Punjab-Haryana High Court
Buta Ram vs Balwant Singh on 19 August, 1987
Equivalent citations: AIR1989P&H17, AIR 1989 PUNJAB AND HARYANA 17, (1987) 2 RENCR 460 1987 HRR 617, 1987 HRR 617
JUDGMENT S.S. Sodhi, J.
1. The matter here arises from the landlord's petition under the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Act') for the ejectment of his tenant from the shop let out to him. Ejectment was sought on various grounds, but the two that now survive for consideration being those under Section 13(2)(iii) and (v) of the Act, namely; that the tenant had, without the consent of the landlord demolished the front verandah and stair-case of the shop and had thereby materially imparied its value and further that the tenant had ceased to occupy the shop having left possession thereof for a continuous period of more than four months without reasonable cause.
2. The tenant controverted both the pleas on the basis of which his ejectment was sought. It was denied by him that the verandah and the stair-case had been demolished. According to him, there was in fact no stair-case in the shop. As regards the other plea, it was his assertion that he and his son, who was a member of the joint family, had been in continuous possession of the shop and had not thus ceased to occupy it.
3. The rent controller found in favour of the landlord holding that the tenant had demolished the verandah of the shop and had thereby materially imparied the value and utility of the shop and further relying upon the judgment of this Court in Jai Chand Jain v. Sohan Lal, 1975 Ren CJ 157, that the tenant had also ceased to occupy the shop for more than four months prior to the filing of the ejectment application. The ejectment of the tenant was consequently ordered on both these grounds.
4. The appellate authority, on appeal, set aside the order of ejectment, holding that the finding of the rent controller that the tenant had diminished the value and utility of the shop, by demolishing the verandah, was not correct and further, following the judgment of this Court in Balwant Singh v. Gurdial Singh, (1971) 73 Pun LR 1032, that the tenant could not be said to have ceased to occupy the shop for a continuous period of more than four months.
5. A reference to the material on record would, however, show that the finding of the appellate authority that the tenant had not demolished the verandah of the shop and thereby diminished its value and utility cannot indeed be sustained. It will be seen that the landlord A.W. 1 Buta Ram clearly stated that the verandah had been demolished by the tenant. This was supported by A.W. 2 Charan Das -- the owner of the shop opposite the demised premises. The significant evidence here is that of R. W. 1 Mangal Singh draftsman, who was examined by the tenant. It was his testimony that in 1967 there existed a verandah in front of the shop. He further deposed that he had shown this verandah as a chhappar in the site plan exhibit R/2 which he had prepared in July, 1975. The tenant R. W. 2 Balwant Singh, on his part, merely denied that he had caused any harm to the shop. It is pertinent to note that he did not specifically state that he had not demolished the verandah. When once it stood established that there was a verandah in the shop, the onus lay heavy upon the tenant to show what happened to it. There is no evidence to suggest that it still exists, nor as mentioned earlier, is there any statement by the tenant to the effect that he had not demolished it. In this situation, there can be no escape from the conclusion that the rent controller rightly arrived at the finding that the verandah had been demolished by the tenant and the value and utility of the shop had been materially impaired thereby. The tenant is thus clearly liable to ejectment on this ground.
6. It was, however, on account of the other ground, namely; that under Section 13(2)(v) of the Act, regarding the tenant ceasing, without reasonable cause, to occupy the demised premises for a continuous period of more than four months, that this matter came to be placed before us, keeping in view the conflicting judgments of this Court in Jai Chand Jain (1975 Ren CJ 157) and Balwant Singh's cases (1971 (73) Pun LR 1032) (supra). The conflict there being with regard to what was meant by "the tenant has ceased to occupy the building" in terms of Clause (v) of Sub-section (2) of Section 13 of the Act.
7. Jai Chand Jain's case (supra) concerned residential premises. The tenant had admittedly not occupied them for more than four months. A plea was raised that during the relevant period, his brother, who was a member of his family, had been living there and since the premises had never been left unoccupied by the tenant, in the sense, that his family members had been occupying it, it could not be said that the tenant had ceased to occupy the premises. This was negatived with the observation, "the provision in Clause (v) of Sub-section (2) of Section 13 of the Act takes away the statutory protection against eviction from a tenant who has himself failed to occupy the building for continuous period of four months without reasonable cause notwithstanding that his family members may have been occupying the same during the relevant period."
8. A different view had, however, been expressed by Chief Justice Harbans Singh in Balwant Singh's case (1971 (73) Pun LR 1034) (supra). The tenant there was the father. Father and sons were jointly doing business in the shop. The father went abroad and in his absence, the sons continued with the same business, and as before, for the benefit of the family. Admittedly, the tenant, that is, father had not personally occupied the premises for a period exceeding four months. It was held that Clause (v) of Sub-section (2) of Section 13 of the Act "is a clause, which is to cover a case where the premises are locked and have not been actually used for a period of over four months and does not cover a case where the premises are continuously in use though the tenant himself does not stay there". Further, it was observed that the mere absence of the tenant from the premises is not material for the purposes of Clause (v). This being so, it was held that as the sons were doing the same business and as before for the benefit of the family, for and on behalf of their father, the case could not possibly fall under Clause (v) and the tenant was thus not liable to ejectment thereunder.
9. Indealing with the point in issue, it will be seen that the pivotal words in Clause (v) of Sub-section (2) of Section 13 of the Act are 'ceased to occupy". The word 'occupy' is a word of uncertain meaning. The interpretation of the word 'occupation' came up for consideration before the Supreme Court in Bimla Devi v. First Addl. Dist. Judge, (1984) 2 Ren CR 102: (AIR 1984 SC 1376), where it was recognized that 'occupation', may take various forms. It was accordingly observed that even if a landlord is serving out-side or living with near relations, but makes casual visits to his house and thus retains control over the entire or a portion of the property, he would, in law, be deemed to be in occupation of the same.
10. Such thus being the meaning of the word 'occupation', it would clearly be erroneous to construe it as a mere synonym of the word 'possession', that is, to treat a tenant to be in occupation only if he is in actual physical possession of the demised premises. The view taken by Chief Justice R. S. Narula in Jai Chand Jain's case (1975 Ren CJ 157) (supra) is thus clearly too narrow to be commended and we are consequently constrained to respectfully prefer that of Chief Justice Harbans Singh in Balwant Singh's case (1971 (73) Pun LR 1032)(supra). It would be apt here to reproduce, with our approval, a passage from this judgment which reads as under : --
"It was put to the counsel for the landlord as to whether a tenant would be in occupation of the premises within the meaning of Clause (v) if he himself sits at his house and his business at the demised shop is carried on by his. employee, or if the tenant starts another business in some other city, say, Delhi or Bangalore, and his business there takes him to that place and he has to stay there for more than four months while his business at his first shop is being carried on, on his behalf by his paid employees. The learned counsel had to concede that in both these cases the tenant would still be treated to be in occupation. It would obviously make no difference if instead of the employees, the business is carried on by his sons and instead of being away to Delhi or Bangalore, his business or other avocation takes him to a foreign country."
11. A similar view was also taken by this Court in Banarsi Das v. Surinder Kumar, (1975) 1 Ren CR 567. This was a case where, after taking a shop on rent the tenant constructed a show-room nearby and while he worked there, his son and servant carried on business in the shop on his behalf. It was held that it could not be said that the tenant had ceased to occupy the shop. The expression 'ceased to occupy' was construed to mean that the demised premises are left untenanted.
12. Next to note is Puran Singh v. Ram Murti, (1981) 2 Rent LR 448. The tenant in this case was the father. After taking the demised premises on rent, he took up service in another town leaving his family members in occupation of the rented building. It was held that the tenant could not be said to have ceased to occupy the demised premises. It was observed in this behalf that "when the family members of the tenant, who have been living with him from the very beginning and are dependant upon him, are in occupation of the premises in dispute, it cannot be held that the tenant has ceased to occupy the premises without any reasonable cause".
13. Finally, there is the judgment of the Supreme Court in Baldev Sahai Bangia v. R. C. Bhasin, (1982) 2 Ren CR 133 : (AIR 1982 SC 1091). This was a case under the Delhi Rent Control Act, 1958. The tenant, after living in the demised premises for some time with his father, mother, sisters and brother, went away to Canada followed by his wife and children. He did not return to India thereafter, but in his absence his mother and brother continued living in the rented house. It was held that the tenant could be held to have ceased to occupy the demised premises only when not only he, but also his family members actually did so. It was further observed, that 'family' has to be given a wider meaning, to include not only the head of the family, but all the members or descendants from the common ancestor, who were actually living with the same head.
14. The position in law stands settled, therefore that in order to be in occupation of the demised premises, physical possession of the tenant therein is not an essential requisite for avoiding the penal consequences of ejectment under Clause (v) of Sub-section (2) of Section 13 of the Act. The factual position, as emerges from the evidence on record, in this case has thus to be construed and appreciated in this light.
15. It will be recalled that the stand of the tenant in reply to the plea that he had ceased to occupy the shop for a continuous period of more than four months was that he and his son, who was a member of the joint family had been in continuous possession of the shop. When the matter came to evidence, the landlord A.W. 1 Buta Ram deposed that the tenant had not occupied the shop for about a year-and-half and further that the shop was in the occupation of Nirmal Singh, who was living separately from the tenant. A.W. 2 Charan Das supported him by deposing that for the last about a year, the tenant Balwant Singh had not been coming to the shop and that his son-Nirmal Singh lived separately from him. In cross-examination he stated that Balwant Singh was practising as a doctor at the bus-stand.
16. The important testimony to note here is that of the tenant R.W. 2 Balwant Singh, who gave his age to be 70 years. He deposed that he had four sons, namely; Sowarn Singh, Niranjan Singh, Harjinder Singh and Balwinder Singh. It is pertinent to note that he did not mention Nirmal Singh as being one of his sons. Indeed, in cross-examination he specifically denied the suggestion that he had ceased to occupy the shop and that his son Nirmal Singh was in possession of it. Further, he stated that as he had not been feeling well, he had been supervising the work of his sons for the last five to six years.
17. It would be apparent from the evidence led, that the tenant-Balwant Singh has not been in actual physical possession of the shop in question. It is pertinent to note that counsel could point to no material or record to show that the business being carried on at this shop was that of the tenant or was being carried on by someone for or on his behalf. As shown earlier, it was not any part of the statement of the tenant that the shop was in the possession or occupation of any of his sons. This being so, there can be no manner of doubt that the landlord has indeed established his case that the tenant had ceased to occupy the shop for a continuous period of more than four months without reasonable cause. This being so, the tenant is clearly liable to ejectment on this ground too.
18. The order of the Appellate Authority is accordingly hereby set aside and the tenant is ordered to be ejected from the demised premises. This petition is thus accepted. There will, however, be no order as to costs.
D.S. Tewatia, J.
19. I agree.