Tirath Singh vs Virinder Pal

J.M. Tandon, J.—Tirath Singh Petitioner is the owner of Shop No. 4 forming part of property No. B-XI/358, Fateh Ganj Benjman Road, Ludhiana, which is in occupation of Varinder Pal Respondent as a tenant. To start with, the Respondent occupied the shop as a tenant under Sardara Singh, brother-in-law of the Petitioner with effect from February 18, 1970, at Rs. 75/- per month Sardara Singh filed an ejectment application against the Respondent on the ground of non-payment of arrears of rent with effect from November 1, 1971, to October 30, 1972. The Respondent tendered the arrears of rent alongwith interest and costs on the first date of hearing and the amount was received by Sardara Singh on December 21, 1972. The ejectment application was dismissed Sardara Singh filed another ejectment application against the Respondent on the same ground of non-payment of arrears of rent for the period November 1, 1972 to March 31, 1973. The Respondent tendered the arrears etc and the ejectment application was dismissed on April 26, 1973. Sardara Singh filed the third ejectment application against the Respondent again on the ground of non-payment of arrears of rent from April 1, 1973 to August 31, 1973. The arrears were paid by the Respondent to Sardara Singh and the ejectment application was dismissed on August 24, 1973

On July 12, 1972, the Respondent filed a suit for a declaration against the Petitioner and Sardara Singh Respondent that he was a tenant of the shop directly under the Petitioner at Rs. 80/- per month. The Subordinate Judge, Ludhiana, vide order dated August 23, 1974, held that Tirath Singh Petitioner had got the rent note executed from the Respondent in favour of his close relation with a view to save himself from the liability to pay house tax and in fact the Respondent was in possession of the shop as a tenant under the Petitioner at Rs. 80/- per month

On October 19, 1974, the Petitioner filed an ejectment application against the Respondent on the ground of non-payment of rent at the rate of Rs. 80/- per month with effect from February 18, 1970. The Respondent tendered Rs. 1,200/ as arrears of rent with effect from September 1, 1973 to December 31, 1974 at the rate of Rs. 75/- per month apart from Rs. 50/- as interest, Rs. 35/- as house tax and Rs. 30/- as costs The amount tendered was accepted by the Petitioner subject to the objection that the tender is incomplete.

The Rent Controller vide order dated March 17, 1976, held that the tender of rent made by the Respondent was valid and consequently dismissed the ejectment application of the Petitioner. The Petitioner having failed in appeal which was dismissed by the Appellate Authority vide order dated May 9, 1977, has filed the present revision.

Tirath Singh Petitioner appeared as his own witness and stated that the civil Court vide judgment and decree dated August 23, 1974, declared that the Respondent was in occupation of the shop as a tenant under him. In cross-examination, he stated that he did not accept the Respondent as a tenant prior to the date of the decision of the Civil Court. He had been treating Sardara Singh as a tenant of the shop in dispute till the date of the decision of the Civil Court. He admitted that on the back of the rent note executed by the Respondent in favour of Sardara Singh, there were entries regarding the receipt of rent upto October 31, 1971. He however, denied that these entries were in his hand The Respondent appeared as his own witness and stated that he had taken the shop on rent from the Petitioner at Rs. 75/- per month The terms were settled with him. It was at the instance of the Petitioner that the rent note was executed by him in favour of his (Petitioner) brother-in-law Sardara Singh to save the Petitioner from the payment of the house tax. The Petitioner has been receiving rent from him and he made entries regarding the receipt thereof on the rent note. The entries on the rent note relate to the payment of rent till May 31 1972. During the pendency of the civil suit the Petitioner got filed ejectment application from Sardara Singh wherein he tendered rent till August 31, 1973. The rate of rent settled was Rs. 75/- per month, but in the suit for declaration filed by him the rate of rent was inadvertently typed as Rs. 80/- per month.

The Petitioner claimed arrears of rent in the ejectment application with effect from February 18, 1970. The ejectment application was filed on October 19, 1974. The rent for the month of October, 1974, had not become due when the ejectment application was filed. The rent for the month of September, 1974, could be paid till the end of October, 1974. It means that the rent for September, 1974, had also not become due when the ejectment application was filed. The Petitioner thus could claim arrears of rent till August 31, 1974.

It is not disputed that the Respondent executed the rent note of the shop in dispute in favour of Sardara Singh, brother-in-law of the Petitioner, on February 18, 1970. It is admitted that the Respondent continued paying rent with respect to which entries were made on the rent note itself. Sardara Singh then filed three ejectment applications against the Respondent on the ground of non-payment of rent and the Respondent tendered the rent therein till August 31, 1973. Sardara Singh got those applications dismissed on receipt of rent of the shop from the Respondent till August 31, 1973.

The Civil Court has held that the Petitioner had got the rent note executed from the Respondent in favour of Sardara Singh to save himself, from the liability to pay house tax, In other words, the findings of the civil Court is that the real landlord right from the inception of the tenancy was the Petitioner, though the rent note had been got executed in favour of Sardara Singh with ulterior motives Under these circumstances, it would be correct to hold that the payment of rent in the previous ejectment applications made to Sardara Singh was in fact received by the Petitioner The Petitioner having received rent from the Respondent till August 31, 1973, in ejectment applications cannot be allowed to claim rent from the Respondent once again with effect from February 18, 1970.

The Respondent had agreed to pay rent of the shop at Rs. 75/- from February, 1970. He continued paying rent at the same rate till August 31, 1973. It is thus obvious that it was by inadvertence that in the declaratory suit filed by the Respondent, the latter mentioned the rent of the shop at Rs. 80/- per month. The fact, however, remains that the Civil Court granted the Respondent a declaration against the Petitioner that the former was in occupant on of the shop under the latter at Rs. 80/- per month. The Respondent is, therefore, liable to pay rent to the Petitioner at the rate of Rs. 89/- per month for the period after August 31, 1973 The rent for the period September 1, 1973, to August 31,1974, at the rate of Rs. 83/- per month comes to Rs. 960/-. The Respondent tendered Rs. 1200/- by way of rent on the first date of hearing which was accepted by the Petitioner. The tender made and accepted by the Petitioner cannot be held short or invalid.

In the result, the revision fails and is dismissed with no order as to costs.