Punjab-Haryana High Court
Ved Parkash And Others vs Tulsi Dass And Others on 19 September, 2011
Author: K.C.Puri
Bench: K.C.Puri
Civil Revision No.3229 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.3229 of 1989
Date of decision 19.9.2011.
Ved Parkash and others
...... Petitioners (Tenants).
versus
Tulsi Dass and others
...... Respondents.
CORAM :- HON'BLE MR. JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers 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?
Present : Mr. M.L.Sarin, Senior Advocate with Ms. Hemani Sarin, Advocate for the appellants.
Mr. Arun Jain, Senior Advocate with Mr. Kushagra Mahajan, Advocate for the respondents. K.C.PURI . J.
The petitioners-respondents have directed the present revision petition against the order dated 7.9.1989 Civil Revision No.3229 of 1989 2 passed by Shri M.S.Sehmee, Appellate Authority (under the East Punjab Urban Rent Restriction Act), Ludhiana vide which the appeal preferred by the landlord against the order dated 27.10.1986 vide which the eviction petition was dismissed by Shri O.P.Goyal, PCS, Rent Controller, Ludhiana stood set aside and the respondents-petitioners were directed to hand over the vacant and physical possession of their tenanted premises to the landlord/respondents within a period of two months from 7.9.1989.
2. The facts narrated in the petition are that Nirmal Dass, father of the landlord Tulsi Dass was the original owner of the property in dispute. In the year 1970, Dev Raj respondent No.1 took three shops on the ground floor along with two rooms, one kitchen and one bath room on the first floor and three Miyanies on the second floor on a monthly rent of Rs.200/-. Later on, there existed relationship of landlord and tenant between the parties and in July 1974 Dev Raj took more accommodation consisting of one store, one compound with effect from 1.7.1974 and the rent was then enhanced to Rs.250/- per month. He also executed a rent note on 10.7.1974 in favour of Nirmal Dass in respect of the tenanted property. In the month of March 1975, he again approached the landlord Nirmal Dass to let out the remaining portion of the building to him after necessary renovation and accordingly the entire property was let out to him by Nirmal Dass on a monthly rent of Rs.400/-. Dev Raj tenant also agreed to pay house tax in addition to the rent. The said Nirmal Dass died on 24.8.1979. He was succeeded by his only son Tulsi Dass, the present landlord. The landlord sought the eviction of the tenant Dev Raj and the sub tenants Ved Parkash and others on the ground of non-payment of rent w.e.f. 1.11.1975 along with house tax at the Civil Revision No.3229 of 1989 3 rate of 15% and also on the ground of sub-letting by Dev Raj to the other respondents No.2 to 6 without the written consent of the landlord.
3. The respondents contested the eviction application filed by the landlord/appellant and filed separate written statements. Dev Raj respondent admitted that he was occupying the entire property as a tenant under the father of the appellant on payment of Rs.200/- per month. He, however, denied that there was any agreement to pay the house tax by him. He admitted the raising of the rent from Res.200/- to Rs.250/- per month w.e.f. 1.7.1984 in favour of Nirmal Dass, in respect of the property in dispute. He denied that the rent was ever increased to Rs.400/- per month. He, however, admitted that respondent Nos.2 to 6 are the tenants under him at the rate of rent being Rs.80/- each in the case of respondents No.2,3 and 4 and Rs.70/- in case of respondent No.5 and pleaded that they had been paying rent to him up to the year 1975. He further pleaded that respondent No.6 was also accommodated by him by letting out a chaubara to him on the first floor on a monthly rent of Rs.50/-. Dev Raj, therefore, admitted the creation of tenancy in his favour and sub tenancy in favour of all the five respondents namely respondent Nos. 2 to 6. He also admitted that he is in arrears of rent with effect from 1.11.1975.
4. Respondents No.3 to 5 filed a joint written reply whereas respondent No.2 filed a separate written reply. They contested the petition and raised preliminary objections that as there are separate shops in their possession, so the eviction application is bad for misjoinder and nonjoinder of parties and cause of action ; the petition is not maintainable in the present form as they are direct tenants under Tulsi Dass on a monthly Civil Revision No.3229 of 1989 4 rent of Rs.80/- each inclusive of house tax. Dev Raj has nothing to do with this property as he was never inducted as a tenant either by the appellant or his father and that he is colluding with the landlord while seeking their ejectment. It has been further alleged that Nirmal Dass father of the appellant admitted them to be tenants by sending them notices dated 11.1.1979 through Shri M.L.Jhanji, Advocate, Ludhiana and so the appellant is estopped by act and conduct of his father from filing the present eviction application. Nirmal Dass, father of the landlord Tulsi Dass received and accepted rent from them in the Courts at Ludhiana in eviction petitions filed against them, which were later on withdrawn and so the present application is barred under Section 14 of the East Punjab Urban Rent Restriction Act, 1949 ( in short - the Act) and under Section 11 of the Code of Civil Procedure (in short - the CPC). They denied that Dev Raj was ever inducted as tenant in the disputed property at a monthly rent of Rs.200/- which was enhanced to Rs.250/- and then increased to Rs.400/- per month by renting him out other portions of the property. The execution of the rent note dated 10.7.1974 by Dev Raj in favour of Nirmal Dass was also denied and alleged that the said rent note is fabricated by the landlord in collusion with Dev Raj. Denying other averments they prayed for dismissal of the petition.
5. Nand Kishore respondent filed a separate written reply and raised preliminary objections that he vacated the premises in his occupation in February, 1979 and as such the eviction application is not maintainable against him. He alleged that he had taken the first floor of the property on rent from Dev Raj and he had delivered back the possession to him in Civil Revision No.3229 of 1989 5 February, 1979 on vacation by him. He also denied other averments and prayed for dismissal of the petition
6. From the pleadings of the parties, following issues were framed :-
1. Whether the respondent No.1 has sublet the premises in dispute to respondents No.2 to 6. If so, what effect ?OPA
2. Whether respondents No.2 to 5 are the direct tenants in the demised premises under the petitioner ?OPR 2 to 5.
3. Whether the petitioner is estopped from filing the present petition ?OPR 2 to 5.
4. Relief.
7. The parties have led their respective evidence on the aforesaid issues. The learned Rent Controller, Ludhaina after hearing the learned counsel for the parties and appraisal of the evidence available on the file, dismissed the petition vide order dated 27.10.1986
8. Feeling dis-satisfied with the aforesaid order, the landlord filed appeal against the order dated 27.10.1986. The Appellate Authority, Ludhiana after hearing the learned counsel for the parties and re-appraisal of the evidence, accepted the appeal and set aside the impugned order dated 27.10.1986 vide order dated 7.9.1989.
9. Feeling dissatisfied with the order dated 7.9.1989 passed by the Appellate Authority, Ludhiana, the present revision petition has been filed before this Court.
10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
11. During the pendency of revision petition Rajiv Jain son of Nek Civil Revision No.3229 of 1989 6 Chand moved an application under Order 1 Rule 10 of the CPC for impleading him as applicant in view of sale deed No.2882 dated 18.5.2005 by Tulsi Dass in his favour. The notice of the said application was given to the opposite party. The said application was ordered to be heard along with the main case.
12. During the course of arguments, the prayer for arraying him as party has not been opposed. Otherwise also, since he has purchased the property during the pendency of the present petition and as such he stepped into the shoes of the landlord. So, the application stands allowed.
13. Necessary correction be made in the memo of parties.
14. The controversy in the present lis revolves around the contentious issue No.1; whether the petitioners are the sub-tenants in the demised premises or direct tenants under the landlord Tulsi Dass. The second regarding the non-payment of rent by the petitioners?.
15. The case of the landlord was that premises was let out to Dev Raj, who executed rent note in his favour and Dev Raj has let out the premises in favour of the present petitioners. The learned Rent Controller, after appraisal of the evidence gave a categoric finding that petitioners are the direct tenants under landlord Nirmal Dass. However, the Appellate Authority upset that finding and held that the petitioners are sub-tenants in the premises being tenants of Dev Raj and passed eviction order on the ground of subletting. The Rent Controller has not framed any issue regarding payment of rent. The Appellate Authority without discussing anything on this controversy passed the eviction order on the ground of non-payment of rent also.
Civil Revision No.3229 of 1989 7
16. First of all, the controversy whether the petitioners are direct tenants under Nirmal Dass or sub-tenant has to be decided. The main reliance of the Appellate Authority to reach at conclusion of sub-tenancy in favour of the petitioners was the rent note executed by Dev Raj in favour of Nirmal Dass.
17. Man may tell a lie but the circumstances do not. According to the case of the landlord Dev Raj was inducted as tenant in respect of three shops on the groundfloor along with two rooms one kitchen and bath room on the first floor and three Miyanies on the second floor in the year 1970 at a monthly rent of Rs.200/-. The tenancy was said to be oral. It is further pleaded that landlord in the month of July, 1976 has given one store and one Sehan @ Rs.250/- per month and Dev Raj executed rent note dated 10.7.1974 in favour of Nirmal Dass, which has been proved on the file as Ex.A-1. Dev Raj has admitted the factum of taking the premises on rent and the factum of subletting of the shops in question to the petitioners. To prove the said rent deed Ex.A-1, landlord examined PW-1 Ram Nath, who in his cross-examination has admitted that he developed acquittance with landlord on account of relationship with Dev Raj, who was his friend earlier. He has further stated that Des Raj introduced him to be the landlord. The other marginal witness of the rent note Munshi Dass has stated in his cross-examination that he has been prosecuting the cases on behalf of landlord and his son before the Rent Controller in respect of earlier eviction petition filed against the present petitioners. He has been working with the landlord for the last 26-27 years. In the cross-examination, he has further stated that he does not know the present petitioners, who were occupying Civil Revision No.3229 of 1989 8 the shops in question since 1970. Petitioner admitted that neither he nor his father made any mention of rent note alleged to be executed by Dev Raj in their favour in the earlier petitions. So, the learned Rent Controller reached to the conclusion that Ex.A-1 is not a genuine document. Another circumstance, which militates against the case of the landlord is that the tenants have produced on record the documentary evidence that they are in possession of the property since 1970. The case of the landlord dashes to the ground when he pleaded that Dev Raj has sub-letted the rooms in the year 1975.
18. The Rent Controller, after appraisal of the evidence reached to the conclusion that landlord has failed to prove the relationship of landlord and tenant between him and Dev Raj. The subletting will arise only if Dev Raj was in possession. No documentary evidence has been placed on the file that Dev Raj ever remained in possession of the property. Amarjit Singh petitioner produced on record the bill and receipts Ex.RW-1 to Ex.RW-21. Tulsi Ram earlier filed Rent Petition No.99 of 1980 in the year 1980 against Ved Parkash, Jagdish Lal, Nek Chand and Amarjit Singh on the ground of sub-tenants. The said eviction petition was dismissed as withdrawn on 11.6.1982. Nirmal Dass filed another rent petition No.77 of 1979 against Ved Parkash showing him as sub-tenant under Dev Raj. That petition was also dismissed as withdrawn on 6.11.1979. In the assessment register for the years 1973-74, 1974-75 and 1975-76 Ex.RW-1/27, Rajesh Toor, Jagdish Kumar and Amar Electric store have been shown as direct tenants under Nirmal Dass. Similar position has been shown in assessment register Ex.RW-1/25.
Civil Revision No.3229 of 1989 9
19. The other circumstance, which clinches the issue altogether, is the notice Ex.R-1 issued to Amarjit Singh by Nirmal Dass. In paragraph No.2 of notice dated 11.1.1979 Ex.R-1, it has been mentioned that Amarjit Singh c/o of Amar Electrical is the tenant under Nirmal Dass. Ex.R-2 is the notice issued to Jagdish Lal son of Tirath Ram that he is tenant in the demised premises under the landlord Nirmal Dass. In notice Ex.R-3 issued to Nek Chand applicant by Nirmal Dass also it has been mentioned that he is the tenant under Nirmal Dass. In all these notices Ex.R-1 to R-3, it is nowhere mentioned that the premises was rented out to Dev Raj. The execution of these notices have not been denied during the course of arguments by the learned counsel for the respondents rather he has also referred these notices during the course of arguments. There is no recital to Ex.R-1 to Ex.R-3 that Dev Raj was the tenant and he has let out the same to the petitioners. All the petitioners have been described as direct tenants under Nirmal Dass in these notices. However, it is mentioned in these notices that petitioners have sublet the premises to Amarjit Singh. The said assertion made in the notices, demolish the case of subletting altogether. The learned Appellate Authority has not taken into account all these documents. So, in these circumstances, the judgment of the Appellate Authority suffers from illegality and is the result of misreading, misinterpreting and ignoring the documentary evidence proved on the file and as such, the judgment of the Appellate Authority does not sustain the test of legal scrutiny. The arguments advanced by the counsel for the petitioner to the effect that Dev Raj has been introduced just to make out a ground for subletting, carries weight and has to be accepted. There is no Civil Revision No.3229 of 1989 10 documentary evidence on the file to prove the fact that Dev Raj ever remained in possession.
20. Four shops have been stated to be subletted by Dev Raj. The fact that one person has been given four shops i.e. landlord has given four shops to Dev Raj on one occasion, does not appeal to the reason. In case a person wants to carry on the shop, he will take one shop on rent and not three shops. The landlord having good relations with Dev Raj has been used as a tool in getting the order of eviction.
21. One another circumstance which also demolishes the case of the landlord is in respect of execution of sale deed dated 18.5.2005 in favour of Rajiv Jain. From the perusal of the said sale deed, it is revealed that Tulsi Dass vendor has mentioned that one shop and residential portion is with Nek Chand tenant and other three shops are with tenants and purchaser (Rajiv Jain) will be responsible for taking possession and rent from these tenants. It is not mentioned in the sale deed, which is basis of Rajiv Jain to continue with the present revision that Nek Chand and other petitioners sub-tenants under Dev Raj.
22. Another circumstance, which militates against the case of the petitioners is that Nek Chand petitioner is non-else but the father of Rajiv Jain, who has been arrayed as landlord. During the course of arguments, it was pointed out by the counsel for the landlord/respondents that they will not press his eviction petition against Nek Chand, his father. Nek Chand and other petitioners are placed in the same situation.
23. So far as the ground of eviction in respect of non-payment of rent is concerned, no issue in this regard has been framed by the Rent Civil Revision No.3229 of 1989 11 Controller. It is not disputed that tender was made by these tenants, but that has been refused. The Appellate Authority has accepted this ground in just one line, without discussing the fact that rent has already been deferred. So that ground for eviction is also not available to the landlord in view of the tender made by the petitioners before the Rent Controller.
24. Shri M.L.Sarin, learned Senior counsel, during the course of arguments, has raised another legal question that second eviction petition is not maintainable in view of order 2 Rule 2 CPC, but that controversy is of academic nature, in the present case as the landlord has failed to prove the factum of sub-tenancy.
25. The argument advanced by learned senior counsel Shri M.L.Sarin to the effect that the conduct of Dev Raj is unusual in accepting the sub-tenancy, carries weight and has to be accepted. Normally, in case Dev Raj would have been a tenant of the demised premises, in that case he would not have accepted the factum of sub-tenancy in favour of petitioners but have contested the petition by tooth and nail. Since he was merely an instrument in getting the eviction order on the ground of subletting against the petitioners in collusion with landlord and as such he seems to have been not contested the rent petition. Nand Kishore, other respondent has also been arrayed as respondent simply to strengthen the case of the landlord regarding ground of eviction. In the earlier rent petition on the ground of subletting does not include his name and he was not arrayed as respondent in that case decided in the year 1990.
26. In authority Smt.Ram Devi vs. Lal Chand and another 2005(2) RCR page 420, it has been held that mere proving the rent note in Civil Revision No.3229 of 1989 12 favour of the tenant would not prove the sub-tenancy against other. The landlord has to prove the fact that tenant remained in possession before parting with possession to the sub-tenant.
27. In authority Amar Singh vs. Gopal and another 2004 (1) RCR page 108 it has been held by this Court that landlord has to first establish tenancy in favour of the tenant and others to prove that there was subletting without his consent.
28. In authority Ram Sarup Gupta (Ludhiana) vs. Om Parkash Chopra and others 1986 HRR page 482 it has been held that if the landlord failed to prove that tenant remained in possession in spite of the rent note in that case the sub-tenancy remains unproved. The document of rent note is merely a paper transaction.
29. In authority Subhash Chander vs. Surinder Singh and others 1994 HRR 524 it has been held that sham transaction of pendency has to be ignored.
30. In authority Laxmi @ Anandi (Smt.) and others vs. C.Setharama Nagarkarshri and ors 1996(1) RLR 118, it has been held that onus to prove the sub-tenancy lies on the landlord. Similar view was taken in authority Dev Dutt Verma vs. Ajit Singh & others 1965 Current Law Journal 341.
31. In authority Ram Dhan Sharma vs. Shri Bishan Sarup Mittal and another 1994-1 PLR 492, this Court held that landlord has to prove two ingredients to prove the sub-tenancy :-
(i)tenant had parted with the exclusive possession of the property ; and Civil Revision No.3229 of 1989 13
(ii) the same is for valuable consideration.
32. Both these ingredients are missing in the present case and in spite of that Appellate Authority has accepted the appeal by disturbing the finding of Rent Controller on flimsy grounds.
32. In authority Om Parkash and others vs. Ram Kumar and others 1991 HRR 86, it has been held that in case the landlord filed the ejectment application against the tenant while he had admitted that the sub-tenant was in actual possession of the demised premises and landlord do not seek amendment of the application to implead the sub-tenant as party, in that case, the eviction order cannot be passed on the ground of non-payment of rent.
33. In authority Gurdial Singh vs. Rajeshwar Dayal 2008(1) RCR page 1, this Court has held that in case landlord seeking eviction of sub-tenant on the ground of arrears of rent and petition is dismissed, a person who is impleaded as sub-tenant cannot be evicted for non-payment of arrears of rent as he was not admitted as tenant.
34. In authorities Biswanath Poddar vs. Archana Poddar 2001 (2) RCR 451, and Joginder Singh Sodhi vs. Amar Kaur 2004(2) RCR page 493 are concerned in these authorities Hon'ble Apex Court has held that sub-tenant is not a necessary party and there must be written consent for subletting. There is no dispute to that proposition of law. However, on the facts of the present case, as discussed above, the landlord has failed to prove the sub-tenancy. Similar view has been taken by this Court in authority Tek Chand vs. Beli Ram 1994 (3) PLR 440.
Civil Revision No.3229 of 1989 14
35. In authority Dial Singh vs. Amrish Kumar and others HRR 1995 SC page 130, it was held that if 3rd party is found in possession other than the tenant then it amounts to sub-tenancy. The tenant in that case was living abroad. Hence 3rd party was found in occupation and it was held that subletting stands proved. The said authority is distinguishable as the landlord has failed to prove that Dev Raj ever remained the tenant of the premises in dispute. The documentary evidence which is admittedly proved the fact of direct tenancy of the petitioners.
36. Authority Chaudhary Ram vs. Liba Sood and others 1998 (3) P.L.R. 191 is also distinguishable on the facts of the present case.
37. Authority Ram Chand of Jalandhar vs. Shamir Singh by L.R's & Anr. 1989 (1) CLJ (C.Cr. & Rec.) 485 is distinguishable as in that case there is concurrent finding of both the Courts below that sub- tenancy stands proved. In the present case, the Rent Controller has given the finding against the landlord which have been reversed by the Appellate Authority. No doubt the finding of the Appellate Authority should not be lightly interferred being a finding of fact but when it is proved on the file that the said finding has been returned ignoring the documentary evidence and even admission of the landlord in the notices, in those circumstances, this Court can interfere to dispense with the justice. It is settled law that paramount consideration for the Court is to dispense the justice and all other factors are subservant to that. Even in the notices Ex.R-1 to R-3, the petitioners have been mentioned as tenants and there is recital in those notices that Dev Raj was ever inducted. So, the Appellate Authority Civil Revision No.3229 of 1989 15 ignoring all these evidence reversed the well reasoned finding of the Rent Controller, cannot be approved even in the revision.
38. The Appellate Authority has given much weight to the admission of Nand Kishore admitting the sub-tenancy. The learned Appellate Authority has itself observed that admission of Nand Kishore respondent No.6 is not binding on the petitioner and as such admission of Nand Kishore is immaterial.
39. The landlord earlier filed eviction petition against Dev Raj and other four appellants but has not arrayed Nand Kishore as respondent. Nand Kishore has been arrayed in the present petition only to extract admission. From the discussion made by the Appellate Authority, it is revealed that it has observed that petitioners have failed to prove the direct tenancy. The eviction has been sought by the landlord on the ground that petitioners are the sub-tenants and as such the initial onus is upon the landlord to prove that there is a sub-tenancy. The landlord has failed to discharge the onus on that issue. The Appellate Authority has given much importance to the effect that replies to notices Ex.R-1 to Ex.R-3 have not been sent by the petitioners and as such it has been presumed that they admitted the sub-tenancy. This approach of the Appellate Authority is against the facts and law. The Appellate Authority has not even shown the ordinary courtesy to go through the notices Ex.R-1 to R-3 and has made the above said observations. As discussed above, in the notices Ex.R-1 to R- 3, it is nowhere mentioned that Dev Raj is the tenant and the petitioners are the sub-tenants. In these notices, the petitioners have been described as tenant but have stated that they have subletted the premises in Civil Revision No.3229 of 1989 16 favour of Amarjit Singh. This is not the case of landlord in the present petition. Instead of drawing correct conclusion that Ex.R-1 to R-3 demolished the case of the landlord regarding tenancy of Dev Raj and sub- tenancy of petitioners. The Appellate Authority has taken these documents against the petitioners. It so seems that the Appellate Authority has shut its eyes completely before deciding the appeal. The Appellate Authority has nowhere returned a finding that Dev Raj ever remained in possession of the demised premises. The Appellate Authority has not taken into account the fact that earlier rent has been accepted on behalf of the petitioners. After going through the whole of the discussion, it so seems that Appellate Authority has seems to under the impression that onus to disprove the sub- tenancy is on the petitioners. This approach of the Appellate Authority is against law. The initial burden to prove sub tenancy is always upon the landlord and not on the sub-tenant.
In view of the above discussion, the revision petition succeeds and the same is accepted. The judgment dated 7.9.1989 passed by the Appellate Authority, Ludhiana stands set aside and the order dated 27.10.1986 passed by the learned Rent Controller, Ludhiana stands restored. The eviction petition stands dismissed with costs throughout.
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
September 19, 2011
sv