1. The only question which survives for determination in this revision petition against the order of the Appellate Authority, Hissar, dated Feb. 2, 1974, is as to whether there was any arrear of rent due from the petitioners which they failed to tender on the first date of the hearing and were, therefore, on that account liable to ejectment from the shop in dispute.
The respondents in the application filed for ejectment claimed that the rent and the house tax was due from petitioner No. 1 since July 1, 1968. In the written statement filed by the petitioner, they claimed that the rent had been paid up to the end of Dec. 1970 and that they were not liable to pay any house-tax. The petition was filed on January 9, 1971. So, the rent due would be only up to December 31, 1970. The petitioners along with their written statement filed several receipts alleged to be bearing the thumb impression of Durgi Devi, mother of the respondents. It was also pleaded by them that they had taken the property on lease, in fact, from Durgi Devi and the rent note had been executed in favour of her daughters at her asking and that it was Durgi Devi who had been realizing the rent from them. The Refit Controller, after recording evidence of the parties. found that the two receipts, Exhibits D.W. 2/1 and D.W.. 2/2 which were only proved in evidence by the tenants mere genuine receipts but ordered the eviction of the petitioners on the ground, that Durgi Devi had no right to receive the rent and the payment mode to her could not be taken as payment of the rent to the respondents. On appeal, the Appellate Authority held that the tenants had failed to prove the genuineness of receipts, Exhibit D.W. 2/1 and D.W. 2/2, and, therefore, held that the tenants have neither paid nor tendered any rent due on the first date of hearing. Consequently the order of the Rent Controller was upheld and the appeal dismissed which led to the filing of the present petition by the tenant.
2. Mr. P. S. Jain, the learned counsel for the petitioner, has challenged the finding of the Appellate Authority on the ground that neither Durgi Devi who received the rent nor Megh Raj, writer of the receipts, who is admittedly the elder brother of the husband of one of the respondents, has been produced in rental by the respondents. which raises a strong presumption regarding the genuineness of these receipts. The contention of the learned counsel appears In be well merited. There receipts had been produced along with the written statement and one of the respondents who appeared in the witness box admitted that Megh Raj used to receive the rent on their behalf. The petitioners, to Prove these receipts, gave their own statements and also produced the marginal witness of these receipts, Sheo Dutt. The landlord got an opportunity to lead rebuttal evidence but did not choose to produce either Megh Raj or Durgi Devi to deny the genuineness of these receipts. The Appellate Authority rejected these receipts because according to its finding. the attestation by Sheo Dutt was made sometime after the receipts had been written. This finding is based on the sole ground that the ink with which the witness attested is different than the one with which the main receipt was written. On this ground alone. the Appellate Authority was not justified in drawing an inference that the receipts were got attested sometime after their execution. Moreover, this fact alone would not he sufficient to hold that the receipts were not genuine and did not bear the thumb impression of Durgi Devi. I have. therefore, no hesitation in reversing the finding of the lower Appellate Court and in holding that the rent had been paid by the tenant at the rate of Rs. 60/- per month till the end of December 1970 and the respondent had made a wrong averment that the rent was due from July 1, 1968. however. this finding is not enough to reverse the judgment of the Appellate Authority because according to the rent note the petitioners were liable to pay the house tax also apart from Rs. 60/- per month on account of rent. In the written statement, they denied their liability to pay the house tax and as such the question of its payment or tender did not arise. The house tax having been neither paid nor tendered on the first date of hearing, they would be liable to ejectment. The learned counsel for the petitioners. to overcome this situation, urged that there being no determined amount of the house tax, the tenants were not in a position to tender the same. In support of his contention the learned counsel relied on two unreported decisions of this Court in Civil Revn. No. 567 of 1957 (Kundan Lal v. Beni Parshad) decided on August 25, 1958 and Civil Revn. No. 27 of 1967 (Qimat Raj y. Harbans Lal) decided on Dec, 12, 1968 (Punj). In Kundan Lal's case (supra) there was a dispute with regard to the rate of rent and with regard to the actual amount received by the landlord. It was in those circumstances that Mehar Singh, J. (as he then was) observed as under:--
'If the only thing that a tenant knows is that some arrears are due but he does not know the exact amount due or he does not know the rate of rent and cannot work out the exact amount it is physically impossible for him to comply with the statutory. provisions and to make payment of all the arrears of rent due with interest and costs of the application on the first date of hearing of the application.'
It is, therefore, obvious that in that case the tenant could not calculate the arrears due and it was for this reason that the learned Judge held that it was not possible for the tenant to comply with the statutory provisions. In the second case of Qimat Raj (supra), the landlord admitted during the course of his statement that he had received the, amount of Rs. 300/- prior to the date of the filing of the application which he had not accounted for towards the payment of the rent. On these facts it was held that the tenant could not know as to what was the exact arrears due from him and was, therefore, not in a position to comply with the statutory provisions. In the present case, the petitioners have themselves produced certificate, Exhibit D.W. 1/1 which relates to the year 1070-71. In this document the amount of tax due is entered as Rs. 36/- and it is well known that with respect to every year such document is prepared and the house tax clue is entered therein. So, it was not difficult for the tenants to find out as to what was the house tax due for each year. None of the two decisions, therefore, is of any help to the petitioners. It was then contended by the learned counsel for the petitioners that they had paid on March 31, 1971, an amount of Its. 180/- towards the rent of three months from January to March, 1971. As the rent due on the date of the application was only up to the end of December 1970, the tenants were not under obligation to pay this amount and the same may be adjusted towards the payment of the house tax. In support of this contention. reliance was Placed on Khushi Ram v. Shanti Rani (1964) 66 Pun LR 755 and Jaswant Rai v. Devidas 1973 Ren C. J. 698: (AIR 1974 Punj and Har 104). In both these decisions it was held that if the tenant had already paid more rent than what seas due on the date of the eviction application, the said extra sum with the landlord could be adjusted in payment of interest and ends and he would not be liable to eviction on the ground that the interest tendered was less than the actual due.
3. The learned counsel for the respondents refuted this contention of the learned counsel on trio grounds, namely, that the first date of hearing in this case was March 8, 1971 when the tenant Sunder Lal appeared before the Rent Controller in response to the summons issued to him and, therefore. The amount tendered on March 31, 1971 cannot he said to have been tendered on the first date of hearing and that the amount which was specifically described to he the rent for the months of January to March 1971 could not be Adjusted towards the payment of the house tax because the landlord once having accepted this amount on account of the rent for the said months cannot now realize the rent of those months. So far as the second contention of the teamed counsel is concerned, I cannot accept the same in view of the decision in Khushi Ram's case (supra) that the excess amount paid by the tenant can be adjusted towards any other amount due from him. For the first argument, the learned counsel relied on a Full Bench decision of this Court in Vinod Kumar v. Harbans Singh Azad, (1977) 79 Pun LR 144: (AIR 1977 Punj and Har 262). The point involved in the Full Bench case was as to whether the date an which the ex parte order is set aside would be the first date of hearing or not. This case. therefore, has no bearing on the facts of the present case. On the other hand. the case relied upon by the leaned counsel for the petitioners in Jagat Ram v. Shanti Sarup, (1965) 67 Pun LR 43: (AIR 1965 Punj 175) which again is a Division Bench decision is complete answer to the contention of the learned counsel for the respondents. It was held in this case that the words, 'due service' in the context of the proviso to S. 13(2)(i) of the East Punjab Urban Rent Restriction Act must mean service along with the copy of the application and any hearing after this service would he the first date of hearing. In the present case, the record reveals that no summons has been issued to Sunder Lal tenant. The report of the Ahimad on March 8, 1971 was also that the respondents have not been served. The summons available on the record which is one issued to petitioner No. 2, Jagdish Chander which bears the report that service has been effected by affixation of the summons on the shop in dispute. It, therefore, appears that Sunder Lal appeared in the Court because of the affixation of the summons for the service of Jagdish Chander and no summons was served upon him. The question of delivering a copy of the application to hint, therefore, does not arise. The decisions relied upon by the learned counsel for the respondents in C. L. Kiernander v. Benimadhab Khettri, AIR 1931 Cal 763 and P. J. Ratnam v. D. Kanikaram, AIR 1964 SC 244 wherein it was held that when an official act is shown to have been done, the presumption arises that the same was done according to the prescribed procedure, are also of no help to the respondents because in the present cam this presumption stand rebutted from the facts available on the record. Moreover, the service of one of the respondents had not been effected and the case was adjourned tee March 31, 1971 to effect service upon him In them circumstances, as held in Ram Nath v. Girdhari Lal etc. (1959) 61 Pun LR 77, the date March 8, 1971 could not be held to he the date of first hearing. Consequently, the first date of hearing in the present case wag only March 31, 1971 when the case was put up after completion of service before the Rent Controller and the amount tendered on That date would he a tender made on the first date of hearing.
4. In view of the above discussion, this petition is allowed, the impugned order set arise and the application for ejectment dismissed. No costs.
5. Petition allowed.