JUDGMENT
G.S. Singhvi, J.
1. This petition under Section 15(5) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short ‘the Act’) is directed against judgment dated 13.12.1985 vide which Appellate Authority. Ambala City allowed the appeal filed by respondent No. 2 against the order of ejectment passed by Rent Controller, Ambala Cantt.
2. The petitioner purchased shop No. 353-C situated in R.A. Bazar, Ambala Cantt. from Shri Bawan Singh vide sale deed dated 3.11.1976. After 8-1/2 months, she filed an application under Section 13 of the Act for ejectment of the respondents on the ground of non-payment of rent and water charges since 3.11.1976 and also on the ground that respondent No. 1-Satpal had sub-let the shop to respondent No. 2-Raj Kumar. She averred that respondent No. 1 was a tenant under Shri Bawan Singh and was paying Rs. 20/- per month as rent apart from water tax and that after she had purchased the shop in question, he had become her tenant on the same terms and conditions. She further averred that respondent No. 1 had sub-let the tenanted premises to respondent No. 2 without the written consent of the landlord. She relied on judgments dated 4.1.1973 and 5.1.1974 passed by Sub Judge, Ambala Cantt. and Additional District Judge, Ambala, respectively in the suit filed by Shri Bawan Singh and averred that the concurrent finding recorded by the two Courts that respondent No. 1-Satpal was the tenant and respondent No. 2-Raj Kumar was sub-tenant is binding on them.
3. In the reply filed by him, respondent No. 1 denied that he was a tenant under Shri Bawan Singh in respect of the shop in question and averred that he was a surety of respondent No. 2 for payment of rent and in fact, he was the tenant. In his separate reply, respondent No. 2 averred that he was a tenant under the previous landlord and was paying Rs. 20/- per month towards rent and water tax. He further averred that respondent No. 1 has nothing to do with the tenancy of the shop in question. With regard to judgments dated 4.1.1973 and 5.1.1974, respondent No. 2 averred that the suit of Shri Bawan Singh was dismissed by the High Court vide judgment dated 11.12.1974 rendered in R.S.A. No. 327 of 1974 and, therefore, the finding recorded by the Courts below was not binding on him.
4. The petitioner filed replications to the replies of the respondents reiterating her plea that respondent No. 1 was the tenant and he had sub-let the shop without written consent of the landlord.
5. On the pleadings of the parties, the Rent, Controller framed the following issues (The issues are being reproduced from the original order of the Rent Controller):-
(1) Whether the respondent No. 1 is not a tenant and only a surety? OPR1
(2) Whether the respondent No. 2 is a direct tenant under the applicant? OPRII
(3) If issue No. 1 and 2 are not proved whether the respondents are not liable to be ejectment on the grounds mentioned in the application? OPA
(4) Relief.
6. Respondent No. 1 did not appear before the Rent Controller after framing of issues, but the other parties produced oral as well as documentary evidence.
7. On a consideration of the pleadings and evidence of the parties, the Rent Controller decided all the issues in favour of the petitioner and ordered the ejectment of the respondents. He held that the finding recorded in judgment dated 4.1.1973 passed by Sub Judge, Ambala Cantt. and judgment dated 5.1.1974 of Additional District Judge, Ambala that respondent No. 1-Sat Pal was the tenant and respondent No. 2-Raj Kumar was sub-tenant is binding on the parties. He further held that the evidence produced by the petitioner in the form of receipts Exhibits P4 to P17 and counter-foils Exhibits P18 to P20 which were duly proved by summoning the file of Civil Suit No. 188 dated 9.12.1971 filed by Shri Bawan Singh and the two judgments were sufficient to prove that respondent No. 1 was the tenant and he had sub-let the premises to respondent No. 2. He also held that respondent No. 1 has not made payment of arrears of rent and, therefore, he was liable to be evicted and being a sub-tenant, respondent No. 2 was also liable to be ejected.
8. The appeal filed by respondent No. 2 was allowed by the Appellate Authority. It held that the finding recorded by Sub Judge, Ambala Cantt. and Additional District Judge, Ambala in the suit filed by Shri Bawan Singh cannot operate as res judicata in view of the observations made by the High Court in its judgment dated 11,12.1974 passed in R.S.A. No. 327 of 1974-Raj Kumar Versus Shri Bawan Singh and another. He then discussed the evidence produced by the parties and held that the appellant (respondent No. 2 herein) was not a sub-tenant, but was a tenant under Shri Bawan Singh and there was no valid ground to order his eviction because he had deposited the rent due.
9. Shri Amar Vivek, learned counsel for the petitioner fairly stated that in view of judgment dated 11.12.1974 of the High Court in R.S.A. No. 327 of 1974, he cannot support the finding recorded by the Rent Controller that judgments and decrees dated 4.1.1973 and 5.1.1974 passed by Sub Judge, Ambala Cantt. and Additional District Judge, Ambala, respectively, would operate as res judicata on the issue of sub-letting of the tenanted premises by respondent No. 1 to respondent No. 2, but argued that the Appellate Authority committed a serious jurisdictional error by interfering with the finding of fact recorded by the Rent Controller. He submitted that the Rent Controller had examined the entire evidence produced by the parties including the receipts and vouchers produced by the witness of the petitioner and then recorded a firm finding that respondent No. 1 had sub-let the premises to respondent No. 2, but without assigning any cogent reason, the Appellate Authority reversed that finding. He read out the statements of the witnesses produced by the parties and argued that the factors, like long possession of the premises by respondent No. 2 and payment of tehbazari by him could not have been taken into consideration by the Appellate Authority for reversing the finding of the Rent Controller on the issue of sub-letting. He then submitted that the error committed by the Appellate Authority in appreciating the evidence raises a question of law within the meaning of Section 15(5) of the Act.
10. Shri T.R. Arora, learned counsel for respondent No. 2 argued that the finding recorded by the Rent Controller on the issue of sub-letting was based on an erroneous assumption that judgments dated 4.1.1973 and 5.1.1974 passed by Sub Judge, Ambala Cantt. and Additional District Judge, Ambala, respectively, operated as res judicata and the Appellate Authority did not commit any error by upsetting the same in view of the unequivocal observation made by the High Court in judgment dated 11.12.1974 that the finding recorded by the Courts below on issue No. 2 which related to sub-letting of the shop would not operate as res judicata. Shri Arora then argued that the Rent Controller had committed serious error in appreciating the evidence produced by the parties on the issue of sub-letting and submitted that the Appellate Authority rightly interfered with the said finding. He further argued that the ground of sub-letting was not available to Shri Kamla Devi for seeking ejectment of the respondents because the so-called sub-letting had taken place in 1967-68 and the provisions of the Act were made applicable to the Cantonments for the first time vide notification dated 1.5.1874 issued under Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957. In support of this argument, Shri Arora relied on the decisions of this Court in Surjit Singh v.Rattan Lal, A.I.R. 1980 P&H. 319 and of the Supreme Court in Gurcharan Singh v. V.K. Kaushal, 1981(1) S.C.R. 490 and Tirath Ram Gupta v. Gurbachan Singh and Ors., 1987(2) All India Rent Control Journal 369.
11. I have thoughtfully considered the respective arguments and carefully perused the record.
12. A careful reading of the order passed by the Rent Controller shows that he decided the issue of sub-letting against the respondents primarily on the basis of the judgments dated 4.1.1973 and 5.1.1974 passed by Sub Judge, Ambala Cantt. and Additional District Judge, Ambala, respectively in the case filed by Shri Bawan Singh. The Appellate Authority reversed this finding by making a reference to judgment dated 11.12.1974 (Exhibit RA) passed by the High Court in R.S.A. No. 327 of 1974. This is clearly borne out from the following observations made by the Appellate Authority in paragraph 13 of the judgment under challenge:-
“Here the matter stands settled by the observations of the High Court in its judgment copy Ex.RA. This judgment is between these very parties. Raj Kumar was appellant before the High Court. Bawan Singh, the predecessor in interest of Kamla Devi, was the respondent in that appeal and the dispute was regarding this very shop bearing No. 353-C, R.A. Bazar, Ambala Cantt. The material issue No. 2 in that case was whether defendant No. 2 (Raj Kumar) was a direct tenant under the plaintiff (Bawan Singh). No doubt, this issue was decided against Raj Kumar by the trial Court as also by the District Judge, but the suit was ultimately dismissed against Raj Kumar. The trial Court took the view that the Civil Court had no jurisdiction to pass a decree for eviction and it only rendered decree for the recovery of Rs. 260/- against Sat Pal, who was defendant No. 1 in the said case, Before the Additional District Judge, the matter was agitated as if, the suit had been decreed in entirety. The Additional District Judge, as per his judgment dated 5.1.1974 reversed the decree for the recovery of Rs. 260/- and maintained the decree for ejectment. This mistake was corrected by the High Court in its judgment copy Ex.RA and it was stated that as the suit against appellant Raj Kumar stood dismissed, his appeal was not competent. It was specifically ruled that the findings returned against Raj Kumar under issue No. 2 would not operate as resjudicata. This decision being inter parties is very much binding on them in the present case. The land-lady therefore, cannot urge that the decision in the earlier case holding Raj Kumar as sub tenant was resjudicata and binding upon him. The learned Rent Controller did not look into this aspect of the matter and his approach in deciding the controversy against Raj Kumar on the basis of the previous orders is, therefore, erroneous.”
13. This part of the impugned judgment has not been challenged by the learned counsel for the petitioner. Therefore, I do not find any valid ground to interfere with the conclusion recorded by the Appellate Authority that the finding recorded by the Courts below in Bawan Singh’s case on the issue of sub-letting would not operate as res judicata against the respondents.
14. I also agree with Shri T.R. Arora, learned counsel for respondent No. 2 that the Appellate Authority did not commit any error by interfering with the finding recorded by the Rent Controller on the issue of sub-letting. In arriving at the conclusion that respondent No. 1 was the tenant of Shri Bawan Singh and he had sub-let the shop in question to respondent No. 2, the Rent Controller relied on the statement made by the Special Attorney of Smt. Kamla Devi, who was none else than her husband-Shri Om Parkash Goyal and receipts Exhibits P4 to P16 and counter-foils Exhibits P18 to P20 produced in the suit filed by Shri Bawan Singh. However, he did not refer to the evidence produced by respondent No. 2. The Appellate Authority made a reference to the statement made by Raj Kumar, RW1-Shyama Devi, RW3-PanJia Lal, RW4-Hira Lal, RW6-Ishwar Parshad, RW7-Ram Lal, as also the evidence produced on behalf of the Smt. Kamla Devi and held that she had failed to prove the letting out of the shop by Bawan Singh to respondent No. 1 and the factum of sub-letting by him to respondent No. 2. The reasons assigned by the Appellate Authority for discarding the case set up by Smt. Kamla Devi are contained in paragraph 21 of the impugned judgment which reads as under:-
“On behalf of land-lady strong reliance was placed on the receipts copies Ex.P2 to Ex.P20. These were adduced in evidence through the statement of Om Parkash AW1. He looked at the original tagged in the summoned file and proved the copies Ex.P2 to Ex.P20. On behalf of Raj Kumar due objection was taken when these receipts were put in evidence. The objection as to mode of proof of the documents was kept open by the Rent Controller at the time of rendering the order under appeal. In fact, he simply made no mention of the objection raised at the time of production of these documents. All these documents are in Gurmukhi Script (Punjabi). Om Parkash frankly admitted that he was unable to read anything written in Punjabi. Thus, he cannot vouch safe the correctness of these documents. These are not copies of public documents to become admissible in evidence per se. Om Parkash did say that some of the receipts were written in his presence but he could not specify, which those receipts were. He did not sign any receipt as a witness. For these reasons, the documents Ex.P2 to Ex.P20 remain unproved and these cannot be taken into consideration against Raj Kumar. The Rent Controller thus, fell into error in basing his conclusions on these documents.”
15. In my opinion, the Appellate Authority did not commit any error by reversing the finding recorded by the Rent Controller that respondent No. 1 was tenant of the shop in question and he had sub-let the same to respondent No. 2.
16. The argument of Shri T.R. Arora also merits acceptance. In Surjit Singh v. Rattan Lal (supra), this Court considered the question whether the landlord can seek eviction of the tenant on the ground of sub-letting which had been effected before the enforcement of the Rent Control Legislation and answered the same in the negative by making the following observations:-
“It is well established that a new law affects future transactions and not past ones. No statute is given a retrospective operation so as to impair existing rights and obligations, unless it is specifically provided in it. This is, however, not true in the case of statutes dealing with procedures, which are retrospective in nature. From a plain reading of the section it is evident, the landlord could apply for ejectment of the tenant if he (tenant) after the commencement of the Rent Act without his written consent sublet the building. The words “after the commencement of this Act” (underlined by us to lay emphasis) are significant. These show that the legislature conferred right on the landlord to eject a tenant on the ground of subletting without his written consent in case the building was sublet after the commencement of the Rent Act. If it wished otherwise it could have specifically provided so. xx xx xx xx xx xx xx
After taking into consideration all the aforesaid reasons, we are of the opinion that a tenant, who validly sublet the building before coming into force of the Rent Act within the area of Chandigarh is not liable to ejectment after its enforcement on the ground mentioned in Section 13(2)(ii)(a). The question that a tenant, who illegally sublet the building before coming into force of the Rent Act, is liable to ejectment or not after the enforcement of the Rent Act, on the ground mentioned in Section 13(2)(ii)(a), has been left open by us.”
17. The same view was reiterated in Gurcharan Singh’s case (supra) and Tirath Ram Gupta’s case (supra). Paragraph 4 of the last mentioned judgment which contains a reference to the two previous decisions, reads as:
“Mr. Anil Dev Singh, learned counsel for the appellant sought to assail the order of the High Court on various grounds. The first ground was that the respondent second when had admitted the factum of the unauthorised sub-lease and when the Rent Controller and Appellate Authority had acted on his admission, the High Court was in error in interfering with the order of eviction concurrently passed by the courts below. This argument is devoid of merit because the admitted position is that the Act came into force in the area concerned only on 4.11.1972 whereas the sub-lease had been effected much earlier. In view of that position the High Court was entitled to set right the error committed by the Rent Controller and the Appellate Authority in ordering eviction under Section 13(2) of the Act. As a matter of fact the High Court was bound to set right the error in view of the its own decision in Surjit Singh v. Rattan Lal,] A.I.R. 1980 P&H 319 and this Court’s decision in Gurcharan Singh v. V.K. Kaushal, (1981)1 S.C.R. 490. In both these cases it has been laid down that an order of eviction cannot be passed under Section 13(2) of the Act if the sub-letting was prior to the Act coming into force in the area concerned.”
18. In the present case, it is an admitted position that the so-called sub-letting had taken place in 1967-68 and the provisions of the Act were made applicable to the Cantonments on 1.5.1974. Therefore, the petitioner, who had purchased the premises in 1976, cannot seek eviction of the respondents on the ground of sub-letting.
19. No other point has been argued. 20. For the reasons mentioned above, the revision petition is dismissed.