ORDER
1. The tenant has come up in revision against the order of the Appellate Authority who on appeal affirmed the order of the Rent Controller ordering her ejectment from the demised premises.
2. The facts:--
The respondent (hereinafter referred to as the landlord) filed an application for eviction of the petitioner (hereinafter referred to as the tenant) under S. 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) as applicable to Union Territory, Chandigarh. The landlord got an insertion in the Daily Tribune dated March 29, 1987 that he wanted to lease out the first floor excluding a bed room and a bath room of his residential house No. 203 situate in S.21 Chandigarh (for short the demised premises). The tenant's husband approached the landlord and agreed to take the first floor of the demised premises on a monthly rent of Rs. 2500/. He executed a document dated March 29, 1987 agreeing to pay the rent at the rate of Rs. 2500/- per month. A receipt dated March 31, 1987, was issued by the wife of the landlord stating that she had received Rs. 1100/- from the tenant towards service charges provided in the demised premises. On the same day, the landlord executed a receipt for having received Rs. 1400/- as rent from the tenant for the demised premises excluding a bed room and a bath room. It appears that the alleged tenancy entered into a rough weather. On April 2, 1987, the landlord sent an intimation to the Station House Officer Police Station S. 15 Chandigarh that the tenant approached him introducing herself as a close relation of Smt. Bhullar wife of General Bhullar, and requested him to lease out the demised premises. He agreed to do so and received advance rent for the month of April from her. On verification from Smt. Bhullar, he found that the tenant was never referred by her. The husband of the tenant had approached him for refund of the rent and he agreed to do so provided the possession is handed over on April 15, 1987. Another document was executed on April 4, 1987 whereby the tenant undertook to vacate the premises on May 15, 1987. On May 10, 1987 the tenant wrote to the Station House Officer that she has not been able to get alternative accommodation and she be allowed to continue in the demised premises till June 20, 1987. The landlord sought eviction on the grounds on nonpayment of arrears of rent at the rate of Rs. 2500/- per month and that the tenant had agreed to vacate the demised premises by May 15, 1987 and her refusal necessitated initiation of eviction proceedings.
3. The tenant denied the allegations made in the eviction application and pleaded that she had taken the premises on rent at the rate of Rs. 1400/- per month and Rs. 1100/- were to be paid by her for service charges viz; telephone, sweeper and washerman etc.
4. From the pleadings of the parties, the following issues were framed:--
1. What is the rate of rent? OP parties
2. Whether the tender is invalid and insufficient? OPP
3. Whether the respondent is entitled for counter-claim as prayed for? OPR
4. Relief.
5. The tenant tendered the arrears of rent at the rate of Rs. 1400/- per month. The precise question which was agitated before the Courts below was whether the rent was fixed at the rate of Rs. 1400/- per month as alleged by the tenant or Rs. 2500/' - as pleaded by the landlord. The Rent Controller, on appreciation of the entire evidence, came to the conclusion that the rate of rent was Rs. 2500/- per month. This finding was affirmed by the learned Appellate Authority who took into consideration the entire documentary evidence and came to the conclusion that the amount of Rs. 1100/- which was alleged to be payable by the tenant towards service charges was in fact part of the rent and the rate of rent was Rs. 2500/-. Before me, the learned counsel for the tenant reiterated the same submissions which were addressed before the Courts below and rejected. He submitted that the rent was Rs. 1400/-, and Rs. 1100/- which are stated to be towards service charges were not part of rent. It was paid by the tenant towards telephone, sweeper and water charges. I am afraid, the submission is not tenable. The reference to documents Exhibits p/1 to P/3 indicates that the rent was Rs. 2500/ - per month. It appears to have been split up in the subsequent two documents but it appears that the service charges were part of rent, although, different nomenclature was given. I am not persuaded to the a different view than what has been taken by the Courts below. On evidence, the only conclusion that can be drawn is that the rate of rent was Rs. 2500/- per month. The story cooked up by the tenant is an after thought. Thus, the finding regarding rate ofrent is essentially a finding of fact and not open to question in revision. The lender was short and the tenant was liable to be evicted for not tendering the arrears of rent on the first date of hearing.
6. Apart from this, I think there was no valid contract of tenancy between the parties. The tenancy is creation of bilateral agreement under which the landlord agrees to part with the exclusive possession of the property for consideration which is called 'rent' and it may be In cash or kind or partly in cash or partly in kind. The agreement has to be arrived at with the mutual consent of the parties. In the instant case, as the facts stated supra, reveal the alleged tenancy entered into a rough weather from the date of inception. It appears that after the landlord had accepted the advance rent, he learnt about the past conduct of the tenant. She and her husband had been involved in litigation with their previous landlords. The documentary evidence brought on record established that suits for recovery of arrears of rent were filed against the tenant by their previous landlords. The landlord refused to release out the demised premises but the tenant wanted to occupy the same. The matter had to be referred to the police and within four days of the receipt of rent or advance rent as pleaded by the landlord, the tenant undertook to vacate the demised premises by May 15, 1987. In fact the petitioner never entered into possession of the premises as a tenant. She was only a licensee and admitted to remain in possession under a compromise arrived at before the police.
7. The learned Counsel for the tenant in support of his submissions relied upon Haridev Misra v. Jamunadas Agarwal (1989) 2 SCC 112, and submitted that service charges cannot be treated to be a part of the rent. This ruling has no applicability to the facts of the present case. In that case the landlord had rented out the premises on payment of rent. In addition, he was collecting furniture charges from the tenant. The landlord claimed that furniture charges were part of rent. The landlord nowhere pleaded that he had rented out a furnished house to the tenant and the rent was inclusive of furniture charges. In the circumstances of that particular case, the Apex Court observed that furniture charges were not part of rent. As stated supra, there isa documentary evidence that the rate of rent was Rs. 2500/- per month. The totality of the circumstances lead to an irresistible conclusion that the parties agreed to split up the rent into two parts, namely, the rent and the service charges. In fact the service charges were nothing but a part of rent.
8. For the reasons recorded above, there is no infirmity in the conclusion arrived at by the appellate authority. The revision petition is dismissed with no order as to costs. On the oral request of learned Counsel for the petitioner, one month's time is allowed to hand over the vancant possession of the demised premises.
9. Civil Misc. No. 1757/CII of 1989 was fixed for arguments. With the consent of the parties' cousel. I decided to dispose of the revision petition itself. The order of the Apex Court in Special Leave to Appeal No. (s) 463 of 1989 was brought to my notice directing that the hearing in the revision petition be expedited. For the reasons recorded in this judgment, this application is also disposed of accordingly.
10. Petition dismissed.