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Punjab High Court · body

2007 DIGILAW 2037 (PNJ)

Meena Rani v. Sham Lal

2007-11-21

HEMANT GUPTA

body2007
Judgment Hemant Gupta, J. 1. The landlady is in revision aggrieved against the order passed by the learned Appellate Authority dismissing her eviction petition filed on the ground of non payment of the arrears of rent @ Rs. 20,000/- per annum. 2. The petitioner sought the ejectment of the tenants on the ground that she has purchased the shop on 26.05.1986 by way of two separate sales deeds from Mahesh Chand son of Hardawari Lal. The same was let out to the tenants at the rent of Rs. 20,000/- p.a. for one year from 01.07.1986, but the respondent has not paid the rent and therefore, the tenant is liable to be evicted for non payment of the arrears of rent @ Rs. 20,000/- per annum from 01.07.1986 to 31.12.1987. 3. In reply, the tenant has taken up a stand that the shop was let out to the tenant at the rent of Rs. 6,000/- per annum. The tenant denied that the same was let out at the rent of Rs. 20,000/- per annum. It was also pleaded that the rent @ Rs. 6,000/- per annum has been tendered on the first date of hearing before the learned Rent Controller and, therefore, the ejectment petition is liable to be dismissed. 4. In replication, the landlady has denied that the rate of rent was Rs. 6,000/- per annum but, it was pointed out that earlier the shop was let out to the firm M/s Jiwan Lal Vijay Kumar at the rent of Rs. 13,500/- per annum by Mahesh Chand, the previous landlord. At the time the size of the shop was 16 x 35 feet whereas the shop let out to the tenant is of 16 x 50 feet. It was alleged that there is no question of the rent of the demised shop being Rs. 6,000/- per annum. Thus, it was alleged that the tender made by the tenant on the first date of hearing is insufficient and consequently, the tenant is liable to be evicted. 5. In evidence, the landlady produced Rent Note dated 07.05.1984 Exhibit A. 2, executed by Jiwan Lal in favour of Mahesh Chand agreeing to pay the rent @ Rs. 13,500/- per annum, in respect of the shop measuring 16 x 35 feet. 5. In evidence, the landlady produced Rent Note dated 07.05.1984 Exhibit A. 2, executed by Jiwan Lal in favour of Mahesh Chand agreeing to pay the rent @ Rs. 13,500/- per annum, in respect of the shop measuring 16 x 35 feet. The landlady also produced the Income Tax return of the firm M/s Jiwan Lal Vijay Kumar for the Assessment Year 1985-86 i.e. the Financial year ending on 31.03.1985, which is Exhibit AX/1 wherein in the profit and loss account, an amount of Rs. 14,140/- has been reflected as the rent paid of the premises. The landlady has also produced statement of Gurbachan Singh, Tax Assistant, Income Tax Office examined as AW 1 in a suit for dissolution of partnership of the firm M/s Jiwan Lal Vijay Kumar. Apart from the said documentary evidence, the landlady examined her attorney i.e. her husband Raman Kumar as AW1, AW2 Kulbhushan Gupta, Brinda Ban Shori, Deed Writer, as AW3 and Jiwan Lal as AW4. To rebut such evidence of the landlady, the tenant examined Dev Raj, Clerk Municipal Council, as RW1 and Pawan Kumar as RW2. The tenants Sham Lal and Vijay Kumar, have appeared as their own witnesses as RW3 and RW4, respectively. 6. The learned Rent Controller, found from the description of the property purchased by the landlady in the sale deed dated 23.05.1986 and the description in the Rent Note Exhibit A.2 that the premises let out to the firm M/s Jiwan lal Vijay Kumar are the same. Sham Lal tenant has stated in examination-in-chief that the demised shop was let out by Mahesh Chand to Jiwan Lal. Thus, it was found that the demised shop is the same, which was previously let out by Mahesh Chand at the rent of Rs. 13,500/- per annum. On the basis of Rent Note Exhibit A.2, the Court found that shop consisting of more area has been let out in the year 1986. 7. The Rent Controller also considered the fact that in the House Tax Assessment Register, the rental value was Rs. 6,000/- per annum but the said assessment was for the period when the shop was on rent with Jiwan Lal from Mahesh Chand. The statement of RW1-Dev Raj was found to be not in consonance with the Rent Note Exhibit A.2. Therefore, the said statement was not believed. 6,000/- per annum but the said assessment was for the period when the shop was on rent with Jiwan Lal from Mahesh Chand. The statement of RW1-Dev Raj was found to be not in consonance with the Rent Note Exhibit A.2. Therefore, the said statement was not believed. On the basis of the Income Tax record of the firm M/s Jiwan Lal Vijay Kumar, the Court found that earlier the premises were on rent @ Rs. 13,500/- per annum and, therefore, the rate of rent cannot be Rs. 6,000/- per annum. Consequently, the stand of the landlady was accepted and a finding was returned that the rate of rent was Rs. 20,000/- per annum. 8. The learned Appellate Authority found that Dr. Kulbhushan Gupta, the witness of lease in favour of the respondent is a relation of the petitioner and therefore, his testimony cannot be relied upon as he is an interested witness. Similarly, Pawan Kumar, who was allegedly present at the time of creation of the tenancy, has been examined as RW 2 by the tenant. It has also been found that the said witness is also a relation of the tenant. it was thus, found that there is no independent oral evidence from either of the parties, therefore, the rate of rent is to be determined on the basis of documentary evidence. The documentary evidence believed by the learned first Appellate Court was of the house tax imposed by the Municipal Council on the basis of the rental value of Rs. 6,000/- per annum when the notice was issued by the Municipal Council on 23.12.1985. It was also found that the rent of Rs. 20,000/- per annum is unbelievable as the landlady has purchased the property for Rs. 60,000/- and, therefore, the shop of such value cannot fetch the rent of Rs. 20,000/- per annum. Still further, while discussing the Rent note Exhibit A. 2, the Court found that the previous landlord has not been examined nor the books of accounts have been produced to show that he has been crediting the amount of Rs. 13,500/- as a rent of the shop in the books of accounts. Referring to Exhibits AX/1, AX/2, the Court found that the amount of Rs. 14,140/- even if is inclusive of house tax of Rs. 810/-, does not corroborate the version of the landlady that the rate of rent was Rs. 13,500/-. 13,500/- as a rent of the shop in the books of accounts. Referring to Exhibits AX/1, AX/2, the Court found that the amount of Rs. 14,140/- even if is inclusive of house tax of Rs. 810/-, does not corroborate the version of the landlady that the rate of rent was Rs. 13,500/-. Consequently, the learned Appellate Authority, while accepting the appeal, set aside the order passed by the learned Rent Controller. 9. Learned counsel for the petitioner has vehemently argued that in fact, the parties are near relations. The said fact is not disputed by the learned counsel for the respondent. As per the relationship details given by the petitioner, Meena Rani wife of Raman Kumar, the petitioner, is daughter-in-law of Jiwan Lal, the earlier tenant. Sham Lal-tenant is the husband of sister of Jiwan Lal and Vijay Kumar is son of Sham Lal. Similarly, Dr. Kulbhushan Gupta examined as AW 2 and Pawan Kumar, are also the near relations of the parties. With this background, the issue of rate of rent is required to be examined. 10. The premises were let out by the previous owner, Mahesh Chand to the firm M/s Jiwan Lal Vijay Kumar vide Rent Note dated 07.05.1984 (Exhibit A. 2). At that time, the agreed rate of rent was Rs. 13,500/-. On the basis of such rent, the firm has filed the income tax return containing the profit and loss account (Exhibit AX/1), wherein Rs. 14140/- has been reflected as the rent paid by the firm. The learned Authority has found that the said amount is not corroborated by the annual rate of rent of Rs. 13,500/-. The fact remains that the rent paid is more than Rs. 13,500/-, which may be inclusive of house tax. But in any case, the same is not reflected as Rs. 6,000/-. Even assuming that the witnesses of the creation of the tenancy are interested persons and their testimony cannot form the basis for returning the finding regarding the rate of rent, but the fact remains that in the year 1984, the premises were let out at much higher rent than propounded by the tenant i.e. Rs. 6,000/- per annum. The rent of Rs. 6000/- p.m. is only based upon entries in the house tax assessment record. The sole witness of such rent between the parties has been disbelieved. 6,000/- per annum. The rent of Rs. 6000/- p.m. is only based upon entries in the house tax assessment record. The sole witness of such rent between the parties has been disbelieved. In the year 1984, the size the shop let out was 16 x 35 feet (exclusive of stair-case), whereas the shop now let out to the tenant is 16 x 50 feet (inclusive of stair-case). On account of increase in the area, increase in rent is justified and cannot be said to be totally unreasonable. The house tax assessment record is maintained by the Municipal Council for the purposes of levy of House Tax. Such assessment is based upon information collected by the Council. This evidence is not a direct evidence of rate of rent and can not be made the basis to determine the rate of rent. 11. The finding recorded by the learned Appellate Authority that the landlady herself did not appear as a witness is not tenable in law. She has examined her Special Power of Attorney i.e. when the husband Raman Kumar who has deposed in terms of the authority given to his by the landlady Meena Kumar. The Judgment in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, 2005(1) RCR(Civil) 240 : 2005(2) Supreme Court Cases 217, has been considered by this Court in Satnam Channan v. Darshan Singh, 2006(2) RCR(Civil) 614 : 2006(1) RCR(Rent) 427(SC) 2006(2) PLR 459, wherein it has been held that if the witness is examined and the witness deposes in terms of the authority granted, such witness is a competent witness and his statement is admissible in evidence. Thus, the statement of the attorney of the petitioner cannot be said to be not admissible in evidence. 12. One of the reasons given by the learned Appellate Authority is that the property worth Rs. 60,000/- could not fetch the rent of Rs. 20,000/- per annum, more so when the tenancy has been created just after the execution of the sale deed. The said finding of the learned Appellate Authority is based upon surmises and conjectures. The sale consideration is the price, which is accepted by the willing seller and paid by the willing purchaser, therefore, inter-se settlement of the sale consideration may not be conclusive to return a finding that the rent of the shop cannot be Rs. 20,000/- per annum. The said finding of the learned Appellate Authority is based upon surmises and conjectures. The sale consideration is the price, which is accepted by the willing seller and paid by the willing purchaser, therefore, inter-se settlement of the sale consideration may not be conclusive to return a finding that the rent of the shop cannot be Rs. 20,000/- per annum. Keeping in view the rent of the premises let out in the year 1984, the assertions of the petitioner that the rent was Rs. 20,000/- per annum cannot be said to be wholly unjustified and thus, the finding recorded by the learned Appellate Authority, are not sustainable in law. Consequently, the order passed by the learned Appellate Authority is set aside and that of the Rent Controller is restored and the tenant is ordered to be evicted. 13. There was a bona fide dispute regarding the rate of rent, therefore, in terms of the judgment of the Honble Supreme court in Rakesh Wadhawan v. Jagdamba Industrial Corporation, 2002(1) RCR(Rent) 514 : AIR 2002 SC 2004, the tenant is granted three months time from today to tender the difference in arrears of Rent for the period 01.07.1986 to 31.12.1987 along with interest of Rs. 3000/- and costs of Rs. 1000/-, before the learned Rent Controller. If the rent is paid/deposited, the ejectment petition shall be deemed to be dismissed, but on failure to deposit the rent as indicated above, the landlord shall be entitled to execute the order of ejectment.