Judgment

BHARGAVA, J:- This appeal by special leave is by a tenant who has been ordered to be ejected on the ground that be was in arrears of rent for more then 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 Raj Sethi (1966) 68 Pun LR 431, 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 Judge directing eviction of the tenant-appellant. This appeal is directed against this order of the High Court.

2. 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 sated 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" Thereafter, 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, se