The burden of proof in establishing default in payment of rent lies with the landlord, and the landlord must discharge the initial burden of proof.

ORDER

1. This writ petition has been filed under Article 227 of the Constitution of India assailing the judgment dated 21.05.2019 passed by the learned Appellate Rent Tribunal, Jaipur, in Civil Appeal No.83/17 whereby, while partly allowing the appeal preferred by the respondents/tenants against the final order dated 24.01.2017 passed by learned Rent Tribunal No.1, Jaipur (Additional Senior Civil Judge No.1, Jaipur Metropolitan) in original application No.146/2004 whereby, the application filed by the petitioner/ landlord under Section 9 of the Rajasthan Rent Control Act, 2001 (for brevity ’the Act of 2001’), was partly allowed and recovery certificate was issued for default in payment of rent, the findings on issue no.1 have been reversed.

2. The relevant facts in brief are that the petitioner filed an application under Section 9 of the Act of 2001 against the respondents seeking their eviction from the suit premises comprising a house survey No.27, Naagtlai Kacchi Basti, New Ananj Mandi, Surajpole, Jaipur on the grounds of default in payment of rent, parting with possession for consideration and material alteration. The application was allowed by the learned Rent Tribunal, Jaipur vide its final order dated 24.01.2017 qua default in payment of rent only, i.e., issue no.1.

3. In the appeal preferred thereagainst by the respondents, the findings vide issue no.1 were reversed by the learned Appellate Rent Tribunal, Jaipur vide its judgment dated 21.05.2019, the subject matter of this writ petition.

4. Assailing the order, learned counsel for petitioner contended that findings of the learned Appellate Rent Tribunal are perverse. He submits that without meeting the reasonings assigned by the learned Rent Tribunal in its final order dated 24.01.2017, the learned Appellate Rent Tribunal has erred in reversing the findings on issue no.1. Learned counsel submitted that since the tenants had failed to establish that they paid the rent for the period of default; the issue no.1 could not have been decided in their favour. He, therefore, prays that the writ petition be allowed, the judgment dated 21.05.2019 be quashed and set aside and the final order dated 24.01.2017 passed by the learned Rent Tribunal be restored.

5. Heard. Considered.

6. While reversing the findings qua issue no.1, the learned Appellate Rent Tribunal has recorded a categorical finding based on material on record that the petitioner/landlord could not establish that the respondents committed default in payment of rent so as to entitle her to a recovery certificate on that count. Although, it was claimed in the original application filed by the petitioner that the rent from the month of January, 2002 was due against the respondents which they did not pay despite the service of notice dated 14.08.2003; but, during the course of her cross examination as PW-1, she has stated that when the notice was given, rent for 2-3 months was due. She has further admitted during the course of her cross examination that neither she was aware as to how much rent was due when the notice was issued nor, she was aware as to how much rent was deposited by the respondents. She stated as PW-1 that account of the rent received was maintained by her daughter, who, was not produced in the witness box. Other two witnesses examined on her behalf namely, Liyakat (PW-2) and Habeeb Khan (PW-3) have stated that they claim default in payment of rent on the basis of information furnished by the petitioner/applicant. Thus, the petitioner failed to establish default in payment of rent for a period of four months. After going through the final order dated 24.01.2017 passed by the learned Rent Tribunal, this court is convinced that the learned Appellate Rent Tribunal did not err in recording a finding that the issue no.1 was decided by the learned Rent Tribunal in favour of the petitioner misplacing burden of onus upon the respondents even when the petitioner had failed to discharge initial burden of proof of the i