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Harjit Singh vs Harbans Lal (Died) Lr By Smt. … on 3 May, 1991

Punjab-Haryana High Court
Harjit Singh vs Harbans Lal (Died) Lr By Smt. … on 3 May, 1991
Equivalent citations: AIR 1991 P H 217
Bench: N Kapoor


ORDER

1. The short question that arises for determination in this revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act (for short the Act) relates to the interpretation of S. 13(2)(v) of the Act which reads as under:–

“13(2) A landlord who seeks to evict his tenant shall apply to the Controller for direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied –

(v) that where the building is situated in a place other than a hill station, the tenant has ceased to occuy the buidling for a continuous period of four months without reasonable cause the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application.

2. The landlord filed a petition seeking eviction of the tenant on the grounds :–

(i) That the respondent has ceased to occupy the premises without any sufficient cause for the last 4 months (since May, 1984).

(ii) That because of the act and conduct of the respondent, the value and utility of the. building has progressively deteriorated.

(iii) That the building is in fact required by the applicant as well as his family members for their personal use and occupation.

 In pursuance of the notice issued by the Rent Controller, the tenant put in appearance and filed written    statement controverting the various allegations averred in the petition seeking eviction of the tenant. 
 

 3. On the basis of the pleadings of the parties, following issues were framed : 
   

 
1. Whether respondent is liable to be ejected on the grounds mentioned in para No. 2 sub-paras (a) to (c) of the petition? OPP. 
 

 2. Relief.  
 

The landlord though sought eviction on three grounds namely ceased to occupy, materially impairing the value and utility of the premises in dispute and personal requirement of the petitioner as well as that of his family members, yet confined the case to the only ground that is ‘ceased to occupy’ the premises in dispute. The landlord in support of his contention appeared himself in the witness box and deposed to the effect that premises remained unoccupied by the tenant since May 1984 i.e. for a period of approximately 7-8 months till the filing of eviction application on December 21, 1984. The tenant with a view to controvert the allegations made by the landlord appeared himself as RW 1. The tenant in all fairness admitted the fact that he left for England in the month of May 1984 to meet his son and his family members who are now settled there. The tenant further stated that he went to England on a tourist visa and had no intention to permanently stay with his son or to abandon the present accommodation in any manner. He further stated that during his absence his son and his family

members had been visiting the premises in dispute, staying there and taking all such acts which are normally expected of a person who is residing therein. Besides, he had given the keys of the house to one Shri Mulkh Raj Chopra who is also a tenant in the premises owned by the landlord for keeping the premises clean with the help of a sweeper. Shri Mulk Raj Chopra has also appeared as a witness and has supported the version of the tenant. Besides the oral evidence, the tenant placed on record the correspondence Ex. R, 1 to R6 as well as medical certificate (R1) issued by Dr. I. Win Pe Hounslow, Middlex to prove that the so-called non-occupation of the tenant as alleged by the landlord is for a sufficient cause. As per medical certificate issued by the doctor, Shri Hawrjit S. Bhathal — the tenant and Mrs. Surjit K. Bhathal, his wife, were under his treatment. According to his medical certificate, Shri Bhathal had been suffering from Insulin dependant, Diabetes, Mellitus and in addition thereto aslo developed high blood pressure. Mrs. Bhathal had been suffering from Chronic Bronchitis. As per the certificate, the doctor certified them to be fit to travel on the 22nd of February, 1985 only.

4. The Rent Controller, however, ignored the medical certificate for want of proof and thus found no justifiable reason for the tenant to remain away for a period exceeding four months. Besides this, the Rent Controller also found no merit in the plea of the tenant that his son has been visting the premises during his absence and the same would amount to occpuation of the tenant. The Rent Controller accordingly ordered the eviction of the tenant vide order dated Nov. 28, 1986.

5. Feeling dissatisfied with the order of the Rent Controller, the tenant filed an appeal and the same was also dismissed by the appellate authority for almost identical reasons. The appellate authority even has gone to the extent of observing that even if the medical certificate is deemed to be proved, the same does not advance the case of the tenant in any manner.

6. In this revision petition, learned counsel for the petitioner has assailed the findings

of the authorities below on the ground that the same is contrary to the judicial pronouncements in this regard and even the conclusions drawn are not borne out from the legal evidence recorded by the authorities below. The sole point for consideration is based upon the words “ceased to occupy”. Relevant portion from the judgment of Single Bench of this Court in Sat Parkash v. Shiv Lal (1991-1) 99 Pun LR 381 : (AIR 1991 Punj & Har 199), is as under (at p. 201 of AIR) :

“The expression “ceased” is not defined in the Act, In the Law Lexicon by Justice T.P. Mukherjee, the word “ceased” means to discontinue or put an end to.” In Stroud’s Judicial Dictionary by John S. James, the term “cease” is stated to apply to the case where the entire thing has ceased to be. Its only import is that tenancy has been put to an end once for all. The Legislature in its wisdom has allowed the landlord to seek eviction of the tenant on the ground that the latter had ceased to occupy the premises continuously for a period of four months without reasonable cause. The landlord has to prove that the tenant by his conduct has brought the tenancy to an end with that intention had discontinued the occupation of the demised premises.”

7. Admittedly in this case, the tenant left for England in the month of May 1984 on a tourist visa and returned to India sometime in the month of February, 1985. The eviction application was filed on December 21, 1984. This has also come in evidence that during the absence of the tenant, his son who is presently posted at Hoshiarpur had been occasionally visiting the house and the house has also been well looked-after and maintained by getting the same cleaned everyday as deposed by Shri Mulkh Raj Chopra, a tenant in the same building. Whether the building shall not be deemed to be in the occupation of a tenant when the same is looked after by his sons was subject-matter of adjudication in Balwant Singh v. Gurdial Singh reported as 1972 Cur LJ 135 (Punj & Har). The Hon’ble the Chief Justice Harbans Singh was pleaded to hold :

“That Section 13(2)(v) of the Act would not cover a case where the premises are continuously in use though the tenant himself does not stay there. At worst such a case might be

treated as one if the landlord is liable to establish the relevant facts where the tenant has transferred his lessee rights in favour of somebody else or that he has transferred the possession and use of the premises in favour of somebody else.”

Besides the provision under reference is “occupy” and not “residence”, the word “occupation and residence” are obviously not synonymous. As per Webster’s Third New Dictionary occupation means — “to take possession of, occupy, employ”. Black’s Law Dictionary (5th Edition) defines occupation — “Occupation, possession, control, tenure use, “The Supreme Court while interpreting the word “occupation” in terms of the provision of U. P. Urban Buildings Regulation of Letting Rent and Eviction Act, 1972 came to the conclusion that even letting the house by the owner would amount to an act of occupation. In Smt. Bimla Devi v. 1st Addl. District Judge (1984) 2 Rent CR 102 : (AIR 1984 SC 1376), the crux of the dispute revolved round the determination as to whether tenant had finally given up the idea of residing in his present place of living or that his absence from period exceeding the statutory limits was for a sufficient cause. What has to be seen is whether the tenant had any intention to return back and occupy the premises in dispute? This is what is called as animus revertendi.” As per facts of this case the tenant went on a tourist visa to meet his son and his family members and also returned after a gap of about 8/9 months. It has also come in evidence that the tenant had been regularly paying the rent due through the agency of his son and the son had also been depositing the electricity as well as water consumption charges during the absence of his father. Merely for the reason that the tenant has stayed away from the premises in dispute for more than the statutory permissible limit cannot itself be construed that his non-occupation is without any sufficient cause. The intention of the tenant to return back to India as well as to occupy the premises, the subject-matter of the present revision petition, is quite obvious from the tenor of letters which clearly record his anxiety as regards the proper maintenance of

the premises and his desire to return back to his native land. Both the Courts have clearly erred in law in discarding the sworn testimony of the tenant coupled with the documentary evidence adduced on record. I also find no reason to disbelieve the medical certificate placed on record mark R I. The authorities have not raised any doubt to the genuineness of the medical certificate Mark R. 1. The sworn testimony of Shri Harjit Singh is also to the effect that he was examined by the said doctor who gave the certificate Mark R-1. In these circumstances, the authorities ought to have considered the certificate and thereafter evaluated the sufficient cause set up by the tenant for his absence exceeding the statutory period. I find that the non-occupation of the building by the petitioner was for a sufficient cause. Besides this, there is proved acquiescence on the part of landlord inasmuch as he had been regularly receiving rent even after the alleged breach, i.e. ceased to occupy the premises for a period of about 4 months without any sufficient cause, the subject-matter of adjudication in this revision petition.

8. I thus accept this revision petition set aside the orders of the appellate authority as well as the Rent Controller and thus dismiss the eviction application. Parties to bear their own costs.

9. Revision allowed.

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