1. ' The appellant is the landlord who purchased the property in dispute of which the respondent is the tenant. After purchasing the property, the appellant served a notice on the respondent calling upon him to pay the rent. The respondent replied asking him to inform about the mode of payment of rent; he also called upon the appellant to carry out the repairs. The respondent sent a cheque deducting the amount of taxes allegedly paid by him but it was refused. Ultimately the appellant filed application for ejectment on the grounds of default and personal requirement for his bona fide use and occupation. The respondent denied that any default has been committed by the appellant. It was also denied that the premises is required for bona fide use and requirement of the appellant. The Controller granted the application on the ground that default has been committed.
2. The appeal filed by the respondent, was allowed by the impugned order.
3. ' The appellant had purchased the property on 28th January,1973 and sent a notice to the respondent on 4th Apri1,1973 intimating him about the purchase of the property and demanding the rent. This notice was replied by the respondent on 12th May,1973 in which he stated that he was paying the rent regularly through cheque on 13th of every month and that at the time of securing the premises on rent on 13th February,1968 he had paid Rs,360 to the previous landlord which has not been returned. He, therefore, asked him in what manner he should pay the rent. It seems that this letter was not replied and the respondent by a letter dated 12th November,1973 intimated the appellant that the previous landlord had filed an application for ejectment which was dismissed on 22nd July,1972 and the appeal filed was also dismissed on 2nd August, 1973. He further stated that in the years 1969-10, and 1970-71 he had paid taxes to K.M.C. And he is entitled to deduct the same or that it should be refunded to him. Besides that it was contended that Rs,430 has been paid by him towards repairs. This letter remained unreplied and the respondent sent a challan of property tax to the appellant asking him to clear those bills. On 16th May, 1974, the respondent through his lawyer sent a cheque towards the rent from August, 1973 to May, 1974 less K.M.C. Taxes which had been paid in respect of the years 1969-70 and 1971-72. This cheque was refused by the appellant.
4. On 16th July, the respondent again sent a cheque for Rs,1,358.83 representing the rent from August, 1973 to July,1974 less Rs,441. This is the entire documentary evidence produced by the parties. The appellant was examined and he reiterated what he had stated in the application and produced these letters. The respondent besides other things stated that after the return of cheque in July, 1974 the appellant came to see him when he informed him about the litigation with the previous owner and offered rent to him, but he refused to accept the same. It seems that the appellant was not cross-examined. The learned Appellate Court relying on the aforestated statement which has been quoted in the impugned order came to the conclusion that no default has been committed.
5. The main reason given by the learned Appellate Court is that the aforestated statement has gone unchallenged, and therefore, it is to be accepted that in July, 1974 the rent was offered and not accepted by the appellant. Taking this reasoning on its face value it seems that in arriving at this conclusion serious mistake has been committed as the documentary evidence has been completely ignored. Although this statement has remained unchallenged it can only establish that the rent was offered in July, which may have been in respect of August, 1973 to July, 1974. This does not in any manner wipe out the previous defaults which have been established from the documentary evidence. Although this statement was not challenged in cross-examination, the respondent cannot take benefit of it to establish that no default has been committed. From the evidence of the appellant it is clear that during cross-examination no suggestion was given to him that in July, he had come to the respondent who had offered to pay the rent which was refused by the appellant. In any case, the rent application was filed on 16th January, 1975 and during July, 1974 to December, 1974 the respondent did not write any letter stating about the visit or payment of rent.
6. Therefore, this unchallenged statement cannot lead to the conclusion that default has not been committed by the respondent.
7. ' In order to arrive at a finding one has to scrutinize all the facts on record. The respondent was informed of change of ownership by letter, dated 4th April,1973 which was replied by him on 12th May, 1973. The respondent wanted to know the mode of payment but if the mode was not intimated to him it was his duty to have paid the rent to the appellant in any manner he liked provided it was a legal tender. Again after a lapse of more than one year the respondent by his letter dated 16th May, 1974 sent a cheque for the rent from August, 1973 to July, 1974 deducting Rs,441 as according to the respondent this amount was paid towards K.M.C. Taxes for the period 1969-70 and 197142. The respondent on his own admission did not tender the rent from 4th April, 1973 to 16th May, 1974. Thereafter from the respondent's own showing the rent was again tendered on 10th July, 1974 after deducting Rs,441 which was refused. The rent was tendered for the months of August, 1973 to July, 1974 whereas, the respondent was bound to pay the rent to the appellant if not from the date of purchase at least from 4th April, 1973 when notice was sent to him. There was no justification for non-payment of rent from May, 1973 to May, 1974. In the face of these admitted facts a mere statement that he had offered to pay rent in July, 1974 cannot wipe out the previous defaults. It is well settled that the burden is on the tenant to establish that he has paid the rent. It is the duty of the tenant to pay the rent every month successively. In the present case, for one year no tender was made by the respondent and no satisfactory explanation naps been given to justify this default. For these reasons by a short order, dated 16th August, 1983 the appeal was allowed and by consent of parties the respondent was allowed to vacate and hand over vacant possession of the disputed premises to the appellant by 30th Apri1,1984.