ORDER
J.V. Gupta, J.
1. This is tenant's petition against whom eviction has been ordered by both the authorities below on account of non-payment of house-tax.
2. The landlord, Smt. Santosh Kumari, filed an ejectment application on 13th Jan., 1984 claiming arrears of rent @ Rs. 240/- per month with effect from 1st Oct., 1982. It is also claimed in para 4 of the ejectment application that the tenant is also liable topay house-tax at the rate of Rs. 24/- per month which he has not paid from 1st May, 1980 to 31st Dec., 1983, in spite of notice served on him on 21st April, 1980. Thus, according to the landlord, a sum of Rs. 1,032/- is also due from the tenant on this account.
2A. On the first date of hearing, the tenant paid the total amount of Rs. 4,290/- including the costs and the interest. The said rent was paid up to 29th Feb., 1984, i.e. in excess for three months. In other words, a sum of Rs. 720/- equivalent of three months' advance rent at the rate of Rs. 240/- per mensem was paid in excess. The stand taken by the tenant was that he was not liable to pay the house-tax, as claimed by the landlord. The learned Rent Controller found that in the earlier ejectment proceedings against the tenant it was held by the Appellate Authority vide order dated 3rd December, 1983 (Copy Ex. A4) that the tenant was liable to pay the house-tax, and, therefore, that finding operated res judicata between the parties. On the basis of this finding, it was held that the tender made by the tenant was invalid, as it did not include the amount due on account of house-tax. Consequently, eviction order was passed on 29th Aug., 1984, in the present application. In appeal, the Appellate Authority maintained the order of ejectment, holding that in the present case the tenant had tendered an excess rent of Rs. 7207- on the first date of hearing than what was due to the landlady but even then the tenant cannot be said to have discharged his liability in full towards the arrears of house-tax which amounted to Rs. 1,032/-. Thus, the tender was held to be invalid.
3. The learned counsel for the petitioner submitted that in the ejectment application, the landlord claimed house-tax amounting to Rs. 1,032/-with effect from the 1st May, 1980, which was wholly wrong, as the house-tax from 1st Sep., 1980 to 30th April, 1981, stood paid by way of adjustment in the earlier ejectment application (Copy Ex. A4) dated 3rd December, 1983. Thus, argued the learned counsel, the house tax, if at all due, amounted to Rs. 700/- only whereas an excess amount paid on the first date of hearing was Rs. 720/-which could be adjusted towards the amount claimed on account of house-tax, in view ofthe judgment of this Court in Ram Avtar v. Anand Sarup Mangla, (1983) 2 Ren CJ 512.
4. On the other hand, learned counsel for the respondent-landlord, argued that no house-tax was paid by the tenant in the earlier ejectment application, and therefore, the question of its adjustment towards the arrears claimed in the present application did not arise. Thus, contended the counsel, even after giving credit for the amount paid in excess on account of rent by the tenant, the tender was still short as regards the house-tax.
5. After hearing the learned counsel for the parties I find force in the contention raised on behalf of the petitioner-tenant. In the earlier ejectment application, the Appellate Authority vide order dt. 3rd Dec., 1983 (Copy Ex. A4) found that 'I hold that the house-tax was payable by the tenant w.e.f. 21-4-1980 i.e., the date on which the demand was made by the landlady in pursuance of the notice Ex.A6 served on him. It was not disputed by the learned counsel for the landlady that the house tax payable by the tenant w.e.f. 21-4-1980 works out to about Rs. 360/-. Since the tenant has already been found above, to have paid excess rent for four months amounting to Rs. 960/-, the amount of house-tax, i.e., Rs. 360/- can be set off from the sum of Rs. 960/- and looked at from this perspective, the tender of rent made by the tenant on the first date of hearing, can, by no stretch of reasoning be termed to be invalid.'
6. Apart from this, the landlady in her ejectment application claimed house-tax from the 1st May, 1980 to 31st Dec., 1983, amounting to Rs. 1,032/-. This is apparently wrong in view of the aforesaid finding given in the earlier proceedings by the Appellate Authority. In view of the wrong averments made by the landlady, she cannot eject her tenant on the ground of non-payment of the house-tax alone which could be adjusted from the excess payment of rent for three months. Consequently this petition succeeds, the order of ejectment passed by the two authorities below are set aside and the ejectment application is dismissed, with no order as to costs.