J.V.GUPTA,J - (1.) THIS is a tenant's petition against whom ejectment application was dismissed by Rent Controller but eviction was ordered in appeal on the sole ground of non-payment of arrears of rent on the first date of hearing.
(2.) THE landlord-respondent sought the ejectment of Smt. Savitri Bindra from the demised premises which were let out for the running a Nursing Home at the rate of Rs. 3600/- per year. The ejectment application was filed on 3rd March, 1984, whereas the premises were let out five years prior thereto. According to the landlord, the tenant has not paid the rent for the last three years beginning from 1st January, 1981 to 31st December, 1983 and thus, she was in arrears of rent amounting to Rs. 11,400/-. It was also averred that the tenant had not paid the house-tax and other charges to the municipal committee. Plea of subletting was also taken, alleging that the premises were let out to Smt. Savitri Bindra, whereas she had sublet the same to her husband and the wife (sic.) wherein it was pleaded that the building was taken on rent by them jointly for a monthly rent of Rs. 70/- only which included house-tax and municipal charges, etc. According to them they were not in arrears of rent and had paid the rent upto March, 1984. According to them, a money order for Rs. 210/- was sent to Jagmohan, son of the landlord, for the months of January to March, 1984, which was received by him. Thus, the respondents were not in arrears of rent, as the rent @ Rs. 70/- per month, includes the house-tax as well. The learned Rent Controller on appreciation of the entire evidence came to the conclusion that both the husband and wife were tenants under the landlord; that the premises were let out for a monthly rent of Rs. 70/-, and not Rs. 300/- p.m. as claimed by the landlord; that the tenant was not in arrears of rent; rather it had been proved that they have paid the rent up to March, 1984. With these findings, the eviction application was dismissed on 2nd November, 1985. In appeal, the Appellate Authority affirmed the findings of the Rent Controller as regards the rate of rent. The payment of Rs. 210/- by money order to Jagmohan, the son of the landlord, by the tenant was also accepted by the Appellate Authority but it was observed that "Even if this payment of Rs. 210/- is considered to be valid it was deficient is as much as the arrears which were outstanding, as held above, were not sent by money order or tendered in the court. There is another important default on the part of tenants that even the costs of Rs. 30/- which were assessed by the Rent Controller, Dabwali on 5.5.84 was neither paid nor tendered before the Rent Controller." In view of this finding, eviction order was passed.
(3.) LEARNED counsel for the petitioners submitted that once it was held that the rent was Rs. 70/- per month and the claim of the landlord that it was Rs. 300/- p.m. was negatived, the landlord could not be believed that the tenant was in arrears of rent. In any case, argued the learned counsel, Rent Controller on an appreciation of the entire evidence had rightly came to the conclusion that there were no arrears of rent and the tenant had paid the rent upto March, 1984. It was argued that the view taken by the Appellate Authority in this behalf was wholly wrong, misconceived and illegal. The question of payment of costs did not arise even is assessed by the Rent Controller, unless the tenant was found in arrears. There is no finding by the Appellate Authority that the tenant was in arrears of rent as claimed by the landlord in the ejectment application. On the other hand, the learned counsel for the respondent-landlord submitted that there was no evidence of any earlier payment even if it be assumed that the money order Rs. 210/- was sent for the months of January to March, 1984, to Jogmohan, the son of the landlord. According to the learned counsel, the finding of the Appellate Authority was that the tenant was in arrears of rent with effect from January, 1981 to 31st December, 1983, even at the rate of Rs. 70/- p.m.;