IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.418 of 2008 (O&M)
Date of Decision : December 14, 2009.
Smt.Shanti and others .....Petitioners
through Mr.Akshay Bhan, Advocate
versus
Anand Dev and others .....Respondents
through Mr.B.R.Mahajan, Advocate
Civil Revision No.4037 of 2008 (O&M)
Smt.Shanti and others .....Petitioners
through Mr.Pankaj Middha, Advocate
versus
Anand Dev and others .....Respondents
through Mr.B.R.Mahajan, Advocate
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
-.-
1. Whether Reporters of Local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
---
ORDER
Surya Kant, J.
This order shall dispose of Civil Revision Nos.418 of 2008
and 4037 of 2008 as both the cases are between the same parties and
common questions of law and facts are involved in these cases.
C.R. No.418 of 2008 (O&M) 2
[2] These revision petitions have been preferred by the tenants
against whom two eviction orders dated 16.12.2005 have been passed by
the Rent Controller, Hisar in two separate eviction petitions filed by the
respondent-landlord and which have been further upheld by the Appellate
Authority, Hisar, vide two separate judgments dated 24.12.2007.
[3] In Civil Revision No.418 of 2008, the respondent-landlord
sought eviction of the petitioner-tenants, inter-alia, on the grounds that
they are in arrears of rent from 1.2.2001 and have sublet the demised
premises comprising a shop, in favour of the sub-tenant- now proforma
respondent Nos.2 & 3.
[4] In Civil Revision No.4037 of 2008, the respondent-landlord
sought the petitioners’ eviction on the ground that they are in arrears of
rent w.e.f. 1.9.1999 till the date of filing of the eviction petition and they
have sublet the demised premises to proforma respondent No.2 and that the
demised premises was required by the landlord for his bonafide personal
use and occupation, who after his retirement as a Branch Manager from the
Life Insurance Company w.e.f. 30.4.1998, wanted to start his own business
in the demised premises.
[5] The demised premises is a `shop’ forming part of the building
No.MCH-11/5-7, Block No.XVIII, situated near Guru Jambheshwar
Market, Mohalla Udai Purian, Hisar. According to the respondent-
landlord, the demised premises was let out to Puran Chand (since
deceased), and predecessor-in-interest of the petitioners w.e.f. 28.5.1984 at
a monthly rent of Rs.325/- besides house tax, vide rent note dated
C.R. No.418 of 2008 (O&M) 3
28.5.1984 (Ex.PW4/A). The respondent sought eviction of Puran Chand,
inter-alia, on the grounds that he was in arrears of rent w.e.f. 1.9.1999 and
has sublet the demised premises to Narinder Kumar, proforma respondent
No.2, without the written consent of the respondent-landlord. It was
averred that the demised premises is in exclusive possession of respondent
No.2 and his brother Hoshiar Singh-respondent No.3, who are running the
business under the name and style of M/s National Electric Company. In
the first eviction petition, the landlord further pleaded that he requires the
demised premises for his personal use and occupation as earlier he was
serving as a Branch Manager in the Life Insurance Company from where
he had retired on superannuation on 30.4.1998 and wanted to start his own
business of selling the greeting cards and stationery etc.
[6] Upon notice, the predecessor-in-interest of the petitioners as
well as the proforma respondents filed their joint written statements in both
the eviction petitions. While admitting the fact that the demised premises
was let out to Puran Chand vide rent note dated 28.5.1984, they denied that
the shop had been sub-let to Narinder Kumar-proforma respondent No.2 or
his brother. In the first eviction petition, it was pleaded that the shop was
still in exclusive possession of Puran Chand and that respondent No.2 is a
Motor Winding Mechanic who frequently visits the shop of Puran Chand
“for purchasing the copper wires and other goods for his business”. In the
second eviction petition also, the allegation of subletting was denied and in
respect of proforma respondent No.3-Hoshiar Singh (who was impleaded
in the second eviction petition only), it was averred that the he is a
C.R. No.418 of 2008 (O&M) 4
practicing lawyer in the District Courts at Hisar and had no concern with
the shop in dispute. It was reiterated that even after the death of the
original tenant-Puran Chand, the shop was still in exclusive possession of
his widow and two sons, namely, the present petitioners.
[7] It may be noticed here that since the arrears of rent for the
different periods mentioned in the two eviction petitions were tendered by
the tenants, the first ground of eviction, namely, non-payment of rent, did
not survive. Similarly, the Rent Controller did not accept the plea of the
respondent-landlord regarding his bonafide personal necessity for the shop
in dispute. The said finding has not been assailed by the respondent-
landlord. The Rent Controller as well as the Appellate Authority in both
the eviction petitions have, however, concurrently held that Puran Chand-
the original tenant and predecessor-in-interest of the petitioners, had sublet
the demised premises to proforma respondent Nos.2 & 3. The impugned
eviction orders have been passed on that count alone.
[8] The solitary question which arises for consideration, is as to
whether or not the original tenant (deceased Puran Chand) had sublet the
demised premises in favour of the proforma respondent Nos.2 & 3?
[9] I have heard S/Sh.Akshay Bhan and Pankaj Midha,
Advocates, counsel for the petitioners and Sh.B.R.Mahajan, Advocate,
counsel for the respondent-landlord at some length and perused the records
of the Courts below which have been summoned.
[10] In my considered view, there is over-whelming documentary
evidence on record to substantiate the plea of subletting, successfully
C.R. No.418 of 2008 (O&M) 5
proved by the respondent-landlord before the Courts below and resultantly,
no interference with the impugned orders is called for by this Court in
exercise of its revisional jurisdiction.
[11] There is indeed no dispute that the shop in dispute was let out
to Puran Chand (since deceased) vide rent note dated 28.5.1984
(Ex.PW4/A). In order to prove that Puran Chand, during his life time,
parted with the possession of the demised premises exclusively in favour
of respondent Nos.2 & 3, the respondent-landlord has produced on record
the statement of respondent No.3 dated 17.6.1997 (Ex.PW2/4), made
before the Sales Tax Authority to the effect that he is the proprietor of M/s
National Electric Company who runs its business from the shop in dispute.
He claimed himself to be a tenant under the respondent-landlord. The site
plan of the shop in dispute produced by respondent No.3 before the Excise
and Sales Tax Authorities, has also been brought on record (Ex.PW/2).
The original application Form submitted by respondent No.3 for obtaining
the Sales Tax No. of his firm, wherein also M/s National Electric Company
has been shown to be operating from the demised shop, has also been
produced (Ex.PW3/1). Similarly, the registration certificates issued to the
aforesaid firm under the Haryana General Sales Tax Act, 1973, at the
address of the demised premises, have been brought on record (Ex.P3/3
and Ex.P3/4). Likewise, the registration certificate issued under Section 7
(2) of the Central Sales Tax Act, 1956, issued on the same address, has
also been got exhibited (Ex.PW3/5). Respondent No.3 has also furnished a
surety bond at the time of obtaining the registration certificate, a copy
C.R. No.418 of 2008 (O&M) 6
whereof has also been got exhibited (Ex.PW3/7), besides a copy of his
affidavit dated 4.6.1997 (Ex.PW3/8).
[12] The aforesaid documentary evidence has a direct and material
bearing on the question of subletting, as it is the specifically pleaded case
of the respondent-landlord that the demised shop has been sublet by Puran
Chand, the original tenant (since deceased) to respondent Nos.2 & 3 who
are running their business therein under the name and style of M/s
National Electric Company.
[13] It appears that as soon as the first eviction petition was filed
and the proforma respondents realized that their own documents are likely
to support the plea of the landlord, respondent No.3 immediately moved an
application for cancellation of registration of the firm and submitted an
affidavit dated 28.3.2002 (Ex.PW4/B) before the Sales Tax Authority. The
landlord has also brought on record the Form ST-3, issued to M/s National
Electric Company on 9.9.1987 (Ex.PW4/C), as well as the Form-B, issued
by the Central Sales Tax Authority on the same date (Ex.PW4/D).
[14] Taking no chance, the respondent-landlord got appointed one
Virender Singh Malik, Advocate, as a Local Commissioner who after
visiting the demised premises, submitted his report dated 20.7.2000
(Ex.P4/E) wherein he has mentioned that two persons, namely, Hoshiar
Singh and Narinder Singh both sons of Mangat Ram (proforma
respondents) were found sitting and claimed themselves to be tenants in
the shop in dispute. The Local Commissioner further reported that there
was a sign-board of M/s National Electric Company in front of the shop in
C.R. No.418 of 2008 (O&M) 7
dispute.
[15] The respondent-landlord has also produced Ashok Kumar,
Photographer (PW1) who has categorically deposed that he was asked to
accompany Virender Singh Malik, Advocate-Local Commissioner and he
had taken the photographs on the asking of the Local Commissioner.
Suffice it to observe that these photographs also said to have depicted that
respondent Nos.2 & 3 were sitting in the shop in dispute. Mr.Gulzari Lal
Mittal, Inspector from the department of Excise and Taxation, appeared
(PW2) and proved the series of the documents referred to above. This
witness further deposed that M/s National Electric Company has now been
closed down on a written request to this effect alongwith his affidavit
given by respondent No.3. Mr.R.N.Sheoran, Excise and Taxation Officer
has been produced as PW-3 who remained posted as Assistant Excise and
Taxation Officer at Hisar in the year 1996-97. The said witness too has
testified the genuineness of the documents of the office record, referred to
above. The respondent-landlord himself has also stepped into the witness
box (PW-4) and deposed that Puran Chand-original tenant (since
deceased) had handed over the exclusive possession of the shop in dispute
to proforma respondent Nos.2 & 3 who are running the business there
under the name and style of M/s National Electric Company. The Local
Commissioner-Virender Singh Malik, Advocate, has also been produced
as PW5.
[16] As against it, the petitioner-tenants preferred to lead oral
evidence only. Petitioner No.2 Jaswant S/o late Puran Chand, appeared as
C.R. No.418 of 2008 (O&M) 8
RW-2 and has virtually conceded the claim of the respondent-landlord. In
his lengthy cross-examination, this witness has admitted that their entire
family was permanently residing at Bhiwani and their ration card has also
been issued at Bhiwani. He has conceded that the business activities in the
shop in dispute are being run under the name and style of M/s National
Electric Company. He has further admitted that he does not know as to
whether the shop is “single storied”, “double storied”, or “triple storied”.
He also does not know as to what is on the eastern or western side of the
shop. He does not know the rate of rent also. He has also admitted that at
the time when the Local Commissioner visited the shop, Hoshiar Singh,
Narinder Singh and a son of Narinder Singh were working at the shop.
There is, however, a bald assertion by the said witness that he alongwith
his other family members are still in possession of the shop in dispute.
[17] It may be noticed here that no documentary proof of any
business activities still being run by the petitioners from the demised
premises has been produced by them. Similarly, there is no evidence
whatsoever to show that there has been any business activity from the
demised shop other than what is being carried on by M/s National Electric
Company. The evidence clearly suggests that the legal heirs of the
deceased-tenant, namely, the petitioners, do not reside even at Hisar and
they are permanently settled at Bhiwani. It, thus, stands proved beyond any
doubt that the deceased-tenant Puran Chand during his life time had parted
with the possession of the demised shop and had handed-over the same
exclusively in favour of respondent Nos.2 & 3.
C.R. No.418 of 2008 (O&M) 9
[18] It is true that in order to prove subletting, the landlord must
prove the parting with possession by the tenant and that too for a valuable
consideration. So far as parting with the possession for valuable
consideration is concerned, it deserves to be noticed that the proforma
respondent Nos.2 & 3 are not even remotely related to the deceased-tenant
Puran Chand. It is not their case that they were inducted in the shop by
Puran Chand on account of any love and affection. The monetary
consideration, if any, behind handing over of the possession in favour of
the sub-tenant, is a secret arrangement between the tenant and the sub-
tenant to which the landlord can have no privy. Once the landlord proves
that a stranger has been brought into exclusive possession of the rental
premises and the original tenant has not retained even the legal possession,
the Rent Controller would be justified in law to draw an inference of
valuable consideration as the foundation of such transaction. The onus
would then be on the tenant to prove otherwise. In this regard, the
petitioners as well as the proforma respondents have miserably failed to
discharge the onus on them.
[19] No case of misreading of evidence or of any perversity in the
concurrent findings of fact returned by the Courts below, is made out on
behalf of the petitioners.
[20] For the reasons afore-stated, I do not find any merit in these
revision petitions which are accordingly dismissed but no order as to costs.
14-12-2009 (SURYA KANT) Mohinder JUDGE