Punjab-Haryana High Court
Smt. Prem Wati W/O L. Shikhar Chand vs Ramesh And Ors. on 22 January, 2003
Equivalent citations: (2003)134PLR774
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Smt. Premwati instituted an ejectment petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) against respondents No. 1 to 8, on three grounds viz (i) that the shop in dispute has been subletted to one Ram Sarup- respondent No. 9; (ii) that the tenants are in arrears of rent and (iii) that the respondents removed middle load wall without consent of the landlord, causing material alteration resulting in impairing the value and utility of the shop as two shops have been controverted into one shop.
2. The eviction petition filed by the landlady was dismissed by the learned Rent Controller, Rewari, vide judgment dated 17.3.1983. The landlady preferred an appeal before the appellate authority, Narnaul, who, while affirming the findings of facts arrived at by the learned Rent Controller, dismissed the appeal vide judgment dated 1.3.1986. Thus, giving rise to the filing of the present revision petition before this Court.
3. Before I proceed to discuss the contentions raised in the present petition, it will be relevant to refer to the facts as they emerge on the record of the Court.
4. It is not disputed that the premises was rented out to the tenant by executing rent note dated 8th January, 1960, exhibit Aw.1/1. Under the terms of the rent deed, the premises in question was rented out at the monthly rent of Rs. 37.50 to Wazir Chand. Wazir Chand predecessor-in-interest of respondents No. 1 to 8 died and thus the respondents became statutory tenants by operation of law. The eviction of the respondents, who are stated to have subletted the premises to Ram Sarup respondent No. 9 in the eviction petition on the afore-stated three allegations was contested by the tenants, who denied all the grounds particularly removal of the wall as well as sub letting the premises to Ram Sarup.
5. The case of the tenants as pleaded was that there was no partition wall between the two shops. They had only taken on rent one single shop having two doors, as such, the entire petition was vague and was without any basis.
6. The son of the petitioner appeared in the witness box as AW3 and also examined two witnesses AW 2 and AW 4 in support of their case. The site plan was also produced on record as exhibit AW3/1.
7. On the other hand, the tenant examined an expert as RW1 in addition to four more witnesses. As already noticed, the learned Rent Controller as well as appellate authority after taking into consideration the oral well as documentary evidence came to a concurrent finding of facts and dismissed the eviction petition.
8. As far as ground of non-payment of rent is concerned, it was rendered ineffective as rent was tendered in accordance with law before the learned Rent Controller and thus this ground after payment of rent was given up.
9. As far as ground of subletting is concerned in the petition vague averments were made and there was no cogent evidence as to whom, at what rate of rent and when the premises had been subletted. Admittedly Wazir Chand had died and the allegations of subletting was made against him.
10. The learned Rent Controller discussed this issue at length and found that there was no substance in this ground. The learned appellate authority, while affirming the findings of the learned Rent Controller on this ground held as under:-
".... Obviously, the allegation of subletting was too tenuous to be entertained. It was not at all averred by the appellate as to when and under what circumstances, the premises were sublet by the tenant(s) in favour of Ram Sarup. On the own showing of the appellant, the alleged subtenant had never remained in exclusive possession of the demised premises. Even if that person, admittedly the real brother of original tenant named Wazir Chand, had been sitting in that shop, for rendering assistance to his brother or otherwise, that could not be regarding as parting with possession by the tenant in his favour. It was nowhere the case of the appellant that the tenant(s) had been receiving any consideration from the alleged sub-tenant,"
11. No evidence has been brought to the notice of the court which could persuade the Court to take a view that the ingredients as stated under Section 13(ii) (a) of the Act are satisfied. It is settled principle of law that essential and/or relevant ingredients of subletting are:- point of time when the premises was subletted; completely parting with the possession of the premises to the exclusion of the tenant himself; consideration in terms of money or otherwise for such parting with the possession of the premises. None of these ingredients have either been pleaded or proved by leading cogent evidence. In this regard reference can be made to the case of Dipak Banerjee v. Lilibati Chakrabotry, (1987) 4 Supreme Court Cases 361.
12. The next main thrust of the counsel for the petitioner is in regard to ground of removal of intervening wall between the two shops and consequently impairing materially the value and utility of the premises rented out to the respondents. In the petition, the landlady has made averments which would not satisfy the ingredients of Section 13(ii) of the Act. The question that falls for consideration is; what evidence has been led by the petitioner to prove its case before the learned Rent Controller. AW1/1 is the rent note executed between the parties. The recitals and the opening part of this exhibit reads "as two shops" bearing separate municipal numbers. However, in the subsequent part of the said exhibit, reference has been made only to a shop, possession of which is under the terms of the rent deed. AW3 is the son and the attorney of the landlady, who was very young when the premises was rented out in the year 1960. Much credence can not be attached to his statement. According to this witness, he is residing in Delhi and has not seen the shop from inside and had not even gone on the roof of the shop from the time be attained awareness in this regard. The landlady opted not to examine any expert so as to show, that the wall of the shop was actually removed and there was material impairment in terms of utility and value of the shop. It is a matter which can always be proved by leading expert evidence, rather than by making mere vague averments.
13. On the other hand, the respondents examined an expert RW1 who prepared a report and the site plan exhibited RW 1/1.
AW2 is most material witness which has been examined by the landlady in support of his case. He is the person who is occupying the shop just few yards away from the tenanted premises for number of years. Thus, it will be pertinent to examine the statement of this witness minutely. In his examination-in-chief, the witness stated that the property in dispute had two shops and there was a wall between them. He also stated that Wazir Chand used to carry on the business of Hair Dressers in the said shop. According to him, at the premises there are two shops but the intervening wall had been removed. His cross-examination depict entirely different story. In, his cross-examination he states that he had seen the shop nearly 20 years back and at that time only Wazir Chand was carrying on the business on the said shop. At that time, the shop was in the shape of only one shop. Earlier the shop was being occupied by one Manihari and at that time also there was only one shop and not two. He further stated that there were two doors and wall which was intervening earlier between the two shops which was one brick wall known as curtain wall.
AW.3 himself stated in his cross-examination that prior to 1960 he cannot say who was tenant and it is also a fact that he had not seen the said shop from inside.
14. The above oral and documentary evidence does not satisfy the plea taken by the landlord under the provisions of Act ibid. It was obligatory on the part of the landlord to prove the ground by leading cogent and proper evidence. Neither any expert was examined by the landlady nor did the landlady herself, who was quite familiar with the facts and circumstances of the case, appear in the witness box. Why did not landlady appear in the witness box remains quite un-explained. Her son appeared as her attorney who admittedly was so young (nearly two years old) when the premises was rented out. He could hardly depose about the tenanted premises, In his cross examination he had stated that he had not visited the tenanted premises inside, in these circumstances, his testimony can hardly be relied upon for passing eviction order on the grounds taken by the landlady. In any case, both learned Rent Controller as well as appellate authority have arrived at concurrent findings of facts based on proper appreciation of evidence, which calls for no interference.
15. For the reasons afore-stated, I find no ground to interfere in the judgments of the learned Courts below as they are neither palpably erroneous not they suffer from an infirmity. Dismissed.