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PETITIONER: CHHOTE LAL

       Vs.

RESPONDENT: SHRI KEWAL KRISHAN

DATE OF JUDGMENT25/02/1971

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA DUA, I.D.

CITATION:  1971 AIR  987            1971 SCR  (3) 855  1971 SCC  (1) 623

ACT: East   Punjab  Urban  Rent  Restriction  Act  III  of   1949 Application-under s. 13 for ejectment of  tenant-Electricity charges whether part of rent for the purpose of  determining arrears.

HEADNOTE: The   appellant  was  the  tenant  of  premises   owned   by respondent.  He was ordered to be ejected from the  premises on  the ground that he was in arrears of rent for more  than three  months  and  did not tender them even  at  the  first hearing  by  the  Rent Controller  of  the  application  for ejectment presented by the landlord under s. 13 of the  East Punjab Urban Rent Restriction Act III of 1949.  The District Judge  dismissed the tenant’s appeal.  In revision the  High Court  of Punjab and Haryana proceeded on the basis that  on the  date of application which was made on  22nd  September, 1964,  the  total  arrears due  from  the  tenant  including interest  and electricity charges amounted to Rs. 497.33  P. The  High  Court was of the view  that  electricity  charges would  form  part  of  the  rent.   The  amount  in  deposit according  to the tenant, came to Rs. 469.  As  this  amount did not cover the entire arrears of rent due the tenant  was held  liable  to ejectment by the High Court.   The  present appeal was filed by special leave. HELD  :  In  the application filed by the  landlord  it  was nowhere  stated  that  the arrears  of  electricity  charges formed  part of the rent.  Consequently no issue was  framed by  the trial court whether the electricity  charges  formed part  of the rent.  On the face of it, there was  no  justi- fication  for  accepting  this new point  when  it  was  not pleaded at all in the original application. [857 D]  Read  correctly even the rent note made it clear  that  the electricity  charges  could not possibly form  part  of  the rent.  Further the amount due for consumption of electricity each  month  could only be known at the end of  that  month, while,  under  the  agreement the rent had  to  be  paid  in advance.  The charges were variable and would depend on  the amount  of  electricity consumed.  If the  electric  charges were  held  to  be. part of the rent it would  lead  to  the inference  that even the rent of the building  was  variable and   was   different  each  month.   In   view   of   these

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circumstances  it was clear that the District Judge and  the High  Court went wrong in proceeding on the basis  that  the electric charge formed part of the rent and that non-payment of  electric charges due amounted to non-payment of  arrears of rent. [857 E-858 D] Hari  Ram  Jaggi  v.  Des  Rai  Sethi  (1966)  P.L.R.   431, distinguished. The  High Court had accepted that the amount in deposit  was enough  to  cover  arrears of rent,  in  case  the  electric charges  were  not  treated as part of the  rent.   On  this finding, the decision of the High Court upholding the  order of  eviction could not be justified.  Further, according  to the  District Judge there was no deposit or tender  even  of the  amount  of Rs. 469 as claimed by the  tenant.   In  the revision before the High 85 6 Court this finding of the District Judge was assailed by the tenant.  High  Court  did  not  examine  the  propriety   or correctness  of this finding, The case, therefore,  must  be remanded  to the High Court for determined of  the  question whether  the tenant had made a proper depot., c r tender  of sum of Rs. 469.  In case he had done so he was not in  areas of rent and was not liable to ejectment. [858E-H]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1947  of 1967. Appeal  by special leave from the judgment and  order  dated November  20, 1967 of the Punjab and Haryana-High  Court  in Civil Revision No. 1058 of 1966. R.V.  Pillai, M. L. Aggarwal and N. K. Aggarwal, for  the appellant. S. P. Sinha and M. V. Goswami, for the respondent. The Judgment of the Court was delivered by- Bhargava, J.-This appeal by special leave is by a tenant who has been ordered to be ejected on the ground that he was  in arrears  ,of  rent for more than three months  and  did  not tender  them  even  ,at  the  first  hearing  by  the   Rent Controller of the application for ejectment presented by the landlord  under  section 13 of the East  Punjab  Urban  Rent Restriction  Act III of 1949.  The High Court of Punjab  and Haryana in its judgment stated that, admittedly, the rent of the  premises  was fixed at Rs. 20 per month and was  to  be paid  in advance each month.  In addition, the rent  of  the electricity was to be paid separately.  In dealing with  the case,  the  High Court proceeded on the basis that,  on  the date  of the application which was made on  22nd  September, 1964,  the  rent  that was in arrears amounted  to  Rs.  400 calculated  @ Rs. 20 per mensem.  In addition,  Rs.  22.05P. were due as interest on this amount up to that date, and the costs  due  could be taken at the figure of  Rs.  25.   This totals  to  a  sum of Rs. 447.05P. It was  argued  that,  in addition,  a  sum  of Rs. 50.28P.  was  due  as  electricity charges.   The amount in deposit, according to  the  tenant, came  to Rs. 469. while the various amounts  due,  mentioned above,  made up a total of Rs. 497.33P. On these facts,  the High  Court further was of the view that the amount due  in respect  of electricity charges will certainly form part  of the  rent ’and, relying on an earlier decision of the  same Court  in Hari Ram Jaggi v. Des Rai Sethi(1), it held that the deposit of Rs.- 469 did not cover the entire arrears  of rent  due, so that the tenant was liable to  ejectment.   On this view, the ’High Court upheld the order of the  District

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Judge  directing  eviction  of the  tenant  appealing.  This appeal is directed against this border of the High Court. (1)  1966 P. B. 431.                             857 In  deciding this case, neither the District Judge  nor  the High  Court  took  care  to examine  the  pleadings  in  the application  for  eviction  put  forward  by  the  landlord- respondent, nor did they try to properly interpret the rent- note containing the terms of the tenancy.  In para, 1 of the application presented by the landlord, it was clearly stated that  "the  respondent is a tenant of the  petitioner  at  a monthly rent of Rs. 20." There was no mention at this  stage that  there  was any other amount which formed part  of  the rent.   In  clause (c) of para. 2, it Was stated  that  "the respondent  has  installed  a  separate  meter  without  the consent  of  the petitioner thereby causing  damage  to  the property and-has failed to pay the electricity charges  from January,  1963 to November, 1963 (when he got a  new  meter) which  come to Rs. 50.28nP." In this pleading, all that  was claimed  was  that  the landlord  was  entitled  to  receive electricity charges from the tenant.  It was nowhere  stated that these arrears of electricity charges formed part of the rent.  Consequently, no issue was framed in the trial  Court on the question whether the electricity charges formed part of the rent or not.  For the first time, the appellate Court took  this  point  into  consideration  and  held  that  the electricity charges formed part of the rent.  On the face of it, there was no justification for accepting this new  point when it was not pleaded at all in the original  application. Further,  even the rent note itself makes it clear that  the electricity  charges  could not possibly form  part  of  the rent.   The rent note first mentions that the  appellant  is taking  on rent the premises "on a monthly rent of  Rs.  20, double of Rs. 10, for residential purposes, for a period  of five months commencing from 1st May, 1954." There-after, the rent note, as translated in the paper book, shows that there was a  further agreement as under :-               "I  shall pay one month’s rent in advance  and               shall  remain  paying  rent  every  month   in               advance.   I shall not sub-let the  entire  or               any portion thereof.  I shall pay the electric               charges  separately.   I shall  not  make  any               alteration....... The  agreement  to  pay  the  electric  charges  was,  thus, separately  mentioned.  In Urdu, the language in  which  the rent  note was scribed, the word which has’ been  translated as chases was "Kiraya It  is because of the use of this word that the  High  Court seems  to have held that the electric charges  payable  were part  of  the  rent.’ It failed to notice  that  the  clause itself said that this amount in respect of electric  charges was  to be paid separately.  Further, this was not rent  for electric fittings, but was the amount payable in respect  of actual electric energy consumed in each ’Month.  The  amount due for consumption of ’electricity each month could only be known  at  the end of that month, while, under  the  earlier clause of the agreement, the rent had to be paid 858 in  advance.   On the face of it,  therefore,  the  electric charges  for  a month could not possibly be  paid  with  the rent.  These- electric charges could not, consequently  form part  of the rent.  The charges were further  variable  ’and would  depend  on the amount of  electricity  consumed.   No fixed amount was payable in respect of electricity  charges. If electric charges were to be held to be part of the  rent,

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it  would  lead to the inference that even the rent  of  the building was variable and was different each month.  In view of these circumstances, it is clear that the District  Judge and the High Court went wrong in preceding on the basis that the  electric charges formed part of the rent and that  non- payment  of electric charges due amounted to non-payment  of arrears of rent. As  we have mentioned earlier, the High Court  followed  the decision  of the same Court in the earlier case of Hari  Ram Jaggi(1).   The  High Court failed to notice that,  in  that case,  there  was  a fixed amount  payable  every  month  as electric  charges.   We  do not  consider  it  necessary  to express  any opinion whether, in such a case,  the  electric charges  could or could not form part of the rent.   On  the face  of it, where the electric charges are not  fixed  and can only be ascertained at the end of each month, after  the electricity consumed is known, while the rent is payable  in advance,  it  is clear that the electric Charges  cannot  be held  to form part of the rent.  That basis, on  which  that earlier case was decided, does not, therefore, exist in  the present case. The High Court has ’accepted that the amount in deposit  was enough  to  cover  arrears on rent,  in  case  the  electric charges  are  not  treated as part of  the  rent.   On  this finding, the decision of the High Court upholding the  order of eviction cannot be justified.  It, however, appears  that the District Judge had recorded another finding against  the tenant.   According  to the District Judge_,  there  was  no deposit  or  tender even of the amount of Rs. 469.   In  the revision  before  the  High  Court,  this  finding,  of  the District  Judge was also assailed by the tenant.   The  High Court  did not examine the propriety or correctness of  this finding.  Consequently, it is necessary that this aspect  of the case should be examined by the High Court. As,  a  result,  we set aside the order of  the  High  Court dismissing the revision, and hold that, in case there was  a proper  deposit  or  tender of the sum of  Rs.  469  by  the tenant,  the tenant was not in arrears of rent and  was  not liable to ejectment.  The case will now go back to the  High Court for re-hearing of the revision on the question whether this  sum  of  Rs. 469 had been  tendered  or  deposited  in accordance  with  law so as to satisfy the  requirements  of section  13  of Act III of 1949.  The costs of  this  appeal will abide the result. G. C.                     Case remanded. (1)  [1966] PLR 431.                             85 9