J.V.GUPTA, J. - (1.) THIS is tenant's petition against whom order of ejectment from the premises in dispute consisting of two rooms with open space has been passed by both the Authorities below.
(2.) THE premises in dispute were rented out to Ram Parkash tenant vide rent note dated 5th April, 1955 (Exhibit A1) at a monthly rent of Rs. 40/-. The tenant was for a period of two months for doing the business of cycle spare parts. It was made clear in the rent note that the tenant would not sublet the demised premises; that nothing would be done by him with the roof of the demised premises and that he would not cover the open space in front of the rooms, although he could use the space to the extent of 8 feet wide. The ejectment was sought on the ground that the tenant neither paid nor tendered the arrears of the rent besides the House Tax; that he had used the premises for a purpose other than for which the same were leased out; that he had opened a big hole in the roof of the premises and also constructed a big hall in front of the said rooms by covering the open space to the extent of 23' X 15', besides doing other damages to the building, and thus materially impaired the value and utility of the same. The application was resisted inter alia on the ground that the rent at the rate of Rs. 55/- per month was tendered on the first date of hearing but the same was not accepted by the landlord. It was further pleaded that the premises were taken for manufacturing cycle parts, which business was being done for the last 10/12 years and thus there was no change of user. It was further asserted that the opening in the roof existed prior to the commencement of the tenancy as without it there was no light in the rooms. The roof of the hall rested on the side walls of the neighbors in 1960 and this was done with the permission of the then owners. It was also pleaded that previously an application for eviction was filed on the same grounds and, therefore, present application was barred. The learned Rent Controller found that the tenant had begun to use the premises for a purpose other than for which the same were leased out. It was further found that the tenant had committed acts which had materially impaired the value and utility of the premises in dispute. As regards the objection that the present application was barred on account of the dismissal of the previous ejectment application, the learned Rent Controller observed that nothing was urged on behalf of the tenant in support of this issue. As regards the tender of the arrears of rent on the first date of hearing, the learned Rent Controller found that the tender made at the rate of Rs. 55/- per month was not a valid tender, as there was no fresh tenancy between the parties in 1960 by virtue of which the rent was enhanced from Rs. 40/- to Rs. 55/- per month. In view of these findings, the order of ejectement was passed against the tenant-petitioner. In appeal the learned Appellate Authority affirmed the said findings of the learned Rent Controller and thus maintained the order of ejectment passed in favour of the landlord and against the tenant. Dissatisfied with the same, the tenant has come up in revision in this Court.
(3.) THE learned counsel for the petitioner contended that admittedly the arrears of rent were tendered on the first date of hearing at the rate of Rs. 55/- per month and the same were not accepted by the landlord, as according to him the rate of rent was Rs. 40/- per month. Thus argued the learned counsel, if more rent was being paid by the tenant, it could not be held that the arrears of rent as claimed by the landlord were not tendered on the first date of hearing. I find force in this contention of the learned counsel. Admittedly, the arrears of rent at the rate of Rs. 55/- per month were tendered on the first date of hearing, which were not accepted by the landlord on that date. Thus it could not be held that no valid tender was made by the tenant on the first date of hearing because according to the landlord the rate of rent was Rs. 40/- per month. The learned Rent Controller placed reliance on Smt. Chhima Devi v. Devi Dass, 1971 P.L.R. 1000, inorder to come to the conclusion that if excess rent is tendered and the landlord refuses to accept it and he is only ready to accept the correct arrears of rent and the tenant refuses to give him that part and insists that he must either accept the whole amount, then the tender is conditional. No such proposition was laid down in the said judgment. Rather the petition filed on behalf of the landlord was dismissed. In any case, no meaningful argument could be raised on behalf of the landlord in support of this finding by the authorities below. Thus the tenant was not liable to ejectment on the ground of non-payment of arrears of rent.;