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Ram Asra Hari Chand Vs. Tara Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 212 of 1981
Judge
ActsHimachal Pradesh Urban Rent Control Act, 1971 - Sections 14(2), 21(1) and 21(5)
AppellantRam Asra Hari Chand
RespondentTara Chand and anr.
Appellant Advocate Kedar Ishwar, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionPetition allowed
Cases ReferredBalwant Singh v. Gurdial Singh
Excerpt:
- .....14 of the himachal pradesh urban rent control act, 1971 (hereinafter called the act) with the rent controller, simla, seeking eviction of m/s. ram asra hari chand shopkeepers through hari chand proprietor/partner (tenant-respondent no. 1) from shop no. 2. vishnu bhawan, sanjauli, simla-6. m/s. haji chand amar math halwai were impleaded as respondent no. 2 on the ground that respondent no. 2 was in possession of the premises as a sub-lessee of respondent no. 1 (tenant). in this judgment the landlord will be mentioned as petitioner, tenant as respondent no. 1 and alleged sub-tenant as respondent no. 2. 2. the grounds of eviction were that (a) the tenant/respondent no. 1 was in arrears of rent, and (b) the tenant/respondent no. 1 had ceased to occupy the premises for a continuous.....
Judgment:
ORDER

V.P. Gupta, J.

1. An eviction petition was filed on 11th July, 1978 by Tara Chand Landlord/petitioner) under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter called the Act) with the Rent Controller, Simla, seeking eviction of M/s. Ram Asra Hari Chand Shopkeepers through Hari Chand proprietor/partner (tenant-respondent No. 1) from Shop No. 2. Vishnu Bhawan, Sanjauli, Simla-6. M/s. Haji Chand Amar Math Halwai were impleaded as respondent No. 2 on the ground that respondent No. 2 was in possession of the premises as a sub-lessee of respondent No. 1 (tenant). In this judgment the landlord will be mentioned as petitioner, tenant as respondent No. 1 and alleged sub-tenant as respondent No. 2.

2. The grounds of eviction were that (a) the tenant/respondent No. 1 was in arrears of rent, and (b) the tenant/respondent No. 1 had ceased to occupy the premises for a continuous period of over twelve months. Other grounds were of subletting and converting the use of the shop premises into a godown/store and also for causing nuisance to the dwellers in the neighbourhood and for having impaired the value and utility of the shop premises.

3. The eviction petition was contested by both the respondents. All the allegations made in the eviction petition were denied

4. The Rent Controller framed the following issues on 21st September, 1978:

'1. Whether the petition is not in accordance with the rules as alleged?

OPR.

2. Whether the petition is not properlyverified as alleged?

OPR.

3. Whether there is misjoinder of parties as alleged, if so, its effect?

OPR.

4. Whether the respondent No. 1 has sublet or transferred the premises in respect of respondent No. 2 as alleged?

OPP.

5. Whether the respondent No. 1 is inarrears of rent as alleged?

OPP.

6. Whether the respondent No. 1 hasceased to occupy the premises in disputeas alleged?

OPP.

7. Whether the respondent has converted the user of the premises in disputewithout the written consent of the petitioner as alleged in petition?

OPP

8. Whether the respondent No. 1 has committed, such acts as are likely to impair materially the value and utility of the premises in dispute as alleged?

OPP.

9. Whether the respondent No. 1 isguilty of such acts as are nuisance to theoccupiers of the building of the neighbourhood as alleged?

OPP.

10. Whether a notice terminating thetenancy was required to be served on therespondent?

OPR.

11. If issue No. 10 is proved, whethersuch a notice was served on the respondent?

OPP.

12. Relief.'

5. After discussing the evidence the Rent Controller decided issues Nos. 1, 2, 3, 5, 10 and 11 in favour of the landlord/ petitioner. The remaining issues Nos. 4, 6, 7, 8, and 9 were decided against the landlord/petitioner. As a result of the finding on issue No. 5, the Rent Controller vide his order, dated 28th February, 1981, passed an order of ejectment against respondent No. 1. The order was executable after expiry of thirty days, because the tenant/respondent No. 1 could deposit the rent due within thirty days of the order under the statutory provisions.

6. The landlord/petitioner was not satisfied with the findings of the Rent Controller. He challenged, the findings by filing an appeal in the court of District Judge (who is the Appellate Authority under the Act). The landlord/petitioner challenged the foldings of the Rent Controller on issues Nos. 4, 6, 7, 8 and 9. On issue No. 6 the Appellate Authority gave a finding that the tenant/respondent No. 1 had ceased to occupy the premises for a continuous period of more than twelve months without reasonable cause. In view of this finding the appeal of the landlord/petitioner was partly allowed and the tenant/respondent No. 1 was held to be liable to be evicted from the premises on this ground vide order, dated 7th September, 1981.

7. Feeling aggrieved from this order of the Appellate Authority the tenant/ respondent No. 1 has now filed this revision petition.

8. Shri Kedar Ishwar, the learned, counsel for the tenant/respondent No. 1 raised two contentions:

(a) That the landlord/petitioner had no right to file an appeal against the order of the Rent Controller dated 28th February, 1981 because the Rent Controller had allowed the petition of the landlord-petitioner.

(b) That the decision of the Appellate Authority on issue No. 6 is patently wrong and is based upon misreading of the evidence.

The learned counsel referred to the statements of the witnesses produced by the parties and contended that the disputed premises were not locked and were in occupation of the tenant/respondent No. 1. It was contended, that the Appellate Authority has given self contradictory findings.

9. Shri Chhabil Dass, the learned counsel for the landlord/petitioner contended that the landlord/petitioner had a right of appeal under Section 21 of the Act because the landlord-petitioner was a person aggrieved from this order. Regarding the finding on issue No. 6, it was contended that the same was final and could not be challenged in revision and the findings were based upon proper appreciation of the evidence.

10. I have considered the contentions and have also gone through the records.

11. Section 21 of the Act provides for filing an appeal or revision against the order of Rent Controller. Section 21 reads as follows.

'21. Vesting of appellate authority on officers by State Government.-- (1) (a) The State Government may, by a general or special order, by notification confer on such officers and authorities as they think fit, the powers of appellate authorities for the purposes of this Act, in such area or in such classes of cases as may be specified in the order.

(b) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order or such longer period as the appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the period of fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded.

(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal.

(3) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller.

(4) The decision of the appellate authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of Law except as provided in sub-section (5) of this section.

(5) The High Court may at any time, on the application of any aggrieved party or on its own motion call for and ex-amine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.

12. An appeal can be filed by 'any person aggrieved' by an order passed by the Controller. It is, therefore, to be decided as to whether in this case the landlord/petitioner was a 'person aggrieved' or not.

13. The expression 'person aggrieved' in fact means a person who has suffered a legal grievance, i.e. a person against whom a decision has been pronounced, which has lawfully deprived him of something or wrongfully refused him something or wrongfully affected his title to do something.

14. In the present case the landlord/ petitioner sought the eviction of the tenant on several grounds and one of the grounds was the non-payment of rent. The Rent Controller decided all the grounds. against the landlord/petitioner but decided the ground of non-payment of rent in favour of the landlord/petitioner. Under Section 14 of the Act, a tenant shall not be ejected as a result of an order of ejectment on the ground of non-payment of rent due from him if he pays the amount due within a period of thirty days from the date of the order of ejectment. The order of ejectment against the tenant becomes unexecutable if the amount of rent due from a tenant is deposited within the statutory period of thirty days. In the present rase because the order of ejectment was passed on the ground of non-payment of rent, therefore, this order could be nullified by deposit of the arrears of rent within the statutory period, of thirty days. In such a case the relief of eviction sought by the landlord on other grounds was, in fact, disallowed. The landlord/petitioner pleaded many grounds for ejectment and led evidence on all the grounds of ejectment. The landlord/petitioner in the present case was definitely a 'person aggrieved' from the order of the Rent Controller as he was not granted relief of ejectment on other grounds.

15. In view of what has been stated above, the first contention of the learned counsel for the tenant/respondent is not accepted and I hold that the landlord/ petitioner could, appeal from the order of the Rent Controller, dated 28th February, 1981.

16. The second contention of the tenant/respondent No. 1's counsel has some force. Under Section 21 (5) of the Act, this Court can satisfy itself about the legality or the propriety of the order or the proceedings.

17. The main contention of the learned counsel for the tenant/respondent No. 1 is that the order of the Appellate Authority is self contradictory and the provisions of Section 14 (2) (v) of the Act are not attracted, i.e. it is not proved that the tenant/respondent No. 1 has ceased, to occupy the disputed premises for a continuous period of twelve months without reasonable cause.

18. It is agreed that the ground of subleting is not proved. The finding on issue No. 4 was not assailed. The Rent Controller and the Appellate Authority have also given concurrent findings on issue No. 4.

19. In para 3 of the eviction petition it is alleged that the tenant/respondent No. 1 has ceased to occupy the premises for a continuous period of over twelve months and has shifted from the said premises and, is commercialising in the said premises by subletting or transferring his rights of lease in the said premises in any other manner to respondent No. 2 (alleged sub-tenant) who has converted the said shop into a godown/store for sweets, etc. and generally keeps it locked. The landlord/petitioner, has in fact alleged both the grounds, i.e. (a) the tenant/respondent No. 1 has ceased to occupy the premises for a continuous period of over twelve months; and (b) the tenant/respondent No. 1 has sublet the premises to the alleged sub-tenant/ respondent No. 2, who has converted the said premises into a godown/store for sweets, etc. and generally keeps it locked. These allegations are denied by the tenant/respondent No. 1, and the alleged sub-tenant/respondent No. 2.

20. On 10th November, 1978, Tara Chand landlord (P. W. 1) stated; 'Tenant has left the disputed premises ......... 2 1/2 years ago, and has gone away.

He has sublet the same to respondent No. 2. Shop was rented out to respondent No. 1 for running a grocery shop but now respondent No. 2 is using it as a godown where respondent No. 2 stores his sweets after preparing the same as a Halwai'. The landlord/petitioner has nowhere stated that the disputed premises remained closed, or locked for a period of more than twelve months without reasonable cause. Chanman Lal (P. W. 2) has stated: 'The disputed shop is used for sleeping and as a godown and Pirthi Chand (respondent No. 2) opens and closes the same.'

21. Hari Chand tenant/respondent No. 1 appeared as RW 1. He stated that he is in possession of the shop and he never ceased to occupy the same. Gurcharan Dass (RW 2) also states that respondent No. 1 never ceased to occupy the same. Prithi Chand (RW 3) states that the tenant respondent No. 1 is in possession of the same and he never ceased to occupy the same. Hari Chand (RW 1) again appeared on 6th August, 1980 and gave the version. Kamal Khanna (RW 4) corroborates the statement of Hari Chand. Besides the aforesaid oral evidence there is no other evidence regarding the fact that the tenant/ respondent No. 1 ceased to occupy the disputed premises for a period of more than twelve months without reasonable cause.

22. The intention of the Legislature is that the building should remain open and in continuous use and should not remain closed for a longer period. The obvious reason is that the condition of a building deteriorates if it remains closed and out of use. Section 14 (2) (v) of the Act, in fact, covers a case where the premises are kept locked and are not used for a period of more than twelve months, without reasonable cause. Thus the landlord should prove (a) that the premises were out of use or remained locked for a period of more than twelve months, and (b) such non-user/non-occupation of the premises was not due to any reasonable cause.

23. The landlord who seeks eviction of the tenant, has to prove his allegation and cannot rely merely on his own statement or the weakness of the tenant's evidence. In the present case, that Landlord/petitioner in his statement recorded on 10th November, 1978 and in the eviction petition has admitted that the building is in use and in occupation of the alleged sub-tenant/respondent No. 2 Respondent No. 2 was sleeping in the premises and was opening and closing the same. He was storing sweets in the premises and was using it as a godown. According to the version of the tenant/ respondent No. 1, respondent No. 2, and their witnesses the building is in occupation of the tenant. Even if the evidence of the respondents is disbelieved still it is not proved that the tenant/respondent No. 1 ceased to occupy the building for a period of more than twelve months without reasonable cause because according to the version of the landlord/petitioner the building never remained locked for such a long period. Section 14 (2) (v) of the Act is similar to Section 13 (2) (v) of the East Punjab Rent Restriction Act, in Balwant Singh v. Gurdial Singh, (1971) 73 Pun LR 1032 it was held that it covers a case where the premises are locked and have not been actually used. It cannot cover a case where the premises are continuously in use although the tenant himself does not stay there.

24. The Appellate Authority has in its judgment relied upon some circumstances which are enumerated in para 11 of the judgment as follows:

'To sum up, (1) as the stand set up by both the respondents in a joint reply that both the respondent concerns were joint Hindu family concerns has not been believed, (2) Ram Asra of respondent No. 1 has admittedly been residing out of Simla, (3) No licence as stated, by Licence Inspector was obtained by respondent No. 1 after March, 1977, (4) Registration under Shop and Commercial Establishment Act regarding respondent No. 2 firm was also not renewed after March, 1977, (5) no sale tax number has been procured by respondent No. 1, (6) no evidence has been placed on file by the respondent No. 1 regarding purchase of commodities for being sold by them, and (7) Hari Chand, of respondent No. 1 firm has admittedly been running a shop at Chhota Simla and as such, cannot be supposed to work at two shops are amongst others very significant circumstances to conclude that respondent No. 1, the tenant in the premises for a continuous period of 12 months ceased to occupy the premises without a reasonable cause, as according to both Dhian Singh Licence Inspector (P. W. 3) and B.C. Gupta, Shop Inspector (P. W. 4) licence and registration of respondent No. 1 firm had lapsed in March, 1977 and the petition in hand was instituted on 11-7-1978

25. Circumstance No. 1 is of no avail for proving that the tenant ceased 10 occupy the building for a period of more than twelve months without reasonable cause.

26. Circumstance No. 2 is not material because the occupation of the building is, in fact, with Hari Chand, who is admittedly the tenant of the disputed premises. Even according to the allegations in the eviction petition Hari Chand is a proprietor/partner of the firm M/s. Ram Asra Hari Chand/respondent No. 1.

27. Circumstances Nos. 3, 4 and 5 cannot be considered as proving the case of the landlord/petitioner under this sub-clause. Hari Chand (tenant) has explained that he remained ill for sometime and could not obtain the necessary licence, etc. In any case, for not obtaining a licence or registration or sales tax number a person is criminally liable for such acts or omissions on his part but these facts are not sufficient to prove that the person was not opening the premises.

28. Circumstance No. 6 is also of no avail because the onus of proving that the premises had remained closed, for a period of twelve months or more was on the landlord/petitioner,

29. Circumstance No. 7 in based upon conjectures only.

30. The Appellate Authority has decided the case by placing onus upon the tenant as is mentioned in para 7 of the judgment. At another place in the judgment it is stated that it is incumbent upon the petitioner (landlord) to prove to the hilt that respondent No. 1 ceased to occupy the premises since 11-7-1977. The Appellate Authority while discussing the evidence had acted on conjectures and has ignored the fact that onus to prove issue No. 6 was upon the landlord/petitioner. There is no question of deciding issue No. 6 in favour of the landlord/ petitioner when the landlord/petitioner himself has not stated that the tenant ceased to occupy the premises for a period of more than twelve months without reasonable cause. Besides this fact, the two grounds taken by the landlord/petitioner are self contradictory because at one place the landlord/petitioner states that the tenant has ceased to occupy the premises for more than twelve months without reasonable cause and at another place he states that the tenant has sublet the premises and the sub-lessee is in possession of the premises and using the same.

31. I am aware of the fact that generally there should not be any interference in a revision with the findings of fact, but in the present case I find that the finding of fact given by the Appellate Authority is based upon no evidence on the record and is based upon erroneous interpretation of law. In these circumstances it is a fit case for interference.

32. In view of the above discussion, I hold that the decision of the Appellate Authority on issue No. 6 is wrong and this issue is decided against the landlord/petitioner. The finding of the Rent Controller is correct and justified.

33. As a result of the above discussion, this revision is accepted and the order of the Appellate Authority based upon issue No. 6 is set aside. The findings of the Rent Controller and the Appellate Authority on the other issues including issue No. 5 are confirmed.

34. In the peculiar circumstances of the case, I leave the parties to bear their own costs of this revision as well as of the appeal.


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