J.V.GUPTA,J. - (1.) THIS is landlord's petition in whose favour eviction order was passed by the Rent Controller but the same was set aside in appeal.
(2.) THE premises in dispute being House No. 2294, Section 7-A, Housing Board Colony Faridabad, is one-room tenement. The landlord filed a ejectment application on 26th October, 1982, inter alia, on the ground that the tenant was in arrears of rent from 1st October, 1980 to 31st October, 1982. The rent was claimed @ Rs. 130/- p.m. In the Written Statement, the plea taken by the tenant was that the rent was Rs. 64/- plus Rs. 5/- as electricity charges i.e. Rs. 69/- in all, and according to him, the rent at the said rate was paid up to October, 1982. According to the learned Rent Controller the tenant had failed to prove that the said rent was paid to the landlord as claimed in the ejectment application. Not only that, it was also found that even rent @ Rs. 69/- p.m. as claimed by the tenant was also not paid. The other pleas of the landlord were negatived. Consequently, the eviction order was passed. In appeal, the learned Appellate Authority reversed the said finding of the Rent Controller and came to the conclusion that the rent @ Rs. 130/- p.m. stood not proved nor was the tenant in arrears of rent. As a result of that, the eviction order was set aside. Learned counsel for the petitioner-landlord submitted that the finding of Rent Controller in this behalf has been reversed in appeal arbitrarily and on surmises and conjectures. The oral testimony of the tenant could not be accepted to prove the payment of rent. Not only that, according to the learned counsel since the tenant was in arrears of rent he earlier filed a suit for injunction on 16th October, 1982, against the landlord alleging that he was being forcibly ejected from the demises premises. The said suit was dismissed as in the written statement it was pleaded by the landlord that the allegations were false and the tenant was not being ejected forcibly. Thus, argued the learned counsel, the whole conduct of the tenant speaks for itself and the burden to prove the payment of the rent was on the tenant which he had failed to discharge by any cogent evidence, and the learned Rent Controller had rightly disbelieved the oral testimony of the tenant in this behalf. He referred to a Division Bench Judgment of this Court in 1984 (1) RLR 531; 1984(1) RCR 606 to contend that the burden of proving the arrears of rent was on the tenant. On the other hand, the learned counsel for the respondent-tenant submitted that it was a case of oral evidence versus oral evidence, and since the Appellate Authority had believed the statement of the tenant this finding should not be interfered with in revisional jurisdiction. It was further argued that since no receipt was being issued by the landlord, the question of any documentary evidence as such did not arise.
(3.) AFTER hearing the learned counsel for the parties and going through the relevant evidence on record, I find force in the contentions raised on behalf of the petitioner.;