Rakesh Kumar Jain, J.@mdashThis revision petition is directed against the order of learned Rent Controller, Malerkotla, dated 031.1.2011, by which an application filed by the tenant/Petitioner for recasting burden of issue No. 5 upon the landlord has been declined.
2. In this case, notice of motion was issued on 1.3.2011 for 09.3.2011. The case was adjourned to 15.3.2011 and in the meantime, the Rent Controller was directed to adjourn the case before it beyond the date fixed by this Court. Learned Counsel for the Respondent has pointed out that an affidavit was filed before the Court below in which it is alleged that this Court had stayed the proceedings on 09.3.2011.
3. In reply, learned Counsel for the Petitioner submitted that since he had given instructions on phone to the Petitioner, it appears that there was communication gap as a result of which the said application was filed, otherwise there was no intention on the part of the Petitioner to make an assertion before the learned Rent Controller that the proceedings have been stayed.
4. I accept the explanation given, therefore, no action is required to be taken on this score.
5. Learned Counsel for the Petitioner submits that the impugned order is perverse as the finding has been recorded without there being any assertion on the part of the Petitioner. He has drawn the attention of this Court to the finding of the learned Rent Controller which reads that "the Respondent/applicant is admitting Saroj Gupta to be the owner and landlord of the property". He submits that if the Petitioner has admitted Saroj Gupta to be the owner and landlord of the property in dispute, the question of framing of Issue No. 5 does not arise because issue No. 5 is "whether there exists relationship of landlord and tenant between the parties or not"?
6. Learned Counsel for the Respondent has admitted that this line is not there in the written statement from which it could be inferred that there is admission on the part of the Petitioner/tenant that Saroj Gupta is the owner/landlord of the demised premises.
7. Besides this assertion, the learned Rent Controller has observed that since the Petitioner has not disclosed the name of the landlord, therefore, it is his duty to prove issue No. 5 in affirmative. In this regard, he has relied upon a decision of the Supreme Court in the case of Anil Rishi v. Gurbaksh Singh 2006 (2) HRR 162, to contend that "burden of proof rests on the party who asserts affirmative issues and not the party who denied the same. Initial onus is always on the Plaintiff u/s 102 and if onus is discharged by him then it will shift to the Defendant".
8. Learned Counsel for the Respondent while passing the impugned order observed that it will be explained in detail in evidence of the Petitioner as to how the Respondent has become the landlord of the property in dispute.
9. After hearing the learned Counsel for the parties, I am of the view that the impugned order is liable to be set aside in view of the finding recorded which is emanating from the pleadings of the parties and also in view of the decision of the Supreme Court in Anil Rishi''s Case (Supra) which provides that a party is not to prove a fact in negative. If an assertion is made by the Petitioner then the same assertion has to be proved in affirmative. Thus the onus of issue No. 5 is changed and it is put upon the landlord to prove the said issue.
10. In view thereof, the present revision petition is allowed.
