Dismissed

Rakesh Kumar v. Rakesh Gupta

Allahabad HC16 May 2018SCCR/340/2017

Case brief

AI extract

What is this about?

In this revision under the Provincial Small Cause Courts Act, the court dismissed the tenant's challenge to a decree for eviction and rent arrears. The High Court held that the tenancy was month-to-month, requiring only fifteen-days notice, and finding the tenant failed to disprove the landlord's evidence of rent at a higher rate and non-payment.

What did the court decide?

The revision filed by the tenant was dismissed, upholding the decree for eviction and rent arrears.

Rakesh Kumar Vs Rakesh Gupta — Landlord and Tenant | Allahabad HC (2018)

Reserved

Court No . - 26

Case :- S.C.C. REVISION No. - 340 of 2017

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Revisionist :- Rakesh Kumar Opposite Party :- Rakesh Gupta Counsel for Revisionist :- Gopal Srivastava, A.K. Srivastava Counsel for Opposite Party :- Manish Goyal

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Hon'ble Mrs. Sangeeta Chandra,J.

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Heard Mr. A.K. Srivastava, learned

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counsel for the revisionist, who was the tenant/defendant and Mr. Manish Goyal, learned counsel for the respondent, who was the plaintiff/landlord.

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This revision has been filed praying for

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setting aside of the judgment dated 13.1.2017 in S.C.C. Suit No. 07 of 2015 (Rakesh Gupta vs. Rakesh Kumar), passed by the Additional District Judge, Small Causes Courts, Gautam Budh Nagar.

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Briefly stated, the facts of the case are that respondent-plaintiff is the owner and the landlord of the Building No. D-187, Sector 10,

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NOIDA, District- Gautam Budh Nagar. In the basement of the aforesaid building, the revisionist was the tenant since 15.08.2012. The respondent/plaintiff issued a notice dated 19.12.2014 under Section 106 of the Transfer of Properties Act, which was served upon the revisionist/tenant, whereby he determined the tenancy and demanded arrears of rent. The revisionist/tenant gave a reply on 17.1.2015 through his counsel.

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According to the respondent-landlord,

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the arrears of rent were not paid and the disputed accommodation was not vacated despite notice. As such, he filed S.C.C. Suit No. 07 of 2015 on 20.1.2015, which has been decreed by the impugned judgment dated 13.1.2017. Aggrieved by this judgment, the revisionist/tenant has filed present revision under Section 25 of the Provincial Small Cause Courts Act, 1887.

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Learned counsel for the revisionist-

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tenant submitted as under:

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(i) As per the landlord's case in the plaint, he had let out the disputed accommodation to the defendant-tenant for manufacturing purposes. Therefore, as per the provision of Section 106(1), read with Section 107 of the Transfer of Property Act, six months' notice was mandatory to institute the suit. Since, the plaintiff/landlord had not given six months' mandatory notice the SCC suit, itself, was not maintainable.

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(ii) The tenancy was on year to year basis, but the monthly rent was Rs. 7,000/-. Therefore, the court below has committed a manifest error of law and the fact to hold the tenancy to be on month to month basis, and the rent initially to be Rs. 17,000/- per month, and after 11 month @ Rs. 19,000/- per month and again after 11 months @ Rs. 21,000/- per month. There were no evidence, which may in fact, show that the initial rent was Rs. 17,000/- per month. The findings,

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recorded by the court below on the issue of rate of rent, are perverse.

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Mr. Manish Goyal, learned counsel for

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the respondent-landlord has submitted that;

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(i) As per paragraph 2 of the written statement, the defendant/tenant-revisionist had

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admitted the tenancy to commence from 10.9.2012. In his cross-examination dated 13.10.2015, the D.W.1, the tenant himself had stated that an agreement was entered into between him and the respondent, which he had filed in the Sales Tax Department while obtaining Registration of his business. This alleged agreement in possession of the defendant was never filed in evidence. In his cross-examination, the tenant further admitted himself to be a tenant on a month to month basis. He stated that the rent was being paid by him, collectively, for two months at a time. He had further stated that he had not made entries of rent in his diary or any

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other paper but he has used to rely on his memory. He had stated that he never paid the rent by cheque but paid it in cash. He was shown Paper No. 23(x) being copy of ledger account maintained by the respondent, which bore his signature and with respect to the same, he stated that he makes his signature in the same manner as appearing in the ledger account, but it was not his signature. Despite this admission and the evidence on record, the revisionist had not filed any evidence to establish that the acknowledgment, as appearing on Paper No. 23(x), was incorrect or that it did not bear his signature. No effort was made to file report of any hand-writing expert.

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(ii) Since, as per tenant's own admission, the tenancy was on a month to month basis, therefore, the requirement of six months' notice, as provided in first part of Section 106 (1) of the Transfer of Properties Act, would not be attracted

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in the present case, inasmuch as, there was a contract to the contrary between the respondent and the tenant that the tenancy is on a month to month basis.

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(iii) In Mohammad Rihan Ansari vs.

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Sardar Jaswant Singh, 2010(1) ARC 94 (Alld) (paragraph 3 and 9 to 14), the Hon'ble Court has elaborately dealt with a similar issue and held that there is no requirement of six months' notice and one month notice is sufficient to terminate the tenancy, even, if the lease was for manufacturing purposes, if there is an agreement of tenancy on a month to month basis.

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Shri Manish Goyal submits that in case month to month tenancy for manufacturing purpose is agree upon then in that case, six month's notice is not required. One month's notice shall be deemed to be sufficient in compliance of Statutory provisions of Section 106(1) of the Transfer of Property Act.

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In support of his submissions, learned counsel for the respondent has relied upon the judgments of Hon'ble Supreme Court in the case of Inder Sain Bedi (Dead) by LRs. v. Chopra Electricals , (2004) 7 SCC 277 (Paragraph Nos. 19,21, 22 and 24), Samir Mukherjee v. Davinder K. Bajaj and others , (2001) 5 SCC 259 (Paragraph Nos. 5, 7, 8 and 10), Sri Janki Devi Bhagat Trust, Agra v. Ram Swarup Jain (dead) by LRs. , AIR 1995 SC 2482 (Paragraph6), Park Street Properties Private Limited v. Dipak Kumar Singh and another, (2016) 9 SCC 268 (Paragraph Nos. 9, 10, 17 to 19) and a judgement of Lucknow Bench of this Court in Ram Kishore Seth (deceased) and others v. Ram Avtar and others , 2005 (1) ARC 42 (Paragraph 17).

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Mr A.K. Srivastava, learned counsel for the revisionist however has argued in rejoinder that the burden of proving that the landlord had

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let out the disputed premises on rent at the rate of Rs. 17,000/- per month initially lay upon the plaintiff, and that burden was not sufficiently discharged, and only by submission on oath in the plaint and by oral submission of the landlord before the trial court such averment of the plaintiff-landlord could not have been accepted.

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Mr. A.K. Srivastava, learned counsel for the revisionist has relied upon observation in a judgment rendered by a Co-ordinate Bench in Chaubey Sushil Chandra vs Raj Bahadur, reported in AIR 1977 Allahabad 259, (paragraphs 24 and 25 thereof), which are to the effect that the claim set up of outstanding amount as due from the defendant was not sufficiently proved. The Trial Court had found that the Account Books had been prepared simply to create evidence. The plaintiff was obliged to produce other evidence to corroborate the entries. Oral evidence produced on behalf of the plaintiff did not inspire confidence,

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and the entries in the Account Books also appeared to be suspicious as facts to the contrary had come out during the analysis of evidence by the learned Trial Court. This Court upheld the finding of fact recorded by the learned Trial Court that the plaintiff could not prove his case of certain amounts being outstanding against the predecessor in interest of the respondent.

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Learned counsel for the revisionist has also relied upon a judgment of Hon'ble Supreme Court rendered in L.I.C. of India vs Ram Pal Singh Bisen, reported in 2010 (4) SCC 4491 (paragraphs 20, 22, 24, 25, 26 and 31), wherein the Hon'ble Supreme Court was considering a question as to whether in the absence of any oral evidence led by the appellants, and especially in the absence of putting their own defence to the respondent during his cross-examination, such plea raised by the appellants in appeal before the Supreme Court could be accepted. The Supreme

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Court had observed that under Order XII, Rules 1 and 2, any party to a suit may give notice, that he admits the truth of the whole or any part of the case of any other party, and either party may call upon the other party to admit, within seven days from the date of service of the notice, any document and in the absence of such admission after such notice, the cost of proving any such document shall be paid by the party so neglecting or refusing to admit or deny it within the time prescribed. The Hon'ble Supreme Court observed that under Rule 2 A of Order XII C.P.C., if notice of admission is served, but it is not denied, the same shall be deemed to have been admitted. Similarly, Rule 3A of Order XII C.P.C. empowers the Court to admit any document in evidence, even if no notice has been served on the other side. However, the records of that particular case did not show any such procedure being adopted by the appellant in the appeal or before the trial

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court to prove the documents filed by them and marked as exhibits. Thus, no advantage thereof could be given to the appellants on the ground that these documents were marked as exhibits although they were not admitted.

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Mr. A.K. Srivastava, learned counsel for the revisionist has read out paragraphs 25 and 26 of the said judgment, which are as follows:

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“25. No doubt, it is true that failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence, which the appellants have miserably failed to do. Appellants, even though a defaulting party, committed breach and failed to carry out a legislative imposition, then had still to convince this Court as to what was the just cause for doing the same. Thus looking to the matter from any angle, it is fully established that appellants had miserably failed to prove and establish their defence in the case.

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We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been

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mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.........”

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Learned counsel for the revisionist has also placed reliance upon another judgment of the Hon'ble Supreme Court in Thiru John V. Subramaniam vs Returning Officer reported in 1977 (3) SCC 540, wherein challenge was raised as to the ineligibility of the appellant to contest elections for Rajya Sabha as he was less than 30 years of age in an Election Petition. Certain documents relating to college education showed the appellant to have been born in 1946, whereas another documents showed him to have been born in 1943. Such other document was a Baptism Register, wherein entry was made that he was born on 14.05.1943. The High Court found the Baptism Register to be suspicious record, prepared in suspicious circumstances and wholly

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unworthy of reliance.

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The Hon'ble Supreme Court set aside the appellant's election on the ground that in all other circumstances i.e., in various applications that the appellant had submitted for admission to various classes in college or for enrollment as advocate, his date of birth had been shown as 14.05.1946, and therefore, at the time when he contested the election, he was less than 30 years of age.

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The Supreme Court observed in the aforesaid judgment that a party's admission is a substantive evidence and is entitled to carry weight. However, if other evidence much more cogent in nature is produced, the mere oral evidence of such a party may also be disbelieved.

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Learned counsel for the revisionist has also placed reliance upon a Co-ordinate Bench's decision in Birbal Singh vs Harphool Khan, AIR 1976 Allahabad 23 (paragraphs 5, 6, and 7) to

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argue that the initial burden of proof lies on the plaintiff to prove a particular fact on which his cause of action is based. It is only when this burden is discharged that the Court shall raise a presumption in favour of the plaintiff, and it will be for the defendants to rebut that presumption. This Court held that the case set up by the plaintiff has to be initially proved by the plaintiff, moreso when the defendant denies such fact. It is only when a document relied by the plaintiff is duly proved to have been executed, then a presumption under section 118 of the Negotiable Instruments Act can be raised. When the initial burden is not discharged by the plaintiff, there is no question raising a presumption in favour of the plaintiff.

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Learned counsel for the revisionist has further placed reliance upon a judgment rendered by the Supreme Court in State of Madhya Pradesh vs Maharani Ushadevi, reported in 2015 (8) SCC 672 (paragraph 35 thereof),

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wherein the Hon'ble Supreme Court has observed thus:

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“......it is settled law that parties are governed by their pleadings and the burden lies on the person who pleads to prove and further plaintiff has to succeed based on the strengths of his case and cannot depend upon the weakness of the defendant’s case......”

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With regard to the contention raised by Mr Manish Goyal, learned counsel for the respondent that a lease for manufacturing purposes may not be terminable by giving at least six months' notice, in case such a lease is for a period less than a year by an agreement written or oral amongst the parties, learned counsel for the revisionist has placed reliance upon a judgment in Baldev Das and others vs Ram Khelawan, reported in 1979 (5) Allahabad Law Reports 44, wherein it has been argued that this Court has held that where there is no written or oral agreement, but the lease is for manufacturing purpose, then a notice of six months is required

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under section 106 of the Transfer of Property Act.

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I have perused the aforesaid judgment and I find therein that the only two questions that were considered by the learned Judge were relating to whether a unit set up for grinding of corn i.e. a flour mill would be a unit involving manufacturing process, and whether raising of partition wall amounted to taking material alteration in the form and structure of the building in question. This Court has made no observation at all with regard to a lease either oral or written agreed upon for less than a year.

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With regard to the case set up by the counsel for the both the parties, this Court has gone into the evidence recorded by the learned Trial Court very carefully, and it finds that the learned Trial Court has observed that in the plaint itself the plaintiff had made a specific averment that the tenanted property was a basement taken on rent at the rate of Rs. 17,000/- per month,

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with liability also of payment of Rs. 3000/- as electricity charges for a period of eleven months only. After eleven months, the rate of rent was to be increased by Rs. 2000/-per month. Thereafter, again on completion of eleven months, the rent was to be increased by another Rs. 2000/- per month. It had also been stated in the plaint that the premises were taken on rent on 15.08.2012, and till the date of issuance of notice i.e. 19.12.2014, there was Rs. 3,40,000/- outstanding as arrears of rent, besides electricity dues. Notice had been sent demanding the arrears of rent on 19.12.2014, which was found served upon the tenant on 23.12.2014, yet the tenant continued to deposit the rent at the rate of Rs. 7,000/- per month under section 30 of U.P. Act No. 13 of 1972 before the court. Documentary evidence with regard to Treasury Chalan submitted for Rs. 49,000/- for a period of five months and Rs. 14,000/- through Cheque for another period of

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two months had been filed by the tenant to show deposit of admitted amount due as rent before the Court concerned.

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In the written statement however the tenant pleaded that not only the basement, but two other floors in the building in question were taken on the lease at the rate of Rs. 7,000/- per month. Rs. 2,00,000/- had been deposited as advance before the landlord and again Rs. 40,000/- had been offered through cheque. The unit set up by the tenant under the name of Krishna Enterprises was for the purposes of manufacturing cardboard boxes had 10-12 employees therein. It was registered with the Sales Tax Department, the Department of Micro, Small and Medium Enterprises also. The term of lease was initially for five years and rent was payable month to month. After five years, rent was to be increased at the rate of 20% of the initial agreed amount. A specific averment was

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made with regard to the payment of electricity bills in question independently by the tenant to the Electricity Department and giving of such receipts to the landlord.

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It was also mentioned that the suit in question was not maintainable as the notice was invalid since the lease was for manufacturing purposes and that at least six months notice ought to have been given by the landlord before instituting the suit for eviction on the ground of arrears of rent.

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Learned trial court had framed issues relating to whether the rent was payable at the rate of Rs. 17,000/- per month for a period of eleven months initially, and thereafter was to be increased by Rs. 2000/- per month, and whether the plaintiff's submission that the arrears of rent w.e.f. 15.08.2012 to 14.12.2014 for a period of twenty eight months i.e. Rs. 3,40,000/- was due against the tenant, or whether the assertion of the

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tenant that all rent was paid upto 20.10.2014 to the landlord, thereafter the payment was being made in the court concerned under section 30 of the Act could be taken to be correct.

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The issue regarding the rate of rent, and the terms of the lease and the arrears of rent amounting to Rs. 3,40,000/- being due against the tenant, were to be proved initially by the plaintiff. The Trial Court found on the basis of the plaint and also on the basis of oral statement of the plaintiff-landlord and his cross-examination that he had discharged the initial burden placed upon him satisfactorily.

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With regard to the contention of the tenant-revisionist that Rs. 7,000/- per month or the basement and two other floors of the building was agreed upon rent, which was to be increased after five years, and although the lease was for manufacturing purposes on an annual basis, rent was being deposited month to month the learned

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Trial Court had found the same to be far from credible.

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Learned Trial Court has recorded a finding on the basis of evidence of the tenantdefendant and his witnesses that the assertion made by them with regard to rate of rent being fixed as Rs. 7000/- per month to be incorrect, because after the initial burden of proof was satisfactorily discharged by the plaintiff, the tenant could not prove his assertion that the rent was payable only at the rate of Rs. 7000/- per month.

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The tenant revisionist in his oral evidence i.e., his examination-in-chief and crossexamination had made various contradictory statements. He had stated before the learned Trial Court that he did not enter into any written agreement regarding the tenancy in question and that he had paid rent each month at the rate of Rs. 7,000/- per month, but had not taken receipts

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from the landlord. He had also stated that before the Sales Tax Department, he had submitted a rent agreement showing himself to be tenant of the basement in the disputed property. However, he could not remember the rate of rent he mentioned in such application. He also could not produce the alleged written agreement that he filed before the Sales Tax Department in his application for registration of his unit to show that the rent was fixed at the rate of Rs. 7000/- per month. Later on, he said that he had taken the basement as well as two other floors on rent i.e. he had taken three floors of the building situated in Sector 10 in NOIDA at the rate of Rs. 7000/per month. On the other hand, in the Original Suit that was filed by the tenant to preempt the filing of eviction suit i.e. Original Suit No. 929 of 2014, the tenant had admitted that although, he paid rent on a month to month basis to the landlord, entries were made in a ledger by the landlord and

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no receipts were given to him, therefore, being a tenant, he was entitled to protection from eviction without following due process of law.

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The learned Trial Court has found the ownership of the landlord over the property in question to be established, and also the relationship of landlord and tenant to have been established. The entries in the ledger maintained by the landlord were shown to the tenant, he did not dispute the entries made in the ledger as such, nor he did dispute the signatures made thereon as having been forged. His only assertion was that the signatures were similar in pattern to the ones that he made, but were not actually his signatures.

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The assertion that the signature on the ledger was not his, was made by the tenant and therefore, the burden of proof lay upon him to ask for summoning of the expert evidence thereon, and to submit his specimen/undisputed

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signatures for verification or, to cross-examine the plaintiff during the trial. The tenant neither made any application for referring the disputed signatures and entries in the ledger to a Forensic Expert, nor did he cross-examine the plaintifflandlord regarding the entries made in the ledger.

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With regard to the advance being paid by the tenant of Rs. 2,00,000/- in cash to the landlord, such an assertion had only been made during the oral statement by the tenant. No such plea had been taken in the written statement, and it was admitted before the learned Trial Court that the tenant-revisionist had failed to inform his counsel about making over of such a huge amount in cash to the landlord without procuring any written or documentary evidence in this regard.

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Several discrepancies have been

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pointed out by Mr Manish Goyal, learned counsel appearing for the respondent. On the assertion made by the tenant-revisionist in his written

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statement, in his examination-in-chief and in his cross-examination, and various passages have been read out from the judgment impugned to show that the tenant was a wily person prone to make wild allegations without sufficient proof thereof. The tenant could also remember certain things distinctly while he forgot others at will.

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The learned Trial Court had found on cross-examination of the tenant, several such discrepancies not only in his evidence, but also that of other defendant witnesses, four in number, produced by the tenant. In the examination-inchief, all such defendant-witnesses had rendered statements that were exactly in the same language, and identical in fact, to that of the other witnesses. None of them had stated that any written rent agreement had been actually entered upon at the rate of Rs. 7,000/- per month or that they had ever seen the tenant paying the landlord, a sum of Rs. 7,000/- or noting it down

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either in his diary or elsewhere, for the sake of future reference.

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The learned Trial Court disbelieved the evidence of the defendant witnesses finding them to be interested witnesses only. The learned Trial Court found the plaintiff's case to have been sufficiently proved with regard to an oral agreement entered into between the parties for letting out basement of the property in dispute on rent at the rate of Rs. 17,000/- per month.

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With regard to issue No. 9, which related to whether notice of termination of tenancy issued on behalf of the landlord by his Advocate on 19.12.2014 was a valid notice, and a valid ground therefore for instituting the suit for arrears of rent, damages and eviction, the learned Trial Court found from the oral evidence as well as the written statement filed by the tenantrespondent, an admission that rent was being paid on a monthly basis in cash to the landlord, and

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the tenant never demanded any receipts for such payments being made. Although, there was no written agreement, the oral agreement relating to payment of rent on a month to month basis, the lease could not be said to be a lease entered into by the landlord with the tenant for a period exceeding one year or on an annual basis.

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Relying upon a judgment rendered by this Court in Mohammad Rihan Ansari vs Sardar Jaswant Singh, reported in 2010 (1) ARC 94, the learned Trial Court has observed that although under section 106 of the Transfer of Property Act, a Lease Deed executed on a year to year basis or for a period exceeding one year ought to be registered, there is no requirement under law, where such lease is for a lesser period i.e. for 11 months, and since such lease was on the basis of an oral agreement to pay rent on month to month basis, it could be considered to be a valid contract, on which the deeming

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provision of section 106 would not apply.

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Mr. Manish Goyal, learned counsel for the respondent has cited several judgments of the Hon'ble Supreme Court and of this Court to buttress his arguments with regard to a notice of 30 days being valid under the Transfer of Property Act for an unregistered oral lease agreement relating to a property being rented out on a month to month basis.

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In Shri Janki Devi Bhagat Trust, Agra vs Ram Swarup Jain (dead) by L.Rs. reported in AIR 1995 SC 2482, the Hon'ble Supreme Court has observed that the High Court was right in observing that the lease was for a term not exceeding one year, and therefore, was not compulsorily registrable under the first part of section 107, but had wrongly come to the conclusion that since the lease was for a manufacturing purpose, six months' notice to quit was required under section 106. The Supreme

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Court observed that in the absence of a contract between the parties, a lease for immovable property even for manufacturing purpose shall only be deemed to be terminable by six months' notice; where the lease was on a year to year basis for a period exceeding one year. The Supreme Court held that even though, the lease may be for a manufacturing purpose, since the lease was not from year to year, a six months' notice was not required. Such a lease would fall within the second half of section 106, requiring only fifteen days' notice of termination. A lease from month to month or a lease other than a lease from year to year is terminable by fifteen days' notice.

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In Samir Mukherjee vs Davinder K. Bajaj and others, (supra) relying upon the observations made in Janki Devi Bhagat Trust vs Ram Swarup Jain, the Hon'ble Supreme Court observed that section 106 of the Transfer of

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Property Act lays down a rule of construction, which is to apply when the parties have not specifically agreed upon as to whether the lease is annual or monthly. Where the parties by a contract have indicated the duration of a lease, section 106 would not apply. There may be an oral lease for a period of less than one year, which may not be hit by the first paragraph of section 107 of the Transfer of Property Act. If a lease is entered into for a period less than a year by mutual agreement such lease would not be rendered invalid only because it has not been registered. The Supreme Court observed that there was no conflict between section 106 and section 107 of the Act, and for application of section 106, a valid year to year lease shall be deemed to exist only when it is created by a registered document; non-existence of a registered instrument to create such a lease will by itself exclude section 106.

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In Inder Sain Bedi (dead) by LRs.

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Vs Chopra Electricals, (supra), the Hon'ble Supreme Court has observed that under section 106 of the Transfer of Property Act, the landlord and the tenant can mutually agree to create a tenancy for manufacturing purpose for a period less than a year. Such a document may not be a registered document or even a written document. Having agreed upon such terms, even if the lease is for a manufacturing purpose, it would be terminable on giving 15 days' notice. The first part of section 106 would only apply where there was no “contract to the contrary” between the parties. Therefore, if the parties had entered into a contract, such contract would govern the period of notice also for termination of lease.

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In Park Street Properties Private

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Limited vs Dipak Kumar Singh and another,

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(supra) again the Hon'ble Supreme Court has observed that a “contract to the contrary” must be

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a valid one and an unregistered lease agreement for more than one year or, a tenancy from year to year or reserving an yearly rent being invalid, and it would not be covered by the expression “contract to the contrary”. In such cases, the terms contained in such an invalid document would have no evidentiary value and the first part of section 106 of the Transfer of Property Act would apply.

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To the same effect is a Co-ordinate Bench decision cited by the learned counsel for the respondent, namely, Ram Kishore Seth (deceased) and others vs Ram Avtar and others, 2005 (1) ARC 42; Mohammad Rihan Ansari vs Sardar Jaswant Singh, 2010 (1) ARC 94.

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With regard to the arguments raised by the learned counsel for the revisionist Mr A.K. Srivastava, that onus of proof lay upon the plaintiff-landlord to prove that the premises in

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question had been taken on rent at the rate of Rs. 17,000/- per month plus electricity charges on month to month basis, and such onus having not been discharged, the burden of proof could not have been shifted upon the tenant to prove that the rate of rent was agreed at Rs. 7000/- per month, or that the lease was on year to year basis initially for five years, and thereafter, rent was to be increased at the rate of Rs. 20%; Shri Manish Goyal, learned counsel for the respondent has relied upon a judgment rendered by a Co-ordinate Bench in Satya Prakash vs District Judge, Ghaziabad and others, reported in 1982 Allahabad Rent Cases 225. This Court held that the burden to prove the payment was on the person, who alleged the payment to have been made. The tenant having alleged to have made the payment up to date to the landlord of the amount due, he alone was required to prove such payment having been made in accordance with

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law.

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In Dr. Kailash Narain Sharma vs Additional District Judge, Jhansi and others,

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reported in 1987 (1) ARC 385 again this Court held that the burden of proving that the rent had been paid, was on the petitioner-tenant. It was the tenant, who had to adduce cogent evidence before the Trial Court for establishing his case.

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In Mohd. Siddiqui vs IInd Additional District Judge, Unnao and others,

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reported in 1997 (2) ARC 400, this Court again observed that the onus to show payment lies on tenant and mere oral testimony is not sufficient to discharge the same. The notice had been issued by the landlord for termination of tenancy and demanding arrears. The tenant had come forward with a case that the rent was paid, but no receipt was issued by the landlord. This Court observed that in view of the assertion of the landlord on oath in this regard, the onus of proof stood shifted

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to the tenant to show payment of rent as claimed. Having failed to prove payment of rent, either to the landlord or in the court under the procedure prescribed under law, such tenant could not claim protection under Rent Control litigation. This Court had relied upon judgment rendered by the Supreme Court in Mohan Lal vs Laxman Das, reported in 1991 HRR 510 (SC), where the Supreme Court had observed that the onus to show payment lies on tenant and mere oral testimony is not sufficient to discharge the same. If the tenant received a notice that he had fallen in arrears with the demand to pay rent and for termination of tenancy, the tenant is duty bound to clear all arrears by tendering the same to the landlord or by depositing the same in Court as provided under the Act, if he wanted the protection of the Act. He could not just ignore the notice on the ground that it contained an inflated demand and on that ground continue to enjoy the

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accommodation let out to him without payment of rent. The Rent Act does not give blanket protection to a tenant even on non-payment of rent. The Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent.

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With regard to the discrepancies in the written statement and the oral evidence of the tenant-respondent, Mr. Manish Goyal has pointed out several instances available on record, where the tenant respondent would forget some things at will, while remember others at his choice and convenience. He has referred to judgment rendered by a Co-ordinate Bench of this Court in V.K. Gadkari vs IInd Additional District Judge, Aligarh, reported in 1995 (2) ARC 33, where the tenant-respondent in his written statement had stated that the rent had been paid upto date to the landlord without insisting for any receipt. During the cross-examination of the

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tenant, the tenant kept changing his stand constantly. The learned Trial Court therefore rightly disbelieved the tenant as no cogent evidence of payment of rent was produced before it. As a consequence of default in payment of arrears of rent, decree of eviction as prayed for by the plaintiff-landlord ought to have been granted.

¶142

Having perused the pleadings on record and the judgment impugned, this Court does not find any factual infirmity in the recording of evidence and analysis thereof by the learned Trial Court in the judgment impugned.

¶143

It had been admitted by the tenant in Original Suit No. 929 of 2014 that the plaintiff was the owner and landlord of the premises in question, and that he used to pay rent to him on a monthly basis, but was not issued any receipts. The entries were made in the ledger maintained by the landlord. This ledger has been produced by the plaintiff-landlord as evidence before the

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learned Trial Court. The tenant had not denied the entries made therein, nor even his signature, but had merely stated that the signatures looked similar to the one that he usually made, but they were not his. The burden of proving that signatures were not his and the entries in the ledger were not correct regarding receipt of rent by the landlord, thus, lay upon the tenant. The tenant had at one point of time in his oral evidence before the Trial Court admitted that he had filed a written agreement before the Sales Tax Department stating himself to be the tenant of the basement of the property in question. Neither such alleged written agreement was produced before the Trial Court, nor could the tenant remember the rate of rent, he stated in his application for registration before the Sales Tax Department. The four witnesses produced by the tenant were found to be interested and tutored witnesses. In his oral statement, the tenant-

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respondent had alleged that he had given Rs. 2,00,000/- (rupees two lac) in advance to the landlord, and Rs. 40,000/- (rupees forty thousand) through Cheque, but he could not remember, in which month of which year was such a Cheque given to the landlord as advance payment of rent. On the other hand, at one stage, the tenant-respondent had stated that he gave rent in cash and never through Cheque and usually gave such rent on a by monthly basis. He also admitted that he never asked his counsel, who drafted the written statement that he had made such payment of Rs. 2,00,000/- in cash and Rs. 40,000/- through Cheque as advance payment of rent. Even one of the defendant's witness, D.W.-3 Krishna Pal, a friend of the tenantrespondent had stated before the learned Trial Court in his evidence that a written agreement had been entered into between the parties in his presence, but could not tell the details of such

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agreement, and whether it was signed by the witnesses i.e. those present during such agreement having taken place.

¶150

This Court therefore does not find any factual infirmity in the order impugned. There are no legal infirmities also. The learned Trial Court has rightly placed the burden of proving the fact of payment of full rent at the rate of Rs. 7000/per month upon the tenant. The assertion was made by the tenant that the rent was agreed upon at the rate of Rs. 7000/- per month for the basement and two floors above it of the building in question situated in Sector 10, NOIDA on 10.09.2012. It was upon the tenant to prove such an assertion.

¶151

With regard to notice being valid under section 106 of the Transfer of Property Act, even for a lease entered into for manufacturing purpose, the Trial Court has rightly relied upon the judgment rendered in Mohammad Rihan

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Ansari vs Sardar Jaswant Singh, 2010 (1) ARC

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94, as has been observed herein-above.

¶155