Judgement

OZA, J. :- This is an appeal by the tenant against an order of eviction granted by the Rent Controller and maintained by the appellate authority and revision petition against which was dismissed by the High Court. The eviction was sought on the ground of arrears of rent. It was alleged that the shop in dispute was let out to the appellant tenant Rs. 5000/- per annum whereas according to the appellant tenant the rent was Rs. 2500/- per annum and not Rs. 5000/- per annum. It was pleaded in the application on behalf of the landlord that the rent note was executed on March 25, 1975. This was for one year and the rent fixed was Rs. 5000/-. According to the tenant, it was pleaded that the rent was Rs. 2500/-. The signature on the rent note was disputed.

2. After recording evidence the courts below have come to the conclusion that the rent note was executed by the appellant-tenant. The rent note mentions that it is for one year. It appears in evidence that initially Rs. 5000/- were paid by the appellant and later on Rs. 2500/- were returned. According to the landlord this was returned as it was agreed that the tenant will remain in the premises only for 6 months and not for one year and therefore Rs. 2500/- were returned. It is alleged that in the rent note there is also a term that the rent will be paid in advance.

3. The landlord befor the Rent Controller claimed that the tenant was in arrears of rent to the extent of Rs. 2500/- for the period commencing from Ist October, 1975 to 31st March 1976 and was in arrears of Rs. 5000/- for the period commencing from Ist April, 1976 to 31st March, 1977. It is not in dispute that on July 30, 1976, the tenant-appellant tendered a sum of Rs. 2500/- saying that it is the advance rent from 9th April, 1976 to 8th April, 1977. He also tendered Rs. 52/- by way of interest and Rs. 30/- as costs, and it is on this basis that it was contended that as this amount of rent was tendered on the first date of hearing, the landlord was not entitled to eviction under S. 13 of the East Punjab Rent Restriction Act. The courts below came to the conclusion that the contention of the tenant that the annual rent was Rs. 2500/- is not established. It was further held that therefore on 30th July when the tenant tendered Rs. 2500/- it was not rent up to date as he was in arrears not only of the amount of Rs. 2500/- for the year ending on March 1976 but he was in arrears for the next year.

4. It was also held that if this rent note could not be used as a piece of evidence for lease from year to year and the lease came to an end after one year, the tenant could only be said to be a tenant holding over and thus he could only be treated as a monthly tenant and even in that view of the matter within the language of S. 13, the tenant will be in arrears at least for 2 months rent i.e. April and May even if the term in the rent note of payment of yearly rent in advance is also not given effect to and in this view of the matter the order of eviction has been maintained.

5. The main contention advanced on behalf of the appellant is that as the rent note is for one year and it fixed yearly rent and talks of yearly rent in advance it clearly is a lease from year to year and therefore as it is not registered in view of S. 17 of the Registration Act and S. 107 of the Transfer of Property Act, this could not be admitted in evidence and therefore the term could not be enforced which talked of payment of yearly rent in advance and it was therefore contended that the tenant at the most could be held to be in arrears to the tune of Rs. 2500/- as Rs. 2500/- was paid in advance and on this basis it was contended that the decree for eviction could not be maintained.

6. Learned counsel for the appellant placed reliance on Sajid Mia Majumdar v. Abdul Sattar Gani, AIR 1954 Assam 102, Babulal Somalal v. Kantilal Hargovandas, AIR 1979 Guj 50 and Chittilapalli Mathai v. Chittilapalli Kochouseph, (1956) 2 Mad LJ 75 to contend that in view of