Judgment

S. R. DAS, J. : This is an appeal by special leave against the order made on the 20th November 1951 by the Judicial Commissioner of Himachal Pradesh in proceedings instituted by the respondents under Articles 226 and 227 of the Constitution of India.

2. There is no substantial dispute as to the facts leading up to the present appeal. The appellants were tenants of a certain shop premises situate in Solan Bazar in the district of Mahasu in Himachal Pradesh. On the 11th October 1947 they had executed a rent deed by which they agreed to pay an annual rent of Rs. 175 payable as to Rs. 50 on the 1st of Baisakh and as to the balance of Rs. 125 in the month of October in default of which payments the respondents, as landlords, would be entitled to recover the whole of the said rent in one lump-sum. The tenancy created by the rent deed was only for one year in the first instance but it provided that if the tenants desired to continue in occupation they must execute a further rent deed before the expiration of the said term. The appellants never executed any further rent deed but held over and continued in occupation of the demised premises.

3. The appellants fell into arrears with the payments of rents due for the years 1948 and 1949 and the respondents made applications to the Rent Controller for eviction of the appellants under section 13(2) (i) of the East Punjab Urban Rent Restriction Act, 1949 as extended to Himachal Pradesh. The appellants, however, paid up the arrears of rent into Court and claimed the benefit of the proviso to section 13(2)(i). The claim was allowed and the said applications were dismissed accordingly on the 18th December 1950.

4. The appellants again fell into arrears with the payment of rent due for the year 1950. On the 26th December 1950 the respondents served on the appellants a notice calling upon the latter to pay the whole of the said rent forthwith but the appellants failed to do so. The respondents thereupon, on the 2nd January 1951, filed an application under section 13(2)(i) for the eviction of the appellants on the ground of non-payment of rent.

5. Therefore, on the 10th January 1951, the appellants made an application to the Rent Controller for the fixation of a fair rent under section 4 of the said Act.

6. On the 25th January 1951 the appellants filed their written statements in the proceedings under section 13(2)(i) admitting the non-payment of rent and the receipt of the notice but pleaded (i) that the respondents application was barred by reason of the rejection of the previous applications for eviction made by the respondents and (ii) that the present application could not be entertained in view of the pendency of their application for fixation of a fair rent under section 4 of the said Act.

7. On the 20th February 1951 the Rent Controller framed the following issues :

(1) Whether the application in question was not entertainable in view of the judgment of the District Judge dated the 18th December 1950? Onus on Defendants.

(2) If issue No. 1 is not proved, had the opposite party (tenants) not paid the rent and as such were they liable to be ejected? Onus on Plaintiffs.

(3) Have the opposite party already filed an application in the said Court for the fixation of rent and are they, therefore, not liable for ejectment pending the decision on the application and what is its effect on the said application? Onus on Defendants.

8. By his judgment dated the 29th May 1951 the Rent Controller held that as the previous applications related to non-payment of rents for the years 1948 and 1949 the present application which was founded non-payment of rent for 1950 was not barred under section 14 of the said Act but, although the fact of rent being in arrears was admitted, the Rent Controller did not think fit to make an order directing the appellants to put the respondents in possession of the demised premises. The reasons given by him were as follow :

"Regarding the non-payment of the rent when the plea o