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2015 DIGILAW 686 (RAJ)

Lakhpat Jain v. Appellate Rent Tribunal, Kota

2015-03-23

ALOK SHARMA

body2015
JUDGMENT This petition purporting to be both under Article 226 & 227 of the Constitution of India has been filed against the judgment dated 06.07.2011, passed by the Appellate Rent Tribunal, Kota in Rent Appeal No.5/2006 by which the statutory appeal of the respondent-applicant-landlord (hereinafter “the applicant-landlord”) was allowed, the eviction of the petitioner-non-applicant-tenant (hereinafter “the non-applicant-tenant”) directed, and a certificate of possession in favour of the applicant-landlord issued. In the process, the judgment dated 02.01.2006, passed by the Rent Tribunal, Kota dismissing the applicant-landlord's eviction petition founded upon Section 9(a) of the Rajasthan Rent Control Act, 2001 (hereinafter “the Act of 2001”) has been set aside. The case of the applicant-landlord in his application under Sections 9 and 6 of the Act of 2001 before the Rent Tribunal inter alia seeking eviction of the non-applicant-tenant was that the non-applicant-tenant was inducted as tenant in the suit premises, a shop, in the year 1982 on a rent of Rs.250/- per month. It was stated that for over three years prior to the filing of the petition on 24.09.2004, the non-applicant-tenant has been in default in payment of rent, despite the statutory notice dated 31.08.2004 having been served upon the non-applicant-tenant by registered post requiring him to deposit the arrears of rent in the designated account. It was also stated that in terms of Section 6 (1)(b) of the Act of 2001, the applicant-landlord was entitled to revision of rent with the base of Rs.250/- in 1982 which in his estimation effective 01.04.2004 was Rs.670/- per month. On service of notice of the eviction petition, a reply of denial was filed by the non-applicant-tenant. It was stated that the ground of default as pleaded was not made out as the due rent had been paid in cash albeit no receipt therefor was ever issued by the applicant-landlord. It was stated that however subsequent to the receipt of notice dated 31.08.2004, the contracted rent of Rs.250/- per month was not being paid in cash but deposited in the applicant-landlord's designated bank account. Revision of rent as prayed for was also contested. It was stated that however subsequent to the receipt of notice dated 31.08.2004, the contracted rent of Rs.250/- per month was not being paid in cash but deposited in the applicant-landlord's designated bank account. Revision of rent as prayed for was also contested. On the pleading of the parties, the Rent Tribunal framed two issues, which loosely translated are as under : (i) whether the contracted rent for the shop in issue was Rs.250/- per month in the year 1982 entitling the landlord to revision thereof and (ii) whether the non-applicant- tenant was in default in payment of rent for a period of over four months prior to the filing of the petition despite service of notice indicating the designated bank account into which the arrears of rent were to be deposited consequent to which he was liable to be evicted and the applicant-landlord entitled to a certificate of possession in respect of the tenanted premises. On consideration of the matter, the Rent Tribunal, Kota vide its judgment dated 02.01.2006 held that the applicant-landlord was entitled to revision of rent in terms of Section 6(1) (b) of the Act of 2001 consequent to which the revised rent payable was Rs.823/- per month effective 01.04.2003 but the applicant-landlord was entitled to recover the said monthly rent @ Rs.823/- only effective 24.09.2004 i.e. the date of filing of the eviction petition. It was however held that the ground of the non-applicant- tenant being in default in terms of Section 9(a) of the Act of 2001 was not proved primarily for the reason that the applicant-landlord had purportedly admitted in his cross-examination that he was receiving rent of the tenanted premises in cash, but had not issued any receipt therefor. The prayer for the non-applicant-tenant's eviction was dismissed. Both the applicant-landlord and the non-applicant-tenant were aggrieved of the judgment dated 02.01.2006, passed by the Rent Tribunal, Kota : (i) the applicant-landlord to the extent of the dismissal of the eviction petition. (ii) the non-applicant- tenant to the extent of revision of rent for the tenanted premises @ Rs.823/- per month effective 01.04.2003 albeit recoverable only post 24.09.2004 i.e. the date of filing of the eviction petition. The applicant-landlord's appeal before the Appellate Rent Tribunal, Kota was No.5/2006 and the non-applicant- tenant's cross appeal was No.24/2006. (ii) the non-applicant- tenant to the extent of revision of rent for the tenanted premises @ Rs.823/- per month effective 01.04.2003 albeit recoverable only post 24.09.2004 i.e. the date of filing of the eviction petition. The applicant-landlord's appeal before the Appellate Rent Tribunal, Kota was No.5/2006 and the non-applicant- tenant's cross appeal was No.24/2006. Vide judgment dated 06.07.2001, the Appellate Rent Tribunal, Kota partially allowed the non-applicant-tenant's appeal No.24/2006, modified the judgment passed by the Rent Tribunal determining the revised rent @ Rs.823/- per month and held that the applicant-landlord was entitled to revised rent effective 01.04.2003 @ Rs.590.62/- per month but only so recoverable from the date of filing of the eviction petition. No challenge has been made to this aspect of the matter by the applicant-landlord. The Appellate Rent Tribunal however allowed Rent Appeal No.5/2006 filed by the applicant-landlord, set aside the judgment dated 02.01.2006, passed by the Rent Tribunal, Kota dismissing the eviction petition and directed the non-applicant-tenant's eviction on the ground of default. The Appellate Tribunal held that the Rent Tribunal in dismissing the applicant-landlord's eviction petition misdirected itself and misconstrued the evidence on record to hold that he had admitted in his cross-examination the receipt of cash payment for the due rent but in respect of which no receipts were issued by him. According to the Appellate Rent Tribunal, the non-applicant-tenant had failed to discharge the burden of proof of payment of rent to the applicant-landlord for the period covered under the notice dated 31.08.2004 i.e. more than four months. No rent receipts issued by the applicant-landlord were submitted, nor was any evidence tendered before the Rent Tribunal as to in whose presence the purported cash payment of the monthly rent for the period covered under the notice dated 31.08.2004 was made to the applicant-landlord. It was also noted that the applicant-landlord's notice dated 31.08.2004 demanding the payment of arrears of rent for a period of about three years prior to the issuing of the notice aggregating to Rs.10,000/- had not been replied to by the non-applicant-tenant. It was found from the evidence on record that the non-applicant-tenant had only proved that he had deposited the rent due for the month of August, 2004 onwards till July, 2005—subsequent to the notice dated 31.08.2004 and did not cover the period prior to the notice. It was found from the evidence on record that the non-applicant-tenant had only proved that he had deposited the rent due for the month of August, 2004 onwards till July, 2005—subsequent to the notice dated 31.08.2004 and did not cover the period prior to the notice. In these circumstances, the Appellate Rent Tribunal concluded that despite the admitted receipt of the notice dated 31.08.2004 by the non-applicant-tenant, demanding arrears of rent and despite designation of the Bank account to the tenant's knowledge where the arrears of rent for over four months were to be deposited, the non-applicant-tenant had not made the requisite payments and therefore was in default within the meaning of Section 9(a) of the Act of 2001. Consequently, it was held that the appeal filed by the applicant-landlord to the extent of his aggrievement against the judgment dated 02.01.2006, passed by the Rent Tribunal deserved to be allowed, eviction of the non-applicants. tenant directed with the consequences of a certificate of possession for the tenanted premises being issued in favour of the applicant-landlord. It is this decision of the Appellate Rent Tribunal in the applicant-landlord's appeal No.5/2006, which has been challenged in this petition. Mr. Ashok Mehta, Sr. Advocate appearing with Mr. Devendra Sharma, for the tenant has submitted that there was no good ground before the Appellate Rent Tribunal to upset and set aside the findings of fact of the Rent Tribunal in its judgment dated 02.01.2006 that the landlord had admitted to the receipt of rent in cash but non-issue of receipt therefor. It was submitted that the admission of the landlord by itself was sufficient to prove that the contracted rent @ Rs.250/- per month was at all times paid by the tenant. This undercut the case set up for the tenant's eviction on the ground of default. It has been further submitted that even though the landlord asserted before the Rent Tribunal in the course of his evidence that he had kept accounts with regard to the rent payable by the tenant, yet the said accounts were not produced consequent to which the Rent Tribunal had rightly drawn an adverse inference against the landlord on this count. It has been further submitted that even though the landlord asserted before the Rent Tribunal in the course of his evidence that he had kept accounts with regard to the rent payable by the tenant, yet the said accounts were not produced consequent to which the Rent Tribunal had rightly drawn an adverse inference against the landlord on this count. The Appellate Rent Tribunal erred without just cause in overlooking this aspect of the matter and holding against the tenant on the issue of default for his failure to produce any documentary evidence or even oral evidence of probative worth to establish payment of monthly rent for the tenanted premises to the landlord. It has been further submitted that the very fact that the landlord's case set up before the Rent Tribunal for arrears had been dismissed by the Rent Tribunal established that no amounts at all were due to the landlord. Sr. Counsel submitted that in this view of the matter, the judgment dated 06.07.2011, passed by the Appellate Rent Tribunal, Kota upsetting and setting aside the judgment dated 02.01.2006, passed by the Rent Tribunal, Kota dismissing the eviction petition is liable to be quashed and set aside. Mr. Kamal Chand Gupta and Mr. Surendra Sharma, appearing for the landlord have supported the judgment of the Appellate Rent Tribunal, Kota. It has been submitted that the Rent Tribunal had misread the evidence on record to conclude that the rent prior to 31.08.2004 had been receipted by the landlord. They submitted that the evidence to the contrary clearly showed that it was not so as the landlord had categorically stated in his cross-examination. The burden of proof was not on the landlord to show that the rent due under the notice dated 31.08.2004 had not been paid to him. Counsel submitted that it is trite that burden of proof is on the person who sets up a positive assertion as in the present case where the tenant had stated in his reply that he had paid the rent due prior to 31.08.2004. Counsel submitted that it was for the tenant to prove that he had paid the rent at any time in the three years prior to the filing of the eviction petition. This was not done. Heard. Considered. Perused the judgment of the Rent Tribunal as also the Appellate Rent Tribunal. Counsel submitted that it was for the tenant to prove that he had paid the rent at any time in the three years prior to the filing of the eviction petition. This was not done. Heard. Considered. Perused the judgment of the Rent Tribunal as also the Appellate Rent Tribunal. In my considered opinion, the Appellate Rent Tribunal has rightly upset and set aside the judgment dated 02.01.2006, passed by the Rent Tribunal. The judgment of the Rent Tribunal with regard to the payment of rent by the non-applicant-tenant for the period prior to 31.08.2004 was based on a gross misreading of evidence on record and unsustainable for wrongly having attributed admission of the receipt of rent prior to 31.08.2004 to the landlord. In his cross-examination before the Rent Tribunal, the landlord specifically stated that ;g xyr gS fd izR;FkhZ us eq>s vxLr 2004 rd dk fdjk;k vnk dj fn;k gS ;g lgh gS fd flrEcj 2004 ls uoEcj 2004 rd dk fdjk;k esjs cSad [kkrs esa tek gS tks 250@& :- ekgokj fdjk;k tek djk;kA--------------------------------------- ;g lgh gS fd uoEcj 2004 ds ckn ls tqykbZ 2005 rd dk fdjk;k esjs cSad [kkrs esa tek gSaA The landlord further stated that eSa izR;FkhZ ds fdjk;s dk fglkc uksV djrk FkkA eSa Mk;jh esaVsu ugha djrk FkkA dgha Hkh fy[k ysrk FkkA----------------------------------;g xyr gSa fd eSaus jlhn ughs nhA . To my mind, there is nothing in the aforesaid cross-examination of the landlord to conclude that it tantamounts to admission of receipt of rent for the period covered under the notice dated 31.08.2004 and in respect of which the eviction petition was laid on the ground of default. Contrarily there is specific assertion by the landlord that he had not received rent upto August, 2004. It is true that the landlord elsewhere in his cross-examination stated that izR;FkhZ fdjk;k uxn nsrk Fkk] but that to my mind, cannot override the specific denial of receipt of rent prior to August, 2004 and the consequence of the tenant being in default in respect thereof. The law with regard to the admissions is well settled and has been so reiterated by the Hon'ble Supreme Court in the case of Vathsala Manickavasagam & Ors. Vs. N. Ganesan & Ors. The law with regard to the admissions is well settled and has been so reiterated by the Hon'ble Supreme Court in the case of Vathsala Manickavasagam & Ors. Vs. N. Ganesan & Ors. [ (2013) 9 SCC 152 ] wherein it has been held that an admission in order to be binding has to be complete, valid and its effect clear, certain, definite without any ambiguity, vagueness or confusion. In my considered opinion, both for the reason of specific denial by the landlord of receipt of rent due for the period prior to August, 2004 and also for the reason of the manner of construing an admission as enunciated by the Hon'ble Supreme Court, the Rent Tribunal committed a gross perversity in finding that the tenant was not in default. The Rent Tribunal was not at all justified in holding that the case set up for eviction of the tenant on the ground of default had to be dismissed on the ground of the landlord's own purported admission. Aside of the above, Section 103 of the Indian Evidence Act, 1872 (hereinafter “the Act of 1872”) provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. It is not in dispute that the Act of 2001 does not require a landlord to prove a negative fact i.e. that a tenant has not paid rent. The fact of payment of rent prior to August, 2004 which the tenant asserted and wished the Court to believe was a matter in respect of which the burden of proof was on him. That burden admittedly was not discharged by the tenant by filing of any rent receipt from the landlord or even of evidence of any person in whose presence the rent for the period in dispute was purportedly paid to the landlord in cash. Besides Section 5 of the Act of 2001 generally deals with Payment and remittance of rent by a tenant. Section 5(2) of the Act of 2001 provides every tenant who makes a payment on account of rent shall be entitled to obtain a receipt of the amount paid duly signed by the landlord or his duly authorized agent. Besides Section 5 of the Act of 2001 generally deals with Payment and remittance of rent by a tenant. Section 5(2) of the Act of 2001 provides every tenant who makes a payment on account of rent shall be entitled to obtain a receipt of the amount paid duly signed by the landlord or his duly authorized agent. Alternate modes of payment of rent by a tenant to the landlord have been set out in Section 5(3) of the Act of 2001. Due rent can be paid by cash in terms of Section 5(3), but the tenant is entitled to receipt in respect thereof from the landlord [5(2)]. Further Section 5(4) provides that where the landlord has not disclosed to the tenant his bank account number in the rent agreement into which the rent has to be deposited by the tenant, the tenant is entitled to issue a notice to the landlord by registered post, acknowledgment due, requiring him to convey the bank account number into which the rent can be deposited. The overall effect of Section 5 of the Act of 2001 is therefore that if a tenant is not being issued any receipt on payment of rent in cash, he has to adopt any of the other means of payment of rent as set out in Section 5(3) of the Act of 2001 and require where absent in the rent agreement, the bank account number of the landlord into which the rent can be deposited. Consequently, the tenant is not without protection, if he is being rendered vulnerable on account of non-issue of receipt for rent paid in cash. In the situation such as one alleged by the tenant (non-issue of rent receipt despite payment of rent in cash) in the instant case, it was for him to resort to the provisions of Section 5 of the Act of 2001 for payment of rent by other modes. His failure to do so was/is to his peril. I also find no force in the contention of the counsel for the tenant that the failure of the landlord to challenge the findings of the Rent Tribunal that no arrear of rent was due to him entails the inevitable conclusion that the tenant was not in default and hence his eviction on that ground could not have been directed. The submission is factually incorrect. The submission is factually incorrect. In fact the landlord's appeal against the judgment of the Rent Tribunal is on that challenge and an assertion that the Rent Tribunal had wrongly held that rent prior to 31.08.2004 was not due when it had never been tendered to him or receipted. What Sr. Counsel was seeking to drive at was in fact that the landlord had not demanded arrears of Rs.10,000/- as due rent earlier indicated in his notice dated 31.08.2004 and without such a demand no case for eviction on the ground of default would be made out. But this submission is wholly untenable. The demand for arrears of rent is quite different and distinct from seeking eviction of a tenant on the ground of default in payment of rent. A landlord is free to abandon his claim for arrears of rent but pursue eviction of a tenant on the ground of default. This the landlord in fact did in his eviction petition as evident from the petition itself. Only two issues were framed by the Rent Tribunal on the pleadings and loosely translated in English they are (i) whether the contracted rent for the shop in issue was Rs.250/- per month in the year 1982 entitling the landlord to revision thereof and (ii) whether the non-applicant-tenant was in default in payment of rent for a period of over four months prior to the filing of the petition despite service of notice indicating the designated bank account into which the arrears of rent were to be deposited consequent to which he was liable to be evicted and the applicant-landlord entitled to a certificate of possession in respect of the tenanted premises. It is quite apparent that the landlord from the very inception made no claim for arrears of rent but only sought eviction of the tenant on ground of default. Moreover, the findings of the Rent Tribunal that no rent was due to the landlord from the tenant have been negated by the Appellate Rent Tribunal for valid reasons as discussed elsewhere in this judgment. Once default within the meaning of Section 9(a) of the Act of 2001 was found to have been committed, not claiming of arrears of rent for the period of default by the landlord is no event. Once default within the meaning of Section 9(a) of the Act of 2001 was found to have been committed, not claiming of arrears of rent for the period of default by the landlord is no event. In the circumstances obtaining, I find that the Appellate Rent Tribunal has committed no perversity or misdirection in law in upsetting and setting aside the judgment dated 02.01.2006, passed by the Rent Tribunal dismissing the landlord's eviction petition laid on the ground of the tenant having default in payment of rent within the meaning of Section 9(a) of the Act of 2001. To my mind, in fact the conclusions of the Rent Tribunal were based on a complete misreading of evidence more particularly the cross-examination of the landlord to conclude that he had admitted to the receipt of the payment of rent for the period in dispute in cash. Further the Rent Tribunal also overlooked the provisions of Section 106 of the Act of 1872 to place the burden of proof on the landlord to establish that the rent has not been received by him. The burden of proof to show payment of rent or arrears of rent for the period of over four months prior to the notice dated 31.08.2004 was wholly on the tenant. This he failed to discharge either by producing any rent receipt from the landlord for the period in issue prior to August, 2004 or even thereafter by producing any other evidence of probative worth that the rent due for over four months as on the date of notice dated 31.08.2004 had any time been paid. The writ petition is dismissed.