M. P. Mehrotra, J. - (1.) :-
(2.) THIS petition arises out of the dispute between the landlord and the tenant. The facts, in brief, are these. A suit was filed for the eviction of the petitioner-tenant by the respondent no. 3 landlord. Arrears of rent and damages were also claimed. The suit was decreed. It seems that during the pendency of the suit, the petitioner vacated the accommodation in question. The petitioner, however, filed a revision under Sec. 25 of Act No. 13 of 1972 against the judgment of the trial court decreeing the suit for arrears of rent. The revision was substantially dismissed except for a minor interference on the question of costs. The revisional court's judgment dated 20-8-1979 is Annexure 1 to the petition. Feeling aggrieved, the petitioner has now come up in the instant writ petition and in support thereof I have heard Sri V. K. Goel, learned counsel for the landlord has made his submissions.
(3.) THIS petition is wholly uncalled for and not maintainable. It seems that on account of the failure of the petitioner to comply with the provisions of Order 15 Rule 5 CPC his defence had been struck off. The plaintiff landlord's case was that the rent was due for the period from 1-12-1973 onwards. The petitioner as the defendant was alleging that he had paid rent upto 14-10-1975. The plaintiff landlord had entered into the witness-box and had deposed to the aforesaid effect, namely that the rent had not been paid to him with effect from 1-12-73. There was no evidence to the contrary from the side of the petitioner as the defendant in the suit. Indeed, it has already been pointed out that his defence had been struck off on account of failure to comply with Order 15 Rule 5 CPC. in such circumstances, it was open to the trial court to hold that the rent had not been paid to the landlord with effect from 1-12-73. The trial court also emphasised that the burden to prove the payment was on the person who alleged the payment. The learned counsel for the petitioner contended that in view of the provisions contained under Sec. 26 (4) of the U. P. Act No. 13 of 1972, the landlord was under a statutory obligation to give the tenant a receipt for rent payable to him and received by him. As it has come in the evidence that the landlord was not giving rent receipts to the tenant, therefore, the burden in such circumstances should be held to have shifted and it was for the landlord to prove non-payment of rent. I cannot accept this contention. If there had been a breach on the part of the landlord to comply with sub-section (4) of Sec. 26 of the Act, he had to be dealt with under the provision of the said Act. However, the question of burden is a different question. Under the Indian Evidence Act the burden is always on the person who alleged payment and it is not for the plaintiff to prove the negative.;