Punjab-Haryana High Court
Mathra Dass vs Sarup Chand And Ors. on 13 August, 2003
Equivalent citations: (2004)136PLR682
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. The landlord-Mathura Dass in this revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) assails the orders dated 18.1.1988 passed by the Appellate Authority under the Act and the order dated 21.5.1986 passed by the Rent Controller, Barnala.
2. The petitioner-Mathura Dass filed a petition under Section 13 of the Act for the ejectment of Sarup Chand and Ishar Singh respondent No. 1 and 2 from the one room shop situated within the Municipal limits of Barnala, as detailed in the head note of the petition. The case of the petitioner is that the shop in dispute was taken on rent by Sarup Chand (respondent No. 1) at the rate of Rs. 70/ per month from 1.8.1976 to 30.7.1977. A rent note dated 21.7,1997 Ex.A1 was executed by Sarup Chand (respondent No. 1). The petitioner sought ejectment of the respondent No. 1 and 2 on the ground of non-payment of rent as respondent No. 1 had not paid rent from 1.7.1976 to 31.5.1984 amounting to Rs. 5040/-. Besides, he had also not paid house tax @ Rs. 45/-p.a. for the period 1978-79 to 1984-85 amounting to Rs. 315/-. The petitioner also prayed that he was entitled to recover electricity expenses amounting to Rs. 386/-. The other ground of ejectment was that respondent No. 1 had sublet the shop to respondent No. 2 on 1.1.1984 and that respondent No. 2 is in possession of the shop and is running his business. In this manner, the petitioner sought ejectment of respondent No. 1 and 2 on the ground of non-payment of rent and subletting. During the pendency of the proceedings before the Rent Controller, Tarsem Lal filed an application under Order 1 Rule 10 CPC for being impleaded as a respondent to the petition for ejectment. The said application was allowed on 6.12.1984 and he was impleaded as respondent No. 3.
3. The respondents No. 1 and 2 did not tender any rent and filed their separate replies to the petition. However, the relationship of landlord and tenant between the petitioner and respondents No. 1 and 2 was denied. It is stated that Sarup Chand (respondent No. 1) had not taken the shop on rent from the petitioner but the shop was taken on rent by Tarsem Lal (respondent No. 3) and he is in possession of the same since 8/9 years. Sarup Chand (respondent No. 1) never was in possession of the shop. The rent note was stated to be a benami transaction. It was stated that Tarsem Lal (respondent No. 3) had taken the shops on rent on 21.7.1976. Ishwar Singh (respondent No. 2) denied that he is in possession of the shop or that he is a sub-lessee. He also stated that Tarsem Lal (respondent No. 3) took the stand that Sarup Chand (respondent No. 1) had not taken the shops on rent and in fact he is in possession of the shop in dispute as tenant. Sarup Chand (respondent No. 1) is stated to be simply a benamidar and the rent note is a benami transaction. Tarsem Lal (respondent No. 3) further states that he has been paying rent to the petitioner which has been paid upto 19.7.1974 and he is ready to pay the remaining payment.
4. The petitioner filed his replication to the respective written statements of the respondents in which the material averments were denied and those of the petition were reiterated.
5. The learned Rent Controller framed the following issues and additional issue on the basis of the pleadings of the parties;-
"1. Whether there is a relationship of landlord and tenant between the petitioner and respondent No. 1? OPA.
2. If issue No. 1 is proved, whether the respondent No. 1 has not paid the rent from 1.6.1978 to 31.5.84? OPA
3. Whether respondent No. 1 has sublet (the) disputed shops to respondent No. 2? If so, its effect? OPA.
4. Whether this court has got no jurisdiction to try the present petition? OPR
5. Whether the petition is frivolous and vexatious? If so, its effect? OPR 5A. Whether respondent No. 3 is tenant of the petitioner in the shop in dispute? OPR(3). (Additional issue framed on 11.1.1985).
6. Relief.
6. The Rent Controller on issue No. 1 held that there was no relationship of landlord and tenant between the parties. Consequently issue No. 2 was also decided against the petitioner. Issue No. 5A was decided in favour of respondent No. 3 Tarsem Lal, who was held to be a tenant in the demised premises. Issue No. 3 regarding subletting of the demised shop by respondent No. 1 to respondent No. 2 was decided against the petitioner and it was held that there was no question of respondent No. 1 having sublet the shop in dispute to respondent No. 2. Issues No. 4 and 5 were decided against the respondents and in favour of the petitioner. As a result of findings on issue No. 1 and 5A, the petition was dismissed by the Rent Controller, vide his order dated 21.5.1986.
7. The petitioner filed an appeal against the said order of the Rent Controller and the Appellate Authority under the Act on 18.1.1988, dismissed the same and upheld the order dated 21.5.1986 of the Rent Controller.
8. The learned Senior Counsel for the petitioner has contended that the learned authorities below have gravely erred in holding that there was no relationship of landlord and tenant between the petitioner and respondent No. 1, which in fact is proved from the material on record. The Rent note dated 21.7.1976 Ex.A1 has been executed by the respondent No. 1 in favour of the petitioner, and the same clearly proves the said relationship. Besides, it is stated that neither respondent No. 1 nor respondent No. 3 tendered the arrears of rent on the first hearing of the ejectment petition. Therefore, it is contended that the revision petition is liable to be accepted and the orders of the authorities below be-set aside.
9. The learned Senior Counsel appearing for respondent No. 3 has contended that the authorities under the Act had recorded a clear finding of fact that there is no relationship of landlord and tenant between the petitioner and respondent No. 1 and this finding is not liable to be interfered with. Besides, it is contended that the arrears of rent were never claimed from respondent No. 3 and, therefore, was no question of tendering the same.
10. I have considered the respective contentions of the learned Senior counsel appearing for the parties. It is appropriate to note that both the authorities under the Act have, as a matte? of fact held that there is no relationship of landlord and tenant between the petitioner and respondent No. 1. Besides, respondent No. 3, Tarsem Lal is a, tenant in the demised premises. A reading of the rent note dated 21.7.1976 Ex.A1 shows that the same was executed by respondent No. 1 Sarup Chand. However, in paragraph-3 of the same, it is recorded that in these shops, his co-sharer Tarsem Lal (respondent No. 3) is in possession and that he would not give the shop on rent to any other person. Therefore, from the document Ex.A1, which has been produced and proved by the petitioner, it is admitted position that Tarsem Lal (respondent No. 3) is in possession of the demised shop. Besides, it was also noticed that Tarsem Lal (respondent No. 3) had placed on record a number of receipts Ex.R-1 to R-38 whereby rent of the premises in dispute was received from him. Therefore, payment of rent by Tarsem Lal (respondent No. 3) and acceptance of the same by the petitioner in the facts and circumstances of the case would create a relationship of landlord and tenant between them. In this view of the matter, there is no error of jurisdiction in holding that there is no relationship of landlord and tenant between the petitioner and respondent No. 1 and that respondent No. 3 is the tenant in the shop. Therefore, in my view issues No. 1 and 5A have correctly been decided by the authorities below and the findings of fact warrant no interference.
11. The other contention of the learned Senior counsel for the petitioner is that neither respondent No. 1 nor respondent No. 3 had tendered arrears of rent on the first date of hearing. Insofar as tender of rent by respondent No. 1 is concerned, the same is quite inconsequential in view of the fact that there is no relationship of landlord and tenant between the petitioner and respondent No. 1. Therefore, there was no occasion for respondent No. 1 to tender the rent. Insofar, Tarsem Lal (respondent No. 3) is concerned, there was no demand in the petition for ejectment on the ground of non-payment of rent for respondent No. 3 to tender the rent. Therefore, there was no occasion for respondent No. 3 to tender the rent. A Full Bench of this Court in the case of Lt. Col, Dr. P.C. German (Retd.) v. Mohinder Singh and Ors. (1997-3) 117 P.L.R. 857 (F.B.), considered the question of non-payment of rent by a sub-tenant who had been inducted with the permission of the landlord, It was held as follows:-
"It is clearly borne out from the record of this case and from the ejectment application itself that the landlords-respondents have not taken up any of the grounds for ejectment much less the ground for non-payment of rent as provided under Section 13(2)(i) against the sub-tenant who is the petitioner before us. When no demand of rent under Section 13(2)(i) is made against the sub-tenant and no application as provided under Section 13(2)(i) for demand of rent is made before the Controller specifically against the sub-tenant, the sub-tenant is not liable to ejectment for non-payment of rent. Obviously, when no demand of rent has been made from the sub-tenant (petitioner) then to eject him for non-payment of rent certainly has caused a serious prejudice to him as he has not been given an opportunity of being heard by the Controller as specifically provided under Section 13 of the Act and particularly so when the landlords having failed to claim and demand the rent from the sub-tenant who pleaded himself to be direct tenant under the landlords."
12. The ratio of the said judgment would apply to the case in hand inasmuch as Tarsem Lal (respondent No. 3) was not even impleaded as a party and the arrears of rent were claimed from respondent No. 1 or at the most from respondent No. 2. There was no demand of rent from Tarsem Lal (respondent No. 3). Therefore, there is no question of his having tendering the same.
13. Even otherwise, it is to be kept in view that the scope of revisional jurisdiction under Section 15(5) of the Act is quite limited. The Apex Court in the case of Atma Singh Berar v. Mukhtiar Singh, A.I.R. 2003 S.C. 624 held that the object of conferring revisional jurisdiction on the High Court, by sub Section (5) of Section 15 of the Act, is to enable it to satisfy itself as to the legality or propriety of an order made by the controller or the proceedings before him. Besides, this Court in Brij Mohan v. Meera Devi and Ors., 1999(2) Revenue Law Reporter 174, held in context of the revisional jurisdiction under Haryana Urban (Control of Rent and Eviction) Act, 1973, that High Court can only interfere in the order passed by the Rent Controller and Appellate Authority, if the legality or propriety of the same is questionable and that ordinarily the findings of the fact arrived at by the said authority will not be interfered with unless they are erroneous, absurd or there is misreading of evidence.
14. Therefore, in the circumstances of the case in hand, there is no merit in the revision petition and the same is liable to be dismissed. Accordingly the petition is dis missed. However, in the circumstances there shall be no order as to costs.