High Court Punjab-Haryana High Court

Smt.Shanti And Others vs Anand Dev And Others on 14 December, 2009

Punjab-Haryana High Court
Smt.Shanti And Others vs Anand Dev And Others on 14 December, 2009
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