Nirmala Wati vs Shri Ved Parkash on 13 August, 1999

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78
Punjab-Haryana High Court
Nirmala Wati vs Shri Ved Parkash on 13 August, 1999
Equivalent citations: (2000) 124 PLR 195
Author: R Anand
Bench: R Anand


JUDGMENT

R.L. Anand, J.

1. This is a landlord’s revision and has been directed against the judgment dated 25.11.1932 passed by the Appellate Authority, Gurdaspur, who affirmed the order dated 1.10.1981 passed by Rent Controller, Batala, who dismissed the ejectment petition of Nirmala Wati under Section 13 of the East Punjab Urban Rent Restriction Act (hereinafter called ‘the Act’)

2. The brief facts of the case are that landlady Nirmala Wati filed eviction application before the Rent Controller for the eviction of respondent-tenant on the allegations that she leased out two adjoining shops to the respondent on a monthly rent of Rs. 80/-vide rent note dated 11.3.1967. The tenant committed default in the payment of the rent for a period of seven years before the filing of the application. It was further alleged by the landlady that during two to three years before the institution of the petition, the respondent ceased to occupy the demised shops and the shops had not been used in a good-husband-like manner. The tenant had materially damaged the floors and walls of the shops.

Notice of the petition was given to the respondent. He admitted that he was a tenant under the landlady. Originally, he occupied two shops but he vacated one shop on 1.11.1978 and handed over the possession to the husband of the landlady and thus since 1.11.1978 he was in possession of one shop which adjoins Ambika Foundry and Allied Industries on a monthly rent of Rs. 40/-. The claim of the landlady that rent was in arrears for seven years was also contested. According to the respondent, he had cleared all the arrears of rent upto 1.11.1978 with regard to bath the shops and thereafter qua the shop which remained under his tenancy he had paid the rent at the rate of Rs. 40/- per month till June, 1979. On the first date of hearing? he tendered the rent only qua one shop and that too from June, 1979. According to th’6 respondent, the shop under his occupation is being used regularly for business purpose both by him and his son Prem Kumar. The respondent also denied that he had impaired the value and utility of the shop. According to the, respondent, the floor of the shop, which is in his possession, is quite in order and the condition of the walls is also good.

3. From the above pleadings of the parties, the learned Rent Controller framed the following issues at the first instance :-

1. Whether there, is relationship of landlord and tenant between the parties? OPA

2. Whether the respondent is liable to ejectment on the grounds mentioned in the petition? OPA

3. Relief.

4. The parties led oral and documentary evidence in support of their case and the learned Rent Controller held that there is a relationship of landlord and tenant between the parties vis-a-vis only one shop and the possession of other shop was handed over to the landlady through her husband. Issue No. 2 decided against the landlady and the petition was dismissed.

5. Aggrieved by the order of the Rent Controller, the landlady filed appeal before the Appellate Authority, Gurdaspur, who came to the conclusion that the issues which were framed by the Rent Controller had not been happily worded and thus re-casted the issues as follows:-

1. Whether respondent has vacated one of the demised shops on 1.11.78 at the instance of the applicant’s husband. If so to what effect? OPR

2. Whether the tender is valid? OPR

3. Whether the respondent ceased to occupy the demised shops continuously for a period of more than four months immediately before the filing of the eviction application without reasonable cause? OPA

4. Whether respondent has committed such acts as are likely to impair materially the value and utility of the demised shops? OPA

5. Relief.

6. After re-casting the issues, the file was sent to the Rent Controller with the direction to make further inquiry and afford opportunity to both the parties to lead evidence and then to return findings on the issues which were framed by the Appellate Authority. The parties again appeared before the Rent Controller and led evidence. The report of the Rent Controller was sent to the Appellate Authority, who again assessed the entire evidence on the record and came to the conclusion under issue No. 1 that respondent-tenant had vacated one of the shops on 1.11.1978 at the instance of the applicant’s husband and as a result of which the rent of one shop, which was in possession of the tenant, became Rs. 40/- per month as agreed upon between the parties and the landlady had inflated her claim of rent. The Appellate Authority also held under issue No. 2 that the tender which was made by the tenant was a valid one. Issue No. 3 was decided against the landlady by holding that the tenant has not ceased to occupy the demised premises. Issue No. 4 was decided against the landlady. This issue was not even pressed by the land-lady before the Appellate Authority as a result of which the order of the Rent Controller was affirmed and the ejectment petition was dismissed. Aggrieved by the findings of the Rent Controller as well as the Appellate Authority, the present revision.

7. I have heard the learned counsel for the parties and with their assistance I have gone through the records of this case.

8. As stated above, the case set up by the landlady was that both the shops are in possession of the tenant at the rate of Rs. 80/- that the tenant has committed default in the payment of rent he has ceased to occupy the premises for a continuous period of 2/3 years before the institution of the ejectment application without any sufficient cause, and, therefore, he is liable to be ejected. On the contrary, the stand of the tenant is that he evicted one shop on 1.11.1978 and handed over the possession of the same to the husband of the landlady at the instance of the landlady and thus he was in possession of only one shop. The rate of rent was Rs. 40/- per month and that he had paid the rent of both the shops upto 1.11.1978, and thereafter he had even paid the rent of one shop upto 31.5.1979. On the first date of hearing he tendered the rent only qua one shop w.e.f. 1.6.1979 at the rate of Rs. 40/- per month. In these circumstances, the point for determination before me would be whether the tenant had vacated one of the shops on 1.11.1978, as alleged by the tenant and if so, whether the shop which remained in the possession of the tenant was at the rate of Rs. 40/- per month by way of rent. In para No. 3 of the ejectment petition, the landlady has averred that the respondent got the electric connection installed in one of the shops for running a workshop with her permission on the express undertaking that at the termination of the tenancy the tenant would leave the electric connection intact for her use and benefit, but the respondent in violation of this undertaking had got the electric connection severed.,On the contrary, the stand of the tenant is that he is still utilising the 5 H.P. electric connection and the electric connection ia the shop, which was got vacated by him, was disconnected. From the records of the lower court it stands proved that there were two electric connections. One had consumer meter No. A.9/168 and the other had consumer meter No. A.9/207. It also stands proved on the record that consumer meter No. A.9/168 was shifted somewhere in the month of September or October, 1978 from the premises of Bharat Cottage Industries to some place on Batala-Jullundur road and so far as consumer meter No. A.9/207 was concerned, it was in the name of Brij Mohan and that came into existence on 14.7.1972 and is continuing upto date. The witness i.e. Harbans Lai RW4, has also fixed the premises in which the above said meter was installed by stating that it was installed opposite the Modgil Company. The Appellate Authority, in these circumstances rightly came to the conclusion as follows:-

“From the documentary evidence coupled with the deposition of the tenant it is clearly spelled out that both the shops, which were originally leased out to the respondent-tenant, had separate electric connection. It is a common case between the parties that electric connection of the one of the shops was severed. This is also corroborated by the record of the PSEB. The electric connection is intact qua the second shop and is in the name of Brij Mohan son of the respondent. It is case of landlady that she permitted the respondent-tenant to obtain electric connection of running a (workshop. She has further alleged that respondent-tenant has violated the condition of leaving the electric connection intact for her benefit at the time of vacating the premises. This clinchingly proves the contention of the tenant that he had vacated one of the two shops originally rented out to him. The electric connection was in his name and while vacating the premises it was only natural for him to inform the PSEB authorities so that even after vacation they may not continue billing him for the use of the energy.”

Thus, this Court is inclined to affirm the findings of both the courts below that one shop was vacated by the tenant w.e.f. 1.11.1978 and the possession was given to-the landlady through her husband. This automatically leads to an inference that the rent of the other shop cannot remain Rs. 80/- per month once the tenant had vacated the delivered the possession of one shop to the landlady. In these circumstances, it has to be inferred for the benefit of the tenant that the rent of the shop which remained in the possession of the tenant w.e.f. 1.11.1978 onwards was Rs. 40/- and when the landlady had claimed rent @ Rs. 80/- per month vis-a-vis two shops inspite of the fact that she had got one shop vacated, it was a false and inflated one and such a landlady cannot be believed, who has not come in the witness-box. Inspite of the fact that she had cordial relations with her husband, she appointed her attorney Sushil Kumar, who could not depose about the entire facts of the case. There were certain facts which were within the knowledge of the landlady. She did not want to face the cross-examination of the tenant and, therefore, she conveniently appointed an attorney on her behalf so that he may be able to make the statement. When a person, who has special knowledge of certain facts, does not come in the witness-box to rebut the allegations of the opposite party, an adverse inference has to be drawn against such a person. It is the law of the land that a litigant is supposed to produce the best evidence in his possession.

9. The case of the landlady is that if the possession of one shop had been delivered to her w.e.f. 1.11.1978, there was hardly any necessity on her part to seek the ejectment of two shops on the ground of ceased to occupy. There is no difficulty in disproving this case of the landlady. When the two shops were rented out, those were rented out through a rent-note and when the possession of one shop was given on 1.11.1978 there was no writing. In these circumstances the landlady must have thought proper in her favour to make an inflated claim so that the tenant may not claim the possession even with regard to that shop which he had vacated earlier. Thus, I feel that this contention of the landlady is also totally devoid of any merit.

10. It was then the case of the landlady that even if it is assumed for the sake of arguments that the tenant is in possession of one shop w.e.f. 1.11.1978, still he has to prove that he had paid the rent @ Rs. 40/- per month from this date upto the date of the filing of the petition. The case of the landlady further is that as per the stand of the tenant, he paid the rent upto 31.5.1979 and then he tendered the rent in the Court from 1.6.1979. There is no proof that the tenant had paid the rent for seven months @ Rs. 40/-even starting from 1.11.1978 to 31.5.1979. This argument is also devoid of any merit. I have already stated above that the landlady is not a honest citizen. She at the first instance had tried to involve two shops by way of tenanted premises. She tried to claim rent @ Rs. 80/- per month in spite of the fact that she had got the possession of one shop on 1.11.1978. No tenant would like to suffer the ejectment for a sum of Rs. 280/-, because if we calculate the rent from 1.11.1978 to 31.5.1979, it will come to Rs. 280/- for a period of seven months. On the contrary, the stand of the tenant is that he had been paying the rent of the shop. It is true that the tenant has not been able to procure any receipt from 1.11.1978 to 31.5.1979, but in view of the overwhelming evidence led by the tenant, it can be reasonably inferred that the tenant has paid the rent upto 31.5.1979.

11. So far as the third ground of the landlady is concerned that the tenant had ceased to occupy the premises, this is too not tenable. The major reliance of the landlady is upon the statement of Tilak Raj AW3, who deposed that the respondent-tenant is employed in his factory since 1976 and his duty hours are 9.00a.m. to 5.00p.m. Also reliance was placed on two statement of Ram Parkash AW4, who deposed that the shops in question are lying locked for the last 3/4 years. However, Tilak Raj stated in the cross-examination that respondent-tenant is also doing his own business under the name and style of Bharat Cottage Industries. This is in consonance with the stand of the tenant, who stated in the written statement that he and his son are doing joint business in the demised shop. The official of the Punjab State Electricity Board also stated that the electric connection installed in the demised shop under the occupation of the respondent is intact and they are getting regular readings of the matter. Thus, there is sufficient evidence on the record to show that the tenant has not ceased to occupy the shop which was in his possession w.e.f. 1.11.1978.

Thus, I affirm the findings of the Appellate Authority on all the issues and seeing no merit in this revision dismiss the same.

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