IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.3953 of 2007
Date of decision: 10th November, 2008
Dev Samaj Society
... Petitioner
Versus
Sudhir Kumar and another
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Jagdish Manchanda, Advocate for the petitioner.
Mr. D.K. Singal, Advocate for the respondents.
KANWALJIT SINGH AHLUWALIA, J.
Dev Samaj Society registered under the Societies Registration
Act, through Sudarshan Kumar, Principal, Dev Samaj Senior Model School,
Ambala City preferred a petition under Section 13 of the Haryana Urban
(Control of Rent & Eviction) Act, 1973 for eviction of respondent No.1 –
tenant. In the eviction petition, it was stated that the petitioner – society,
being a registered society, vide appropriate resolution passed, was
competent to file eviction petition through Sudarshan Kumar, Principal, Dev
Samaj Senior Model School, Ambala City. It was stated that the petitioner –
society was owner and landlord of the demised premises. It was further
stated that respondent No.1 Sudhir Kumar was tenant of the shop since
April, 1987 and was paying monthly rent @ Rs.2345/-. Following grounds
were pleaded for seeking ejectment of the tenant:
(a) Respondent No.1 has failed to pay or tender the rent for the
shop to the landlord since 1st October, 2000 to 31st July, 2001.
Therefore, arrears of rent had become due;
Civil Revision No.3953 of 2007 2(b) Respondent No.1 Sudhir Kumar has inducted his father
Parduman Kumar Jain respondent No.2 as sub-tenant without
the written consent of the petitioner-landlord. It was stated that
respondent No.1 has shifted to Ludhiana, has started business
there and has sub-let the shop to his father respondent No.2;
(c) That the respondents, without the written consent of the
landlord, by affixing iron flexible gate on the entrance of the
shop has raised the level of the floor of the shop by breaking
the original floor and has constructed a pucca chabutra
platform in front of the shop. This act of the tenant-
respondents has impaired the value and utility of the demised
premises. Therefore on this ground also, eviction was sought.
Notice was issued by the Court. Respondents caused their
appearance. Written statement was submitted. In the same, it was stated
that Society had not authorized Sudarshan Kumar to file the present
petition, therefore, there is a defect in the institution of the petition and
same is liable to be dismissed.
All averments and pleadings made in the eviction petition, on
merit were denied. However, rate of rent being Rs.2345/- was admitted.
Non-acceptance of the rent on the part of the landlord was pleaded. Since
the demanded rent along with interest was tendered in the Court and was
accepted by the counsel for the petitioner, therefore the ground stands
waived off. Respondent No.1 denied that he has shifted to Ludhiana. It was
stated that respondent No.2 is none else but his father, therefore, ground
of sub-letting is not made out. It was further stated that the alleged
chabutra was in existence from the very beginning. Since there were
frequent thefts in the market, in order to safeguard the same, respondents
Civil Revision No.3953 of 2007 3and other shopkeepers had affixed iron flexible gate, which was allowed by
the petitioner-landlord.
Replication to the written statement was filed. Averments
made in the eviction petition were reiterated. The Court had drawn
following issues:
1. Whether respondent is liable to be evicted from the premises
in question on the grounds mentioned in the petition? OPP
2. Whether present petition has not been filed through duly
authorized person? OPR
3. Relief.
Sudarshan Kumar appeared as PW-1. He tendered registration certificate (Ex.P-1), photocopy of resolution (Ex.P-2),photocopy of proceedings book (Ex.P-3), memorandum of association
(Ex.P-4) and rules and regulations of Dev Samaj Education Society (Ex.P-
5). Tenant examined three witnesses. He himself appeared as DW-3. He
also tendered documentary evidence, R-1 certificate of Chaman Vatika
School, R-2 certificate of Chaman Vatika School in the name of Rajat Jain
son of respondent No.1. RW-1/A admission form of Rajat Jain and Akshat
Jain sons of respondent No.1 were tendered to show that they are studying
at Ambala and to negate plea of the landlord that he has shifted to
Ludhiana. Ex.R-3 is the voter list for the year 2004 was also relied to prove
these facts.
Petitioner had led no evidence in rebuttal.
Rent Controller examined the documents and came to the
conclusion that Sudarshan Kumar was duly authorized person to prefer the
eviction petition.
It was urged before the Rent Controller by the landlord that the
studying of the children of respondent no.1 at Ambala is not sufficient to
Civil Revision No.3953 of 2007 4hold that respondent No.1 has not shifted to Ludhiana, as he has failed to
prove that he is still residing at Ambala. It was further canvassed before the
Rent Controller that affixing the iron gate and constructing the chabutra has
impaired the value and utility of the property in dispute. Adverse inference
should be drawn against the respondent No.1 due to non-appearance of
his father respondent no.2.
Counsel for the respondent before the Rent Controller,
submitted that no evidence has been led by the petitioner-landlord to prove
that respondent No.1 has shifted to Ludhiana. Only bald oral assertion has
been made. It was further submitted that PW-1 Sudarshan Kumar had
admitted in cross-examination that the chabutra was constructed on the
land of committee. It was further pleaded that fixation of flexible iron gate,
in no way impair the value and utility of the property. Rent Controller further
held that bald statement of Sudarshan Kumar PW-1 could not be relied to
hold that there is a sub-letting by respondent No.1 in favour of respondent
no.2. It also took into consideration relationship of son and father and
stated that sitting of father on the shop managed by son cannot be taken
as creation of sub-tenancy. In view of the documentary evidence produced
and the evidence led, ground of sub-letting was rejected. Regarding
fixation of the flexible iron gate and raising of chabutra, Rent Controller has
held as under:
“20. Now coming to the question, “whether the
petitioner has proved on the record his second ground”. It is
the case of the petitioner that the respondent has affixed the
iron gate and has constructed a platform in front of the shop. I
am of the view that it was upon the landlord to prove by
cogent evidence, as to how the construction or the act of the
tenant has impaired the value and utility of the shop. PW-
Sudarshan Kumar Jain has admitted in his testimony that the
platform has been constructed by the respondent on the land
of Municipal Committee. So by this testimony it is categorically
Civil Revision No.3953 of 2007 5established on the record that nothing has been done by the
respondent in the land of the suit shop. The affixing of iron
gate for proper safety of the shop is also not a sufficient
ground to prove that the value and utility of the property has
been diminished. There is no expert opinion on the record by
virtue of which it could be inferred that by the acts of the
tenant, the value of the shop has been impaired. The evidence
of the PW-1 is beyond pleadings about the construction of
another roof in the petition, it has been nowhere pleaded that
any roof has been constructed by the respondents so
therefore, as a cumulative effect of my above discussion, I am
of the view that this ground has also not been proved by the
petitioner. Therefore, the Issue No.2 is hereby decided in
favour of petitioner against the respondents and the Issue
No.1 is hereby decided against the petitioner in favour of the
respondents.”Aggrieved against the same, landlord filed an appeal before
the Appellate Authority. The Appellate Authority examined the various
judgments relied upon by the landlord, discussed their ratio and on facts,
affirmed the findings of the Rent Controller and held as under:
“15. … … … … Tenant Sudhir Kumar Jain has
successfully proved on record that he is running his exclusive
business in which his father used to assist him. If the father of
the tenant Sudhir Kumar Jain is living jointly with him and is
coming regularly at his shop then it may at the maximum can
be treated there joint family, but their business cannot be
termed as a Joint Hindu Family business.”
Appellate Authority also noticed that the counsel for the
appellant admitted that no evidence has come on record on behalf of the
petitioner-landlord “to establish that platform was constructed by the
respondents in front of the shop on the land belonging to petitioner
impairing the value and utility of the shop and that the iron flexible gate
affixed on the entrance have also materially damaged the shop.”
Civil Revision No.3953 of 2007 6
I have heard Mr.Jagdish Manchanda, counsel for the
petitioner. He has urged before me that ground of sub-letting is proved in
the present case. He has stated that once landlord had stated that the
tenant had shifted to Ludhiana then tenant should prove that he is running
a business. He has stated that evidence of School Authorities to show that
the children of respondent No.1 are studying at Ambala, is not sufficient to
hold that respondent No.1 has not shifted to Ludhiana. However,
Mr.Manchanda admitted that the respondent No.1 and 2 are related as son
and father. Two courts below have given concurrent finding of fact that
Sudhir Kumar had not shifted to Ludhiana and running and managing his
business. The fact that his father is looking after the business, as an aid to
his son, has been proved from the evidence led by respondents by
examining RW-2 Sundar Lal as the demised shop was situated in front of
the shop of the witness RW-2. Concurrent findings of two courts below,
based upon documentary and oral evidence, cannot be said to be
perverse. Therefore, I have no reason to disturb the findings of the two
courts below.
Hence, there is no merit in the present petition and the same
is dismissed.
(Kanwaljit Singh Ahluwalia)
Judge
November 10, 2008
rps