument that the judgment in Rakesh Wadhawans case (supra) should now be followed by affording an opportunity to the tenant-petitioner to deposit the deficient rent cannot be accepted merely because this Court in Joginder Singhs case (supra) has made reference to the Divisions Bench judgment for reconciling the views of the Supreme Court in the case of Rakesh Wadhawan (supra) and M/s Rubber Houses case (supra). In the instant case, vide order dated 13.10.1979 an opportunity was given for tendering all the arrears of rent to the tenant-petitioner and the case was adjourned for that purpose to 27.10.1979. The tenant-petitioner failed to avail the opportunity. I do not feel persuaded to accept the contention that this Court should wait till reference in Joginder Singhs case (supra) is answered. Therefore, this contention of the learned counsel for the tenant-petitioner is also rejected. For the reasons recorded above this petition fails and the same is dismissed. However, the tenant-petitioner is given four months time to hand over the vacant possession of the demised premises to the landlord-respondent.