IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3623 OF 2001
Smt. Shashi Jain ..... Appellant
Versus
Tarsem Lal (Dead) & Anr. ..... Respondents
JUDGMENT
Lokeshwar Singh Panta, J.
1] This appeal by special leave has been filed by Smt. Shashi
Jain-landlady, assailing the final judgment and order dated
23.04.1998 passed by the High Court of Punjab and Haryana at
Chandigarh in Civil Revision No. 4062 of 1997.
2] The facts in brief giving rise to this appeal are as follows:-
2.1) On 24.07.1961, the mother of Smt. Shashi Jain-landlady-
appellant (hereinafter referred to as the “landlady”] had inducted
Tarsem Lal as a tenant in the premises, i.e. House No. 971,
Block-1 consisting of three rooms, one verandah, attached
courtyard, open space and latrine, etc. situated on Rajpura
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Road, Civil Lines, Ludhiana, on a monthly rent of Rs.30/- vide
written rent deed (Ex.-AW5/A]. On 12.11.1973, Khushi Ram
had submitted application Form D-1 in the office of the Civil
Supply Officer for getting ration card to his family members
namely Smt. Lajwanti – wife, Tarsem Lal, Janak Raj, Harbans
Lal, Kewal Krishan- sons and Avinash Kumari – daughter-in-law
who all were living together in the demised premises on
01.04.1970, mother of the landlady suffered a consent decree of
the court in regard to the demised premises jointly passed in
favour of the landlady and her brother. Because of non-
registration of the said decree, ownership rights could not be
transferred in the name of the landlady and her brother.
2.2) On 14.03.1974, the mother of the landlady preferred an
application for ejectment of Tarsem Lal-tenant on the ground of
arrears of rent w.e.f April 1973 to May 1974, which amount later
on was tendered by the tenant in the court. Again on
01.10.1974, the mother of the landlady had filed second
application for ejectment of the tenant for non-payment of rent
from June 1974 to October 1974.
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3) It was the case of the landlady before the Rent Controller
that the tenant did not tender the arrears of rent as claimed.
The Rent Controller, Ludhiana, passed an ejectment order
against the tenant. On appeal, the First Appellate Authority set
aside the said order and held that since the landlady and her
brother had already become the landlords of the demised
premises, therefore, Tarsem Lal has to be held a tenant under
them. The order of the First Appellate Authority was upheld by
the High Court of Punjab and Haryana on 11.04.1980. The
special leave petition preferred against the order of the High
Court came to be dismissed by this Court.
4) On 22.05.1982, the landlady had preferred an application
under Section 13 of the East Punjab Urban Rent Restriction Act,
1949 (hereinafter referred to as the “Rent Act”] for the ejectment
of Tarsem Lal-tenant, inter alia, on the following grounds:-
[a] That respondent no.1 was in arrears of rent
w.e.f. June 1974 onwards.
[b] That the respondent no.1 had converted the
demised premises into the residence of the family
of his married brother and sister, whereas it was
rented out to him for his personal residence.
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[c] That the landlady required the demised premises
for her own personal use and occupation and also
for use and occupation of her aged mother.
It appears from the record that later on by way of
amendment, additional ground was also
incorporated in the ejectment application, which
read as under:
[d] That the respondent no. 1 without the written
consent of the landlady had sub-let the demised
premises to Rakesh Kumar-respondent no. 2,
who is employed in Punjab Agricultural
University as a messenger boy.
5] It was also the case of the landlady before the Rent
Controller that Rakesh Kumar on 30.08.1983 had given a
declaration in writing to his Department that he is paying
Rs.150/- as monthly rent of the demised premises. Tarsem Lal
the original tenant had shifted his residence in two rooms
located at the backside of his `Dhaba’ (Restaurant]. Before that,
the father of Rakesh Kumar used to reside in the demised
premises and was drawing house rent from the Punjab
Agricultural University, where he was employed as Tube-well
Operator, in regard to the portion of the demised premises.
6) Tarsem Lal-tenant and Rakesh Kumar-respondent no. 2
herein both appeared before the Rent Controller on the date of
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hearing of the application and tendered arrears of rent which
amount was accepted by the landlady. The claim of non-
payment of rent, therefore, has been rendered satisfied.
7) Tarsem Lal-tenant filed written statement to the eviction
application raising inter alia preliminary objections: [i] there
exists no relationship of landlady and tenant between them,
[ii] Rakesh Kumar was not a necessary party and has been
wrongly impleaded in the eviction proceedings, [iii] the eviction
petition was bad for partial ejectment, [iv] bad for non-joinder
and mis-joinder of necessary parties and [v] that the landlady
could not take advantage of her own act and conduct. He
denied the averments of sub-letting of any portion of the
demised premises to Rakesh Kumar. He stated that Rakesh
Kumar was residing as a tenant in a portion of building bearing
no. 1138/2 situated in village Rajpura, Tehsil & District
Ludhiana and before that, he used to reside with him as a
licensee being his sister’s son. It was further asserted that since
the inception of tenancy, the mother of Rakesh Kumar had been
residing with him in the demised premises.
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8) On merits, the tenant denied the ownership rights of the
property in dispute of Smt. Santosh Kumari, mother of the
landlady. He has also denied the averments that mother of the
landlady had let out three rooms and a verandah to him on a
monthly rent of Rs.30/- from July 1961. According to the
tenant, he was in occupation of three rooms, verandah, open
space, one bathroom, one latrine and kitchen. It was denied
that any suit was filed by the landlady and her brother against
their mother Smt. Santosh Kumari for declaration, which was
later on decreed. The tenant, however, admitted that the
mother of the landlady filed the ejectment application against
him, which was allowed by the Rent Controller. The First
Appellate Authority set side the order of eviction passed by the
Rent Controller which was upheld by the High Court. He denied
the claim of the landlady that she bona fide requires the
demised premises for her personal use and occupation
alongwith her aged mother. He pleaded that the landlady is a
permanent resident of Chandigarh and she is in service of
Punjab School Education Board. It was also stated that the
landlady has got other residential buildings in Ludhiana town,
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which are in the possession of her brother and mother. He also
submitted that Rakesh Kumar his sister’s son was born in the
premises in dispute and he has not sub-let the demised
premises to Rakesh Kumar. He denied the averments of the
landlady that the father of Rakesh Kumar used to reside in the
demised premises when he was an employee of Punjab
Agricultural University, Ludhiana. It was, however, admitted
that Rakesh Kumar is employed in Punjab Agricultural
University, Ludhiana.
9) The landlady then filed re-application controverting and
contradicting the averments of the written statement filed by the
tenant and reiterating and re-ascertaining the averments made
in the application for eviction of the tenant. On the
controversial pleadings of the parties, the Rent Controller
framed following issues:
[1] Whether the petitioner requires the demised
premises bonafide for her own use and occupation?
OPA.
[2] Whether the demised premises are being used
for the purpose other than for which these were
leased? OPA.
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[3] Whether respondent no.1 without the written
consent of petitioner, has sub-let the demised
premises in favour of respondent no. 2? OPA.
[4] Whether there exists relationship of landlady
and tenant between the petitioner and respondent
no. 1? OPA.
[5] Whether the tender made is invalid? OPA.
[6] Whether the findings of the Hon’ble High Court
in Civil Revision No. 1096 of 1977 operate as res
judicata to the present petition OPR.
[7] Whether the respondent is estopped from
challenging the relationship in between petitioner and
respondent no. 1? OPA.
[8] Whether the petition is not maintainable as
alleged? OPR.
[9] Whether the petition is bad for partial
ejectment? OPR.
[10] Whether the petitioner is estopped by her act
and conduct to file the petition against respondent
no. 2? OPR.
[11] Whether the petition is bad for non-joinder of
necessary parties? OPR.
[12] Relief.
10) The parties went to trial and led their evidence. On the
main question of bona fide requirement of the demised premises
by the landlady for her own use and occupation, the Rent
9
Controller, Ludhiana, had not found the evidence of the
landlady appearing as AW-1 and supported by the evidence of
her mother- AW-5, reliable and acceptable. Therefore, the first
Issue was decided against the landlady and in favour of the
tenant. Issue Nos. 2, 3 and 5 were decided in favour of the
tenant and against the landlady. Finding against Issue No. 4
was recorded in favour of the landlady and against the tenant.
Issue No. 6 was not pressed by the tenant and therefore, it was
decided in favour of the landlady and against the tenant. In
view of the findings on Issue Nos. 4 and 6, Issue Nos. 7 and 8
were rendered as redundant. Issue No. 9 was not pressed by
the tenant and it was, accordingly, decided against him and in
favour of the landlady. The Rent Controller in view of the
finding on issue no. 3 held Issue No. 10 having become
redundant. The tenant did not press Issue No. 11 and therefore,
it was decided against him and in favour of the landlady. The
Rent Controller, on the basis of the findings recorded on Issue
Nos. 1 and 3, dismissed the petition of the landlady for eviction
of the tenant leaving the parties to bear their own costs.
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11) Being aggrieved against the order of the Rent Controller
dated 29.03.1995, the landlady filed appeal before the Appellate
Authority, Ludhiana. The Appellate Authority by its order dated
06.02.1997 dismissed the appeal with costs and thereby
affirmed the order of the Rent Controller. In addition, counsel
fee was assessed at Rs. 1,000/-.
12) Feeling aggrieved thereby, the landlady filed Revision
Petition under Section 15 [5] of the Rent Act before the High
Court. The learned Single Judge by order dated 23.04.1998
dismissed the said revision petition. The order of the High Court
reads as under:
“The petitioner seeks eviction of the respondent on
the ground that she bona fide requires the property in
question and the other ground pressed is that the
tenant-respondent no. 1 has sublet the property to
respondent no. 2.
Both the Rent Controller and the Appellate Authority
have returned the findings adverse to the petitioner.
The findings of facts by the courts are based on
evidence. They cannot be described to be erroneous
and absurd to permit this court to interfere in the
present Revision Petition. In these circumstances,
there is no ground to interfere. Revision Petition fails
and is dismissed.”
13) Now, the landlady has filed this appeal by special leave.
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14) During the pendency of this appeal, Tarsem Lal – tenant,
who was a bachelor expired on 17.07.1999. I. A. No.1 of 2000
has been filed by Janak Raj, Kewal Krishan – brothers and Satya
Devi – sister of deceased Tarsem Lal, praying for bringing them
on record as legal representatives of the deceased.
15) We have heard the landlady – appellant appearing in
person and argued the appeal and Mr. M.N. Krishnamani,
learned Senior Advocate appearing on behalf of Rakesh Kumar-
respondent no. 2 herein. Primarily and mainly following two
points have fallen for consideration of this Court:
[i] Whether the landlady-appellant has proved
on record that she bona fide requires the
demised premises for her personal use and
occupation? and[ii] Whether the deceased Tarsem Lal – the
tenant without the consent of the
landlady had sub-let the demised
premises to Rakesh Kumar-respondent
no.2.
16) We propose to scrutinize the evidence independently led by
the parties before the Rent Controller, before we deal with rival
contentions raised before us. This exercise on our part becomes
necessary to find out whether the authorities below in exercise
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of their statutory functions and jurisdiction have appreciated
the evidence properly and in right perspective or the vital
evidence led by the landlady in support of her case has been
ignored which has caused grave miscarriage of justice to her.
The above extracted order of the High Court reveals that the
Revision Petition of the landlady was dismissed mainly on the
ground that the Rent Controller as well as the Appellate
Authority both have rendered concurrent findings of facts;
therefore, no interference was called for in the said orders of the
authorities below. The order of the High Court does not deal
with the ground of challenge made by the landlady in her
revision petition and the contentions raised by the parties before
it, nor the order contains clear findings on the points in issue.
The High Court in exercise of its revisional jurisdiction ought to
have recorded its independent findings on merits after
considering all points raised by the parties before it based on
the assessment of the evidence by the authorities below.
POINT NO. 1
17] In support of her claim of bona fide requirement of the
demised premises, the landlady in her deposition as AW-1 has
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categorically stated that Tarsem Lal – tenant had shifted his
residence from the demised premises finally to a new residence
consisting of two rooms located at the back side of his `Dhaba’.
AW-5 the mother of the landlady corroborated her testimony.
The Rent Controller and the Appellate Authority rejected the
claim of requirement of the premises in dispute made by the
landlady on flimsy and untangible ground holding that the
landlady was residing at Mohali the place of her posting as a
teacher in Education Board. It was the specific case of the
landlady that she in fact was residing at Mohali in one room
because of her employment as a Government Servant and
occasionally she used to visit Ludhiana to look after her mother.
It was established by the landlady that had she got the
possession of the demised premises from the tenant when he
had shifted to his new residence located at the back side of the
`Dhaba’, she could have immediately occupied the premises and
started living along with her old mother therein. It is her
evidence that had she got the vacant possession of the demised
premises, she would have commuted from Ludhiana to
Chandigarh to attend her official duties as the distance between
14
these two places is neither far-off nor time consuming. The
tenant could not rebut and controvert the acceptable evidence of
the landlady on any material aspect. On the contrary, it finds
stated in paragraph 10 of the order of the Rent Controller that
the tenant and his brothers who appeared as RW – 7 and RW – 8
respectively, have admitted the said statement of AW landlady.
The Rent Controller and the Appellate Authority rejected the
claim of the landlady on the point of bona fide requirement, on
the other ground holding that the mother of the landlady is the
owner of one more house at Ludhiana, which was in occupation
of the brother of the mother of the landlady and the house could
be shared by the landlady and her mother. During the course of
the hearing of this appeal, the landlady has admitted before this
Court that she has since retired from the Government Service
and presently she is residing with her sister at Chandigarh and
now she intends to reside in her own house at Ludhiana. It has
been proved by the landlady that her mother being an old
woman has to be looked after by her in her house at Ludhiana.
The evidence led by the landlady clearly proves that Tarsem Lal,
had stopped living in the demised premises and as noticed
15
above he had shifted to his new residence located at the back of
his `Dhaba’. The landlady categorically stated in her statement
that a house owned by her parents located in Field Ganj,
Ludhiana is unfit and unsafe for habitation of landlady and her
aged ailing mother. The house is in dilapidated condition and
there exist no open space, no sun light and air in that part of
the area as the house is located near railway line and daily
smoke and dust of running trains will be very harmful and
injurious for the health of her mother who is a chronic patient of
Asthma and high blood pressure. It is also proved on record
that the landlady’s mother’s house situated at Shahpur is in
industrial area and is in possession of the tenants inducted by
the maternal uncle of the landlady. It is also proved on record
that the Rent Controller, Chandigarh has passed ejectment
order in regard to one room on the first floor of House No. 454,
Sector 15-A, Chandigarh, which was occupied by the landlady at
the time of her employment in Government job at Mohali.
18] It is not in dispute that Tarsem Lal – tenant was an
unmarried man and during the pendency of this appeal he has
died. The landlady has pleaded and proved by leading reliable,
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positive and acceptable evidence that she is in urgent need of
the demised property for her bona fide use and occupation in
terms of Section 13 (3)(a)(i)(a) of the Rent Act.
POINT NO.2
19] In support of this point, the landlady has proved on record
that Shri Satpal, father of Rakesh Kumar-respondent had
shifted in the demised premises along with his family members
about ten years after Chinese aggression in the year 1973-74
and then Shri Satpal got employment in Punjab Agricultural
University at Ludhiana as Tubewell Operator. The Rent
Controller as well as the First Appellate Authority have not
properly appreciated the evidence of the landlady and wrongly
concluded that Rakesh Kumar – respondent became sub-lessee
in the year 1973 without appreciating and considering the fact
that in the year 1973 Rakesh Kumar was a minor and could not
execute agreement of tenancy. It was the specific case of the
landlady that Rakesh Kumar was inducted as sub-tenant by
Tarsem Lal in the year 1983 after Rakesh Kumar on the death of
his father Satpal got employment in Punjab Agricultural
University, Ludhiana. It is proved on record that Tarsem Lal
17
had parted with the possession of two rooms and verandah of
the demised premises to Rakesh Kumar – respondent for a
consideration of Rs. 150/- per month as rent. The landlady has
proved on record pro forma D-1 prescribed for the employees of
Punjab Agricultural University, Ludhiana, for drawal of the
house rent allowance (Ex. AW/1a) which would prove that
Rakesh Kumar – respondent has been drawing a sum of Rs.
150/- per month as rent for unfurnished accommodation of the
demised premises. Application Form D-1 dated 12.11.1973
prescribed for distribution card of food grain and sugar
submitted by Khushi Ram father of Tarsem Lal was
acknowledged on 29.07.1975 by a Clerk in the Office of the Food
Supply, Ludhiana. On bare perusal of Ex. AW-1/1 produced on
record by the landlady, it becomes crystal clear that Khushi
Ram, his wife Lajwanti, Tarsem Lal, Janak Raj, Kewal Krishna –
sons and one Avinash Kumari – daughter in law of Khushi Ram
were living in the demised premises. Further document – D1
would show that Rakesh Kumar – respondent was not residing
with his mother in the demised premises since the inception of
the tenancy as held by the Rent Controller in his order. The
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Appellate Authority, in our view, has failed to apply its
independent mind and merely stamped the order of the Rent
Controller without giving independent reasons for upholding the
said order. The statement of Tarsem Lal that his sister and her
son Rakesh Kumar – respondent were living with him at the
time of inception of the tenancy has been wrongly relied upon by
the Rent Controller which is contrary to the documentary
evidence Form D-1 attached with (Exhibit AW 1/1). The Rent
Controller and the Appellate Authority as well as the High Court
have gravely erred in not appreciating and considering the fact
that payment of rent by a sub-tenant to the tenant is always a
secret arrangement between them and as stated above, Rakesh
Kumar – respondent has been receiving a sum of Rs. 150/- per
month as rent from his employer of the demised premises. The
statement of Smt. Satya Devi – RW 5, sister of Tarsem Lal that
she was residing with her son in the demised premises since
1961 has been wrongly accepted by authorities below as her
statement too is wholly contrary to the documentary evidence
Form D1 placed on record and proved by the landlady along
with Ex. AW1/1. Satnam Rai – RW 7, the Sub Inspector of Food
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and Supplies Department has proved on record Form Ex. RW
7/1, Certificate Exhibit RW 7/2, entries from register Ex. RW 3,
Exhibit RW 7/4 and ration card Exhibit R-8 which would prove
that in the year 1973, Tarsem Lal- tenant was residing in the
demised premises along with his father and brothers etc. whose
names find mentioned in form D-1. Thus, the documentary
evidence on record, belies the oral version of Tarsem Lal and his
sister Satya Devi-RW 5 that Rakesh Kumar was residing in the
house in dispute along with her right from the day of his birth
i.e. 27.11.1962 till the application for eviction of the tenant was
filed by landlady before the Rent Controller in the year 1982.
20] In the backdrop of the above stated evidence led by the
landlady, the plea of the appellant that Tarsem Lal had sublet
the premises in dispute to Rakesh Kumar without her written
consent has been proved by her by leading reliable and
convincing evidence. In the facts and circumstances, Rakesh
Kumar – respondent is held to be liable to be evicted from the
demised premises in terms of the provisions contained in
Section 13(2)(ii)(a) of the Rent Act. The Rent Controller as well
as the First Appellate Authority have failed to appreciate the
20
evidence of the landlady in right perspective. The High Court in
exercise of its revisional jurisdiction has power to satisfy itself as
to whether the question of subletting which is a question of law
was properly decided by the courts below based on the evidence,
but the order shows that the High Court has legally failed to
exercise its revisional jurisdiction in dismissing the revision
petition of the landlady without assigning independent reasons
and also not taking into consideration the perversity and
infirmity of the order of the Rent Controller as confirmed by the
Appellate Authority based upon misreading and mis-
appreciation of the evidence on record. This Court in exercise of
its jurisdiction in this appeal will not be over-reaching its power
in appreciating the evidence on record to find out whether the
order of the authorities below as confirmed by the High Court
are perverse not based upon proper and legitimate appreciation
of the evidence on record led by the landlady which orders have
caused miscarriage of justice to the landlady.
21] The contention of Mr. M.N. Krishnamani, learned senior
counsel appearing for Rakesh Kumar – respondent that this
Court shall not be obliged to interfere with the concurrent
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findings of fact arrived at by the three courts below cannot be
accepted for the aforesaid reasons.
22] In the result, this appeal deserves and it is, accordingly,
allowed. The order of the Rent Controller, Ludhiana, dated
24.03.1995 passed in RA No. 71 and order of the Appellate
Authority, in Rent Appeal No. 2/21-4/1995 dated 6.2.1997 as
well as the unreasoned order of the High Court dated 23.4.1998
passed in Civil Revision No. 4062/1997 are all quashed and set
aside. As a consequence thereof, the application for eviction of
Rakesh Kumar – respondent, son of Satpal filed by the land lady
– appellant under Section 13 of the Rent Act is accordingly,
allowed on the grounds available to her under Section 13(3)(a)(i)
(a) and Section 13(2)(ii)(a) of the Rent Act.
23] The landlady, therefore, is held entitled for eviction of
Rakesh Kumar – respondent from the suit premises. Rakesh
Kumar and/or any other person claiming any right, title or
interest in the demised premises are directed to hand over the
vacant possession of the premises in dispute to Ms. Shashi Jain,
the landlady on or before 31st May, 2009. In default thereof,
Rakesh Kumar – respondent shall pay a sum of Rs. 500/- per
22
day as mesne profits for unauthorized use and occupation of the
demised premises after the stipulated day of 31st May, 2009 till
the day the vacant possession is not handed over to the
landlady.
24] Rakesh Kumar – respondent shall also pay costs of
Rs. 5000/- to the landlady.
I. A. No. 1 of 2000
25] In view of the final disposal of the appeal on merits, no
order is required to be passed on this application seeking
substitution of the legal representatives of Tarsem Lal –
deceased.
………………………………….J.
(Lokeshwar Singh Panta)
………………………………….J.
(B. Sudershan Reddy)
New Delhi,
March 31, 2009.