H.S. Bedi, J.
1. The present petition is directed against the order of the Appellate Authority reversing the order of the Rent Controller whereby the eviction application filed by the landlord-respondent had been dismissed.
2. A rent note mark 'Z' was executed between Amir Chand, the predecessor in interest of the petitioners and the predecessor in interest of the respondents way back on July 30, 1958, whereby the rent was fixed at Rs. 50/- p. m. with a further stipulation that in addition the property tax would be paid by the landlord, whereas the house tax was to be borne by the tenant. On 2.6.1961, the father of the respondents mortgaged with possession the property in dispute to one Makhan Singh and on the same day, the tenant petitioner executed another rent note Ex. AW 8/1 in favour of the mortgagee, Makhan Singh Makhan Singh, thereafter died and the mortgagee rights were inherited by Chand Rani who subsequently transferred them to one Smt. Nirmalwati on 1.2.1963, Amir Chand died and the property was inherited by the present petitioner, Shanti Swaroop, who redeemed the same from Smt. Nirmtwati vide deed dated 1.4.1973. The landlord Shanti Swaroop thereafter filed an application on 28.5 1974 seeking ejectment of the petitioner on the ground that the petitioner had not paid the rent from 1.4.1973 onwards. In this application the rent was claimed @ Rs. 51/- p.m and in addition the house tax was retrospectively claimed w.e.f. 1.4 1963 to 31.3 1974 as well.
3. The petitioner appeared before the Rent Controller for the first time on 15.2.1975 and the case was adjourned to 26.2.1975. On that day the petitioner tendered a sum of Rs. 1100/- towards arrears of Rent from 1.4.1973 to 31.1.1975 @ Rs. 50/-plus Rs. 66/-towards interest and Rs. 25/ as costs of the petition. The Rent Controller found that the amount tendered was valid and accordingly dismissed the eviction application. Aggrieved, thereby, the landlord-respondent preferred an appeal before the Appellate Authority, who while agreeing with the Rent Controller on the other points raised held that the petitioner was liable to pay rent @ Rs. 50/- p.m. and in addition thereto the house tax as well and holding that the house tax payable was part of the rent and the tender being short, ordered the ejectment of the petitioner. Aggrieved, thereby the tenant has filed the present petition
4. The only ground urged by Mr. B. R. Mahajan counsel for the petitioner is that w.e.f. 2. 6. 1961, when the property was mortgaged by Amir Chand, father of the petitioner upto 31.4 1974, when it was got redeemed from Smt. Nirmalwati the mortgagee and not the owner was the landlord of the property and for that period the respondent was not entitled to claim arrears of rent He has also urged that even assuming that the house tax was due alongwith the rent w.e.f. 1.4.1973 to 31.4.1974, when the property had been redeemed by the respondents even then an excess amount had been tendered on 26.2.1975 which could be adjusted against that head and accordingly there was no ground for the eviction of the petitioner. Mr. Arora appearing on behalf of the landlord respondents, has however urged that as per the rent note mark 'Z' the petitioner was liable to pay the house tax.
5. After hearing the counsel for the parties, I find no merit in the submission of the learned counsel for the petitioner. It is the conceded case that from 2 6 1961 the property was mortgaged with possession to Makban Singh and subsequently to others till it was got redeemed from Smt. Nirmalwati. I am of the view that for the period of the mortgage the owners were not entitled to claim any arrears of rent. Moreover I find that assuming that house tax was payable w.e.f. 1.4.1973 to 31.1.1975, even then the petitioner had made a substantial over deposit, as the arrears of rent would come to Rs. 600/- whereas a deposit of Rs. 1100/- had been made on 26-2-1975 and even assuming the house tax @ Rs. 54/ p a was payable by the petitioner, the same could easily be adjusted from this excess amount. It will therefore, be seen that the order of the Appellate Authority on this aspect is errouneous.
6. Mr. Mahajan has also argued that the rent note mark 'Z' had not been exhibited and as such it could not be taken into account. The case of the respondents, however is that there was a serious dispute between the parties regarding the liability to pay the house tax. In view of what I have held above and keeping in view the fact that the Rent Controller was not called upon to decide this issue and on the Appelate Authority has gone into the matter in a casual way, the dispute on this aspect is left open for a later occasion.
7. For the reasons recorded above, the present petition is allowed and the eviction application dismissed with no order as to costs.