J.V Gupta, J.:— This is tenant's revision petition against whom the eviction order has been passed by both the authorities below.
2. According to the landlady, the premises, in dispute, were leased out on a monthly rent of Rs. 150/-. The lease was for the fixed period of eleven months from October 1, 1968 to August 31, 1969. The tenant had executed the lease deed dated September 19, 1968, Exhibit A.3, in this behalf, in favour of the landlady. It was also pleaded that subsequently by an undertaking, dated June 20, 1976, the tenant had agreed to vacate the demised premises on or before June 30, 1977, positively; failing which, she was to be responsible to bay the rent at the rate of Rs. 400/- per month Her ejectment there from was sought on the ground that she was in arrears of rent from November 1, 1977 to June 30, 1978, at the rate Rs. 400/- per month. The ejectment application was filed on June 12, 1978. On the first date of hearing, the tenant deposited Rs. 1,???50/- as rent at the rate of Rs. 150/- per month; Rs. 21/- as interest and Rs. 25/- as costs; total Rs. 1,096/-. The only dispute before the Rent Controller was as to whether the tender was short or not. According to him, the tenant was liable to pay the rent in advance and, therefore, the interest calculated by the tenant to the tune of Rs. 21/- was less whereas it should have been Rs. 22.50 As such, it was held that the tender was short. Consequently, the eviction order was passed against the tenant. In appeal, the Appellate Authority affirmed the said finding of the Rent Controller and, thus, maintained the eviction order passed against her.
3. The only question in this revision petition is whether the tenant was liable to pay the rent, in advance, no not?
4. According to the landlady, in the rent note, Exhibit A.3, the tenant was liable to pay the rent in advance on the first of each month but not later than the fourth of every month and even after the expiry of the lease period when the tenant had become a statutory tenant, she was liable to pay the rent on the same terms i.e, in advance. Therefore, the interest paid by the tenant on the first date of hearing was less by Rs. 12.50 The learned counsel for the tenant submitted that in the rent note, Exhibit A.3 the rent was fixed at Rs. 120/- per month. It was increased to Rs. 150/- per month in October, 1974. Therefore, a new tenancy came into existence in the year 1974. That being so, the question of paying the rent, in advance, did not arise. In support of the contention, the learned counsel relied upon Ramesh Chand v. Radha Kishan . 1980 82 PLR 351., Kailash Chander v. Mool Raj . 1982 2 Rent L.R 274., and Smt. Darshan Devi v. Smt. Kaushalya Devi . 1976 Rev. L.R 463.. On the other hand, the learned counsel for the landlady submitted, that even after the expiry of the lease period, the tenant was liable to pay rent, in advance, as per the terms of the lease deed. Exhibit A.3 In support of the contention, the learned counsel relied upon Ujagar Singh… v. Prem Kumar…. . 1986-1 89 PLR 509., Uttam Singh Inderjit Singh v. Ram Gopal . 1982 84 PLR 86., and Ratanlal v. Raniram . 1986 2 Rent L.R 272..
5. After heraing the learned counsel for the parties and going through the case law cited at the bar, I am of the considered opinion that a new tenancy was created in October, 1974, when the rent was increased from Rs. 120/- to Rs. 150/- per month. Once the new tenancy was created, the previous tenancy which had come into existance vide rent note, Exhibit A.3, came to an end. Therefore, the landlady was not entitled to claim any advance rent, as such. The authorities relied upon by the learned counsel for the respondent are cleary distinguishable. That being so, the whole approach of the authorities below in this behalf was wrong and illegal. Apart from the above, in the ejectment application, the landlady never pleaded that the tenant was liable to pay the rent, in advance, there she claimed Rs. 400/- per month as the rent. It was in the written statement that the tenant pleaded that earlier the rent was Rs. 120/- per month, vide rent note, Exhibit A.3, but it was in October, 1974, that it was increased from Rs. 120/- to Rs. 150/- per month. It was only during the trial of the ejectment application that the landlady sought the protection of the rent note whereby the tenant was liable to pay the rent, in advance. Thus, it is quite evident that it was never the case set up by the landlady in the ejectment application that the tenant was liable to pay the rent in advance.
6. Under the circumstances, this revision petition succeeds and is allowed. The impugned orders are set aside and the ejectment application is dismissed with costs.
H.L.S
Revision petition allowed.