Order
1. Leave granted.
2. The High Court of Punjab and Haryana at Chandigarh dismissed the revision petition of the appellant in limine, confirming the judgment and order of the appellate authority, passed under the provisions of the East Punjab Urban Rent Restriction Act. The dispute between the parties arose like this.
3. The demised premises is a shop which stood rented out to the first respondent by a joint Hindu family, the Karta of which was Gurbax Singh, one of the four brothers, the second respondent. The Karta used to receive rent from the first respondent. On 23-2-1982, a memorandum recording past partition was prepared by the brothers through a lawyer and the appellant herein was acknowledged to have got this shop in his share. Thereafter, he issued a notice on 1-1-1986 to the respondent stating that w.e.f 1-3-1982 he was the landlord and that the rent at the rate of Rs 50 per month, as orally enhanced mutually, be paid to him. That notice was not responded to by the first respondent though its receipt is not disputed. In this situation, the appellant on 25-2-1986 filed an ejectment application on two grounds, namely, (i) non-payment of rent since 1-3-1982 @ Rs 50 per month; and (ii) closure of the rented shop since 1-10-1985 and sub-letting of the same to one Mohinder Singh. The ejectment was disputed by both the respondents by filing separate but supportive written statements on 19-5-1986 contending that up-to-date rent (without specifying the date) at the rate of Rs 28 per month, as originally fixed, stood paid by the first respondent to Gurbax Singh, second respondent. On the other ground, it was stated that there was no sub-letting. The Rent Controller, Moga, after examining the evidence of the parties, came to the conclusion that the rent fixed was Rs 28 per month which did not stood enhanced to Rs 50 per month, and since the same stood paid by the first respondent to the second respondent, the tenant was not in arrears of rent. The relationship of the appellant and the first respondent after service of notice dated 1-1-1986 was omitted to be pronounced upon. On the ground of sub-letting, the Rent Controller was in favour of the landlord and so he ordered eviction. On appeal to the appellate authority, the order of the Rent Controller was reversed by affirming the decision on the ground of non-payment of arrears of rent and by upsetting the decision on ground of sub-letting holding that in the absence of Mohinder Singh, the alleged sub-lessee, as party to the proceedings, no ejectment order could be passed. The High Court, as said before, dismissed the revision petition of the appellant in limine.
4. The ground of sub-letting has not been pressed by learned counsel for the appellant. However, on the ground of non-payment of rent, there has been a considerable debate. Two things emerge prominently. The first one is that the appellant sent undeniably notice Ex. A-4 on 1-1-1986 to the tenant-respondent intimating him that he had become the exclusive landlord of the property demised w.e.f 23-2-1982 or 1-3-1982, as the case may be, and that, therefore, he was entitled to receive the rent thenceforth. The respondent-tenant did not respond to that notice controverting or questioning the title of the appellant nor did he controvert that rent uptil a date stood paid to the second respondent. Rather he let this aspect remain for the Court of the Rent Controller asserting that he had paid the rent to the second respondent without specifying the date up to which rent had been paid and when. The memorandum Ex. A-1 recording past partition, put on record before the Rent Controller was not pronounced upon and, was brushed aside by the appellate authority holding that it could not be seen in the absence of registration even though the decision of this Court in Roshan Singh v. Zile Singh AIR 1988 SC 881, (1988) 2 SCR 1106 stood cited, in which it was held that a subsequent memorandum recording past oral partition as a family settlement was not required to be registered. Memorandum, Ex. A-1 when read, substantially discloses that the shop in dispute stood fallen to the share of the appellant. Besides two brothers of the appellant appeared as AW-2 and AW-5 and supported it. It records the factum of the past but for certainty the brothers had chosen to straighten things w.e.f 23-2-1982 and the said notice Ex. A-4 to the respondent was to the effect that the appellant was entitled to receive rent w.e.f 1-3-1982. The Rent Controller did not fully grasp the legal situation in the matter and wrongly denied eviction of the respondent on that score. The appellate authority as also the High Court committed the same error. Thus, we are of the view that the orders of the courts below are unsustainable and that the appellant should have an order in his favour since rent concededly was neither deposited in the Court of the Rent Controller on the date of the first appearance in order to avoid ejectment, nor a good cause for non-payment pleaded, particularly after having received the notice dated 1-1-1986. The first respondent claims to have kept paying up to date rent to the second respondent even for the period 1-1-1986 to 19-5-1986 when put to notice. Rather in his counter-affidavit before this Court the tenant states that he has till recently paid rent to the second respondent uptil 1-2-1995 disclosing an unusual obstinacy. In these circumstances, instead of remanding the matter and to have the issue raked up again, we allow this appeal, set aside the impugned orders and order ejectment of the respondent. The order, however, shall not be carried out for a period of one year subject to his filing a usual undertaking within four weeks that he shall pay the current rent w.e.f 1-4-1995 till vacating, failing which the eviction may follow.