Punjab-Haryana High Court
Hardev Singh And Anr. vs Balwant Singh on 15 October, 2003
Equivalent citations: (2004)136PLR685
JUDGMENT G.S. Singhvi, J.
1. This is a petition under Section 15(5) of the East Punjab Rent Restriction Act, 1949 (for short, 'the Act') for setting aside judgment dated 22.12.1980 passed by Appellate Authority, Sangrur vide which it confirmed the order of eviction passed by Rent Controller, Malerkotla in Rent Application titled "Balwant Singh v. Hardev Singh and Anr.".
2. Respondent-Balwant Singh filed an under Section 13 of the Act for eviction of petitioners-Hardev Singh and Sat Pal from the tenanted premises i.e. shop situated in the urban area of Bahadurgarh by alleging that tenant-Hardev Singh had not paid rent from 1.9.1974 to 31.5.1975 and had sub-let the shop to Sat Pal without his consent.
3. Hardev Singh did not contest the application. In his reply, petitioner No. 2-Sat Pal pleaded that the respondent was not the landlord of the tenanted premises; that there did not exist relationship of landlord - tenant between the parties; that rent up to the month of September, 1974 had been received by Bachan Singh from M/s Guru Nanak Automobiles, Ahmedgarh: that rent for the month of October, 1974 was not accepted by Bachan Singh and that even though he had tried to pay the outstanding rent to Bachan Singh on 4.9.1975, the latter did not accept the same.
4. On the pleadings of the parties, the Rent Controller framed the following issues:-
(1) Whether there is a relationship of landlord and tenant between the parties? OPA (2) Whether Hardev Singh respondent No. 1 has sub let the demised premises to Sat Pal respondent No. 2? OPA (3) Relief.
5. Balwant Singh appeared as AW1 and examined Bachan Singh as AW2. Petitioner No. 2-Sat Pal himself appeared as RW5 and examined Hardev Singh as RW1, Bir Singh as RW2, Mahender Singh as RW3 and Darshan Singh as RW4.
6. After analysing the pleadings of the parties and evaluating the evidence produced by them, the Rent Controller held:-
(i) that the applicant (respondent herein) is the owner and landlord of the tenanted premises and Hardev Singh was the tenant; and
(ii) that Hardev Singh had sub-let the shop to Sat Pal without the consent of the landlord.
7. On the basis of the above findings, the Rent Controller allowed the application filed by the respondent and directed the petitioners to put him out in possession.
8. The petitioners challenged the order of eviction by filing an appeal under Section 15(2) of the Act. During the pendency of the appeal, an application was filed on behalf of the petitioners for permission to adduce additional evidence in the form of register of house tax of Municipal Committee, Ahmedgarh. The same was rejected by the Appellate Authority by making the following observations :-
"Additional evidence can only be allowed to be produced if the evidence was such that it was not within the knowledge or in power of a particular party to produce at the time of trial or it is otherwise required by the appellate court to come to an effective decision. In the instant case the evidence which the appellant wants to produce is not required by the court for effective decision. This evidence was within the knowledge of the appellant and he could every well produce it at the time of trial. If he failed to produce it at that time and, as such, lacuna was left in the appellant's evidence, he cannot be allowed to fill up the lacuna at the stage of appeal. So the application for additional evidence I think is untenable and hence is hereby rejected."
9. The Appellate Authority then noted that no tangible argument had been put forward by the counsel for the petitioners to assail the finding recorded by the Rent Controller on the issue of existence of landlord-tenant relationship between the respondent and petitioner No. 1 and confirmed the finding that Hardev Singh was the tenant of the respondent, the learned Appellate Authority rejected the argument of the learned counsel for the petitioners that the finding recorded by the Rent Controller on the issue of sub-letting was erroneous and held;-
"No doubt a partnership deed Ex.RW1/C was executed between Sat Pal appellant and Hardev Singh tenant but it was as rightly observed by the learned Rent Controller only a camouflage to avoid eviction on the ground of sub-letting. It has come in evidence and it was not disputed before me by the learned counsel for the appellant that after the alleged partnership between Hardev Singh tenant and Sat Pal-appellant, Hardev Singh never worked at the partnership concern. Rather immediately after partnership deed was executed Hardev Singh went to Calcutta and there he remained for a number of months. Later on when he came from Calcutta he did not start working at the partnership concern but took up a job as an employee in a rival concern named and styled as M/s Viskarma Auto engineering, Ahmedgarh. This circumstance I think strongly militates against the appellant's contention of a genuine partnership between him and Hardev Singh. Had the partnership between Hardev Singh and Sat Pal appellant been genuine Hardev Singh could not have left for Calcutta immediately after the partnership deed was executed and he would not have later on joined service in a rival concern and the rival concern would not have accepted him as an employee had he actually been a partner of Sat Pal appellant. So the inference or the conclusion I think is inescapable that Hardev Singh appellant did not actually entered into partnership with Satpal appellant. Actually the premises in dispute must have been sub let to Sat Pal appellant and the alleged partnership was created simply as to circumvent the provisions of the Rent Restriction Act. Therefore, agreeing with the learned Rent Controller I hold that Sat pal appellant is a sub tenant in the premises in dispute. Consequently, I hold that the decision given by the learned Rent Controller on issue No. 2 is also unassailable and hence the same is also hereby maintained."
10. Shri M.L. Saini assailed the decision of the Appellate Authority to decline permission to the petitioners to adduce additional evidence by arguing that the reasons assigned by it are legally unsustainable. He submitted that municipal registers were public documents and there could be no objection to the production thereof.
11. In my opinion, there is no merit in the argument of the learned counsel. In the application filed for permission to lead additional evidence, it was nowhere mentioned that applicant-petitioner No. 2 was not aware of the existent of the house tax register or that the same could not be produced despite the exercise of due diligence. Therefore, the Appellate Authority did not commit any error by refusing to entertain the prayer of the petitioners for permission to lead additional evidence.
12. Shri Saini then argued that the finding recorded by the Rent Controller and the Appellate Authority on the issue of sub-letting is perverse, inasmuch as, no evidence was available before them to prove parting of possession of Hardev Singh or that Sat Pal was having exclusive possession over the shop. He relied on partnership deed Ex.RW1/C to show that Hardev Singh and Sat Pal were partners and were carrying on the business in the name and style of M/s Guru Nanak Automobiles, Ahmedgarh and argued that in view of this evidence, petitioner No. 2, could not have been treated as a tenant of petitioner No. 1.
13. Shri Gurpreet Singh, learned counsel for the respondent supported the concurrent finding recorded by the Rent Controller and the Appellate Authority on the issue of subletting and argued that the so-called partnership between the petitioners was nothing but a farce enacted by them to facilitate illegal retention of the possession of tenanted premises by petitioner No. 2, Learned counsel submitted that if the petitioners were doing partnership business, there was no occasion for Hardev Singh to join the service of a rival concern namely, M/s Vishwakarma Auto Engineering, Ahmedgarh.
14. Before dealing with the arguments of the learned counsel, I deem it proper to notice some of the judicial precedents on the scope of revisional power of the High Court under Section 15(5) of the Act.
15. In Ram Dass v. Ishwar Chander and Ors., A.I.R. 1988 S.C. 1422, the Supreme Court dismissed the appeal filed by the tenant against the order of this Court reversing the judgment of the Appellate Authority and restoring the order passed by the Rent Controller for his eviction. Their Lordships referred to Section 15(5) of the Act and observed:-
"Section 15(5) of the Act enables the High Court to satisfy itself as to the "legally and propriety" of the order under revision, which is, quite obviously, a much wider 'jurisdiction'. That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts also, through the revisional court is not "a second court of first appeal".
16. In Smt. Rajbir Kaur and Anr. v. S.Chokosiri and Co., A.I.R. 1988 S.C. 1845, their Lordships of the Supreme Court reversed the order passed by this Court vide which the order of eviction passed against the respondent was set aside and observed:-
"When the findings of fact recorded by the Courts below are supportable on the evidence on record, the revisionable court must be reluctant independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted and supported the one reached by the Courts below:-"
17. In Dev Kumar (Died) through LRs. v. Smt. Swaran Lata and Ors., (1996-2)113 P.L.R. 391 (S.C.) - A.I.R. 1996 S.C. 510, their Lordships of the Supreme Court referred to some of the earlier judgments and held:-
"In our considered opinion having regard to the aforementioned decisions of this Court laying down the parameters of the High Court's jurisdiction under Section 15(5) of the Act it is neither possible to accept the narrow construction put by the learned counsel appearing for the appellant nor the wide construction put by the learned counsel for the respondents. The jurisdiction of the High Court under Sub-section (5) of the Section 15 of the Act, therefore, would entitle the Court to examine the legality and propriety of a conclusion of the Appellate Authority and is thus much wider than the revisional jurisdiction under Section 115 of the Code of Civil Procedure, But it has to be exercised subject to the well known limitations inherent in all revisional jurisdictions and cannot be equated with an Appellate jurisdiction. This being the position, unless there is a perversity in the matter of appreciation of evidence by the Appellate Authority or unless the Appellate Authority has arrived at a conclusion which on the materials, no reasonable man can come the High Court will not interfere with the same."
18. In Resham Singh v. Raghbir Singh and Anr., (1999-3)123 P.L.R. 527 (S.C.), the Supreme Court delineated the scope of revisional power of the High Court under Section 15(5) of the Act, of the Act in the following words:-
"6. The Sub-section (5) empowers the High Court either on application or in its own motion to call for an examination of the record for the purposes of satisfying itself as to the legality and propriety of such orders or proceedings. In view of the above language of Sub-section (5) we find that the High Court while exercising powers under Sub-section (5) of Section 15 of the Act has got the powers to satisfy itself as to whether the question of subletting which is a question of law was properly decided by the Courts below."
19. In Lachhman Dass v. Santokh Singh, (1995-3) 111 P.L.R. 276 (S.C.), the Supreme Court considered the scope of revisional power of the High Court under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 which is pari materia to Section 15(5) of the Act and observed:-
"...That being so the two jurisdiction-one, under an appeal and the other under revision cannot be said to be one and the same but distinct and different in the ambit and scope. Precisely stated an appeal is a continuation of a suit or proceedings wherein the entire proceedings are again left open for consideration by the appellate authorities which has the power to review the entire evidence subject, of course, to the prescribed statutory limitations. But in the case of revision petition whatever powers the revisional authority may have, it has no power to reassess and re-appreciate the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision. In this view of the matter we are supported by the decision of this Court in State of Kerala v. K.M. Charia Abullah and Co., A.I.R. 1965 S.C. 1585."
20. In Molar Mal (dead) through LRs. v. Kav Iron Works (P) Ltd., A.I.R. 2000 S.C. 1261, the ambit and scope of powers of the High Court under Section 15(6) of the Haryana Act was again considered and it was held that:-
"under Sub-section (6) of Section 15, the High Court as a revisional authority, has the power to call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to legality and propriety of such order and is entitled to pass such order as it may deem fit. The power vested in the High Court under this provision of law is much wider than the power conferred on the High Court under Section 115 of the CPC. In the process of satisfying itself as to the legality and propriety of the impugned order, the High Court can, in a given case, go into the findings of fact arrived at by the Courts below and, if found necessary, reverse such a finding of fact. Of course, this Court has in may cases cautioned that this power is not to be used as a revisional Court in a routine manner but to be used only when the revisional Court comes to the conclusion that the last Court of feet has arrived at a conclusion which is perverse or is not possible to be accepted on the materials placed before it. In other words, if the High Court comes to the conclusion that the finding of the first Appellate Court is based on no evidence, then in a given case, it is open to the High Court to interfere with such finding of fact."
21. The ratio of the propositions laid down in the above noted decisions is that the revisional jurisdiction of the High Court under Section 15(5) of the Act is much wider than its revisional jurisdiction under Section 115 of the Code of Civil Procedure, but the same has to be exercised subject to well known limitations inherent in all revisional jurisdictions and cannot be equated with an appellate jurisdiction. In other words, the High Court can in exercise of its power under Section 15(5), call for and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and interfere with the same if it is convinced that the Rent Controller and/or the Appellate Authority has committed any jurisdictional error or exercised jurisdiction illegally or with material irregularity or the finding/conclusion recorded in the impugned order is perverse or is such which a reasonable man could have not recorded in the facts and circumstances of the particular case. However, the High Court cannot interfere with the finding/conclusion recorded by the Rent Controller and/or the Appellate Authority simply because on a re-evaluation of the evidence, it forms a different opinion on the particular issue.
22. In the light of the law laid down in the aforementioned decisions, it has to be seen whether the concurrent finding recorded by the Rent Controller and the Appellate Authority on the issue of sub-letting is vitiated by an error of law apparent on the face of the record. The petitioners have challenged this finding by contending that Hardev Singh and Sat Pal were partners in business. To substantiate this, petitioner No. 2 produced partnership deed Ex.RW1C. The Rent Controller discarded this piece of evidence by observing that it was a camouflage to avoid order of eviction. This finding was endorsed by the Appellate Authority and I do not find any valid reason to disagree with them because,-
(a) petitioner No. 1-Hardev Singh, who was inducted as tenant in the shop in question, did not contest the allegation of sub-letting; and
(b) immediately after execution of the so-called partnership deed, Hardev Singh left for Calcutta and stayed there for six months and after return from Calcutta, he joined the service with M/s Vishwakarama Auto Engineering, Ahmedgarh which was rival in the business of M/s Guru Nanak Automobile, Ahmedgarh.
23. Learned counsel for the petitioners could not explain as to why after entering into the so-called partnership with Sat Pal, Hardev Singh went to Calcutta and then joined the service in a rival business firm. Therefore, it is not possible to agree with him that the concurrent finding recorded by the Rent Controller and the Appellate Authority is perverse or suffers from any error apparent.
24. Before concluding, I may notice some judicial precedents on the subject.
25. In Harbans Singh and Anr. v. Co. Man Singh and Ors., 1986(1) Rent Control Reporter 571, it was held that if the tenant leaves the partnership and the other partner continues in the premises, then it would be a case of sub-letting.
26. Similar view was expressed in Smt. Darshana Devi and Anr. v. Des Raj Singh Thakur, (1997-2) 116 P.L.R. 588: Ajit Singh v. Kamal Kishore and Ors., (1992-1)101 P.L.R. 364 and Sh. Janak Raj Ahuja v. Sh. Navneet Sehgal and Anr., (1997-2) 116 P.L.R. 452.
27. In Smt. Darshana Devi's case (supra) the learned Single Judge observed that if the partnership is not genuine and is merely a camouflage to conceal the real transaction of sub-letting, then it would be a clear case of sub-letting.
28. In Ajit Singh's case (supra) it was held that where the tenant takes the plea of partnership, then onus is upon him to prove that there is a genuine partnership and if he fails to prove the same, sub-tenancy is proved.
29. In Janak Rai Ahuja's case (supra), it was held that for genuine partnership of the business, the real intention of the parties has to be found and their conduct is relevant for finding out their real intention.
30. In the result, the revision petition is dismissed. However, keeping in view the fact that petitioner No. 2 has been doing business for sufficiently long time, I deem it proper to accept the oral request of Shri M.L. Saini for grant of time to his client to vacate the shop and give him six months time to do so subject to the following conditions :-
(i) The period of six months shall commence from today,
(ii) Within one month from the date of receipt of a copy of this order, petitioner No. 2 shall file a written undertaking before Rent Controller, Malerkotla that he would hand over vacant possession of the shop to the respondent.
(iii) petitioner No. 2 shall pay to the respondent a sum of equivalent to monthly rent by way of damages for use and occupation of the shop.
(iv). If petitioner No. 2 fails to pay the amount equivalent to monthly rent by way of damages of fails to vacate the shop at the end of six months period, the respondent shall be entitled to take possession by adopting all legally permissible methods.