- (1.) Smt. Indro Devi owned property in Ambala City out of which a shop was let to M/s Khan Chand Jagdish Chand on a monthly rent of Rs. 40/- on the basis of registered rent note Exhibit P. 25 dated 7th March, 1946. The rent note was got registered because the period of lease was three years. Smt. Indro Devi kept on receiving the rent right upto December, 1969, at the rate of Rs. 40/- per month and as many as 24 receipts have been produced on record which are Exhibits P. 1 to P. 24, wherein the rate of rent given is Rs. 40/- per month. Somewhere in January, 1970 Indro Devi died and after her death Prem Nath Jaiswal alleging that he had become the owner of the property by virtue of registered gift deed dated 6th December, 1968, made by Smt. Indro Devi in his favour, filed an application for ejectment against the tenant on the ground of non-payment of rent from January, 1970, to December, 1970, and the rate of rent was mentioned as Rs. 80/- per month. Under the East Punjab Urban Rent Restriction Act, 1949, to save ejectment, the tenant is allowed an opportunity to tender or pay arrears of rent alongwith interest and costs on the first date of hearing and on doing so the tenant saves himself from an order of ejectment. On the first date of hearing, the tenant paid rent at the rate of Rs. 80/- per month as claimed by Prem Nath Jaiswal, in order to avoid ejectment, alongwith interest and costs but lodged its protest that the rate of rent was Rs. 40/-, and not Rs. 80/- as claimed in the ejectment application, since the whole of the payment was made as was claimed in the ejectment application, the same was not pursued and was dismissed as infructuous on 24th July, 1971.
(2.) Soon after the dismissal of the ejectment application, the tenant filed the present suit against Prem Nath Jaiswal on 31st August, 1971, for the refund of Rs. 480/- as the excess rent charged by him and Rs. 20/- as the excess interest, on the first date of hearing, total being Rs. 500/-. In the suit, it was clearly alleged that they were tenant under Smt. Indro Devi and paying rent at the rate of Rs. 40/- per month, who had been receiving the rent at this rate and the last receipt is dated 25th December, 1969 (Exhibit P.4). On this basis it was alleged that Prem Nath Jaiswal could only claim rent at the rate of Rs. 40/- per month and, therefore, had received excess payment on the first date of hearing at the rate of Rs. 40/- per month, for the refund of which they were entitled. Prem Nath contested this suit and in the written statement pleaded that right from the beginning, the rate of rent was Rs. 80/- per month, and not Rs. 40/- as alleged by the plaintiff. All other facts were admitted, namely, that earlier Smt. Indro Devi was the landlady. On the contest of the parties, the following issues were framed : - (1) Whether the defendant received from the plaintiff more than the agreed rent, if so, how much O.P.P. (2) Whether the plaintiff is entitled to recover any amount if found to have been paid in excess of the agreed rent O.P.P. (3) Whether the plaintiff is estopped by his conduct to claim the refund O.P.P. (4) Relief.
(3.) The plaintiff produced the following documentary evidence on record : - (i) Exhibit P. 25, a copy of the registered rent note dated 7.3.1976 executed by Khan Chand Jagdish Chand in favour of Smt. Indro Devi for a period of three years ; (ii) Exhibit P. 1 to P. 24, receipts of rent out of which Exhibits P.1 to P. 13 and P. 15 to P. 21 bear the revenue stamps over which Smt. Indro Devi has signed for having received rent at the rate of Rs. 40/- per month. Exhibit P. 14 is of 8th November, 1968, duly signed by her, counter foil of which could be in her or in her Mukhtiar or legal representatives' possession. Of the above, the last payment is for the months of November and December, 1969, amounting to Rs. 80/- vide receipts Exhibit P. 4, dated 25th December, 1969 ; (iii) Exhibit P.W.3/2, a statement of property tax from the year 1960 to 1975 where the rate of rent payable by the plaintiff-tenant is shown to be Rs. 40/- per month in the records of property tax maintained by the Property Tax Office, Ambala City, which is under the State of Haryana ; (iv) Exhibit P.W. 3/1, copy of statement dated 17th March, 1971, made by Jagdish Chand tenant before the Rent Controller in the ejectment proceedings wherein he tendered rent at the rate of Rs. 80/- per month and he would take separate proceedings for refund of excess amount paid by him on that day.;