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2013 DIGILAW 1091 (PNJ)

Rahul Jain v. Prahlad Singh

2013-08-19

RAKESH KUMAR GARG

body2013
JUDGMENT RAKESH KUMAR GARG, J. For the reasons mentioned in the application, which is supported by an affidavit of the petitioner, delay of 2 days in filing the Civil Revision is condoned. The application stands disposed of. CR No.4958 of 2013 (O&M). This is tenant’s revision petition challenging the order of his eviction dated 25.04.2013 passed by the Appellate Authority, Ambala on the grounds of nonpayment of rent as well as personal bonafide necessity of the respondent landlord. As per the averments made in the eviction petition filed on behalf of the respondent landlord, petitioner is a tenant in the demised premises with effect from 01.11.2006 and the monthly rent of the tenanted premises is 1200 since November 2006 with an increase of 5% every year. The rent of the premises was 1260 with effect from 01.11.2007. It was further asserted that the petitioner failed to pay the rent from January 2008 till November 2008 amounting to 13,860. It was further averred that the demised premises were required by the respondent landlord for his personal use and occupation as his son has grownup and the premises are required for use of the family. A further assertion was made that the respondent landlord has no other accommodation within the municipal area of Ambala Cantt., and with the aforesaid submissions it was prayed that eviction of the petitionertenant be ordered. Upon notice, petitioner tenant appeared and filed written statement raising various preliminary objections. It was admitted that rate of rent was 1200 per month which was lateron increased to 1260 per month. However, it was submitted that the respondent landlord has already received the rent from the petitioner on 04.04.2008 and had further received advance rent for eight months at the rate of 1260 per month along with electricity charges for the period with effect from April 2008 to November 2008. Thus, an advance rent of 10,080 was paid and a receipt duly executed along with revenue stamp was also issued to him. It was further submitted that the respondent landlord was having sufficient property and vacant shop. Rest of the averments were denied and it was prayed that eviction petition be dismissed. Thus, an advance rent of 10,080 was paid and a receipt duly executed along with revenue stamp was also issued to him. It was further submitted that the respondent landlord was having sufficient property and vacant shop. Rest of the averments were denied and it was prayed that eviction petition be dismissed. It may be noticed at this stage that the petitioner tenant made a statement on 11.12.2009 before the Rent Controller that he has already paid the demanded rent to the respondent landlord, and thus, did not tender the arrears of rent with costs and interest as assessed. Thereafter, issues were framed on 06.03.2010 and the parties were allowed to lead evidence in support of their respective cases. After considering the evidence on record, the Rent Controller concluded that the rent claimed by the respondent landlord stood paid by way of receipts (Ex.D1 and D2) and also rejected the ground of personal necessity of the respondent landlord holding that the bonafide requirement of the landlord is not proved. Consequently, the eviction petition was dismissed vide order dated 10.02.2012 passed by the Rent Controller, Ambala. Aggrieved from the aforesaid order of the Rent Controller, the respondent landlord filed an appeal before the Appellate Authority, Ambala which was accepted and eviction of the petitioner was ordered on both the grounds, i.e. the petitioner tenant was in arrears of rent and has failed to tender the arrears of rent and that personal necessity of the respondent landlord is proved from the evidence adduced on record. It is well settled that onus to prove payment of rent is upon the tenant. In the instant case, the respondent landlord has claimed rent at the rate of `1260 per month with effect from January 2008 to November 2008. The petitioner tenant has taken a specific stand that the said rent stands paid as the respondent landlord has received the rent for the month of January 2008 to March 2008 and has also taken rent of eight months i.e. from April 2008 to November 2008 in advance and has also issued a receipt (Ex.D1) in this regard. The petitioner tenant has taken a specific stand that the said rent stands paid as the respondent landlord has received the rent for the month of January 2008 to March 2008 and has also taken rent of eight months i.e. from April 2008 to November 2008 in advance and has also issued a receipt (Ex.D1) in this regard. However, while non-suiting the petitioner tenant, the Appellate Authority has found that he has failed to produce rent receipts for the months of January 2008 and February 2008, and moreover, execution of the rent receipt (Ex.D1) alleged to be for the rent of eight months is highly improbable; and for the sake of arguments assuming the aforesaid receipt to be correct, still the petitioner failed to prove the payment of rent for the month of January 2008 to November 2008; and since the petitioner has failed to tender the rent on the date fixed, his eviction from the tenanted premises was automatic and no fault can be found with the same. Though learned counsel for the petitioner tenant has raised an argument to the effect that payment of rent is proved on record from the evidence adduced, but it could not be shown to this Court as to how the petitioner has proved the payment of rent with effect from January 2008 to November 2008. At this stage, the observations of the Appellate Authority may also be noticed, which read thus: “However, it may be observed that the respondent has not produced rent receipts issued by the petitioner landlord for receipt of rent for the months of January, 2008 and February, 2008. Even though, the respondent tenant has produced document purporting to be rent receipt Ex.D1 but rent receipt Ex.D1 is shrouded with suspicious circumstances which render its voluntary execution highly improbable. Firstly, under the receipt the petitioner landlord had written words ‘yours sincerely’ and thereafter signed under the word ‘landlord’ which makes it highly probable that the petitioner landlord signed blank paper for writing of some application or some such similar purpose which was later on converted into receipt. Secondly, the fact that the petitioner landlord did not sign on the revenue stamp also reenforces fortifies this inference. Thirdly, vide document Ex.D1 the petitioner landlord acknowledged having received rent upto February, 2008 but the respondent tenant has not produced the rent receipts for the month of January, 2008 and February, 2008. Secondly, the fact that the petitioner landlord did not sign on the revenue stamp also reenforces fortifies this inference. Thirdly, vide document Ex.D1 the petitioner landlord acknowledged having received rent upto February, 2008 but the respondent tenant has not produced the rent receipts for the month of January, 2008 and February, 2008. Fourthly, the petitioner landlord in document Ex.D1 further acknowledged having received rent for the month of March, 2008 and advance rent for eight months with electricity charges from April, 2008 to November, 2008, total amounting to Rs.10,080/but the total rent for the above said period amounted to Rs.11,340/besides electricity charges and in document Ex.D1 total amount received from the respondent tenant was not mentioned. Fifthly, RW1 Rahul Jain has stated that the petitioner landlord got the rent receipts printed from the computer but RW1 Rahul Jain has not disclosed the name of the person who typed and printed the receipt and has not examined him. Sixthly, in his written statement and affidavit Ex.RW1/A the respondent tenant did not mention where and in whose presence, he paid rent to the petitioner landlord and the respondent has not examined any other person to corroborate his testimony in this regard.” The aforesaid circumstances clearly shatter the stand of the petitioner tenant and thus, on the basis of the evidence on record and in the absence of any evidence to the contrary, this Court is not inclined to take a different view than the one taken by the Appellate Authority with regard to payment of rent. At this stage, it may be relevant to notice the specific averments made by the respondent landlord with regard to second ground of eviction i.e. personal necessity of the respondent landlord, which read thus: “3(b) That the premises are required by the deponent for his personal use and occupation as the son of the deponent has grown up and the premises are required for use of the family.” The respondent landlord has further averred that he has no other accommodation within the municipal area of Ambala Cantt. By making a reference to the aforesaid averments, learned counsel for the petitioner tenant has vehemently argued that even the necessary ingredients to establish the ground of personal necessity have not been pleaded, and therefore, the need of the respondent landlord cannot be said to be bonafide and it is only a wish of the respondent landlord to get the petitioner evicted. At this stage, it is relevant to refer to the provisions of Section 13(3)(a)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, which read thus: “13. Eviction of tenants XXXX XXXX XXXX (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession – (a) in the case of a residential building, if, (i) he requires it for his own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of the 1949 Act in the said urban area;” Thus, for seeking eviction of a tenant, the landlord is required to plead that he requires the demised premises for his or his family’s need and that he is not occupying any other premises in the vicinity and that he has not got vacated any such premises after commencement of the Act. A perusal of the averments made in the eviction petition, as noticed above, would show that the respondent landlord has pleaded all the ingredients of his personal necessity as required; may be the language of the averments is not very specific. It is well settled that if there is any defect in the pleadings of the landlord with regard to the ground of eviction, as raised under Section 13(3)(a)(i) of the Rent Act, the same is not fatal to the petition and the same can be rectified immediately on raising such an objection. This view finds support from the judgment of this Court in ‘M/s Bhatia Cloth House v. Dr. This view finds support from the judgment of this Court in ‘M/s Bhatia Cloth House v. Dr. Raj Kumar Gupta and another’ 2008(4) RCR(Civil) 250, wherein it has been held as under: “It is consistent position in law that ambiguity in pleadings regarding the ingredients, set out in Section 13(3)(a) of the Act, if made good in the evidence, is sufficient compliance of the statutory provisions.” In ‘Raj Kumar v. Budha Mal’ 2011(2) RCR (Rent) 60, it was held that: “Having perused the judgment in Banke Ram’s case (supra), this Court is of the opinion that of course ingredients of subsection (b) and (c) of Section 13(3)(a)(i) of the 1949 Act are to be necessarily pleaded in the eviction petition, however, as held by the Full Bench in paragraph 12 of the judgment, this Court is of the opinion that it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged under subsection (b) and (c) can be looked into. Hence, in the opinion of this Court, if parties were fully aware about the ingredients of subsection (b) and (c) at the time of leading evidence and both the parties have led evidence on these issues, then petition cannot be thrown out merely because the landlord has failed to plead ingredients of subsection (b) and (c) in the eviction petition.” In view thereof, the argument raised that the need of the respondent landlord is not bonafide and is a mere wish is misconceived. Faced with this situation, learned counsel for the petitioner tenant has further argued that the respondent landlord is having other property in the vicinity and therefore, his need is not bonafide and he is not entitled to evict the petitioner. The argument is not supported by any evidence on record. There is nothing on record to support such an argument. Even before this Court, learned counsel for the petitioner could not support the aforesaid argument. In this view of the matter, this Court finds no merit in the grounds raised for challenging the impugned order of eviction passed by the Appellate Authority. No other argument has been raised. Dismissed.