Punjab-Haryana High Court
Raghbir Singh vs Resham Singh And Anr. on 28 May, 1998
Equivalent citations: (1998)119PLR804
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Raghbir Singh (hereinafter described as 'the petitioner') directed against the order passed by the learned Rent Controller, Hoshiarpur, dated 3.9.1982 and the Appellate Authority dated 13.6.1983 respectively. The learned Rent Controller had passed an order of eviction against the petitioner and respondent No. 2 Kuldeep Singh. The same was affirmed by the appellate authority. Hence, the present revision petition.
2. The relevant facts are that Resham Singh respondent No. 1 had filed a petition for eviction with respect to the shop in dispute. The ground of eviction with which the present revision petition is concerned pertains to the fact alleged that property had been let out to Raghbir Singh but he had sublet the same to Kuldeep Singh. The other ground of eviction taken up was that the petitioner had failed to pay the arrears of rent from 1.8.1980 at the rate of Rs. 70/- p.m.
3. The said ground of eviction was contested. It was pointed that petitioner himself was carrying on the business of a sweet meat shop in the said property. Respondent No. 2 is alleged to be in no way concerned with the shop. On the first date of hearing, the arrears of rent were tendered by the counsel but the same were not accepted on the count that Shri R.G. Kohli was not duly appointed agent of the petitioner.
4. The learned Rent Controller had framed the issues and held that the property in question had been sublet by the petitioner to respondent No. 2 because petitioner himself was a proclaimed offender and it was respondent No. 2 who was carrying on the business in his own right. The ground of eviction that payment of rent had not been made or that on the first date of hearing, the rent was not tendered, the findings returned by the Rent Controller were that Shri R.G. Kohli was representing the petitioner as a counsel and he tendered the entire arrears of rent on the first date of hearing. Thus, the order of eviction was only passed with respect to the ground that the property had been sublet. An appeal was filed and the Appellate Authority approved the findings of the Rent Controller that the said property had been sublet. It was held that it was respondent No. 2 who was carrying on the business independently in the property in question. The petitioner cannot be allowed to take a stand that respondent No. 2 was merely a licensee. After dismissal of the appeal, the present revision petition had been filed.
5. On behalf of the petitioner it was highlighted that respondent No. 2 is the brother of the petitioner and in case of brothers, it cannot be inferred that there would be subletting of the property. In this connection reliance was placed on the decision of this Court in the case of Syed Faroze Ali Shah v. Syed Jamil Ali and Anr., 1980(2) Rent Law Reporter, 549. It was held that merely permitting the brothers to use the premises without consideration while retaining legal possession, does not amount to subletting. Similarly, attention of the court was being drawn towards the decision of the Supreme Court in the case of Smt. Krishnawati v. Shri Hans Raj, A.I.R. 1974 S.C. 280. In the said case the wife had taken the property on rent. The shop was being run by her husband. It was held that it did not amount to subletting under the Delhi Rent Control Act, 1958.
6. It is well known that two necessary ingredients are to be taken note of before it can be held that the property had been sublet. The same are that sub-tenant should be in exclusive possession of whole or part of the building and further that it was for valuable consideration,
7. Both the courts below had returned certain concurrent findings of the fact. Both the petitioner and respondent No. 2 are brothers. Petitioner was involved in a criminal case. He remained absent for many years. In his absence respondent No. 2 carried on the business of sweet meat selling in the shop. Respondent No. 2 carried on the business while the petitioner was absent. Possession of respondent No. 2 was established from the statement of Harpal Singh AW-2, Inspector Weights and Measures. He had challaned respondent No. 2 for carrying on business in the said premises. It was also established from the statement of Ram Parkash AW-3 that ration-card for sugar for running a shop was issued in the name of respondent No. 2.
8. These findings of fact require no interference. But before there can be any subletting, there must be an overt act of the tenant. It is recorded by both the Rent Controller and the Appellate Authority that petitioner had gone underground to avoid his arrest in the criminal case pending against him. If in his absence respondent No. 2 carried on the business, it will not amount to any overt act of the petitioner. It cannot in these circumstances be taken that respondent No. 2 was carrying on the business in his own right and some valuable consideration had passed. Therefore, it cannot be held that there would be subletting of the property in question. The findings of the learned Rent Controller and the Appellate Authority on this, ground cannot be sustained.
9. In that event learned counsel appearing on behalf of the respondent-landlord (respondent No. 1) urged that in any case the ground of eviction should be available for non-payment of rent. The precise argument was that as per the statement of the petitioner in court, he has sever engaged the counsel who tendered the rent. Therefore, there was no proper tender on the first date of hearing. Indeed in this regard the petitioner has made a strange statement. He contends that power of attorney has been given while it was blank to his brother so that it could be used. It bears his signatures but he has not engaged the counsel.
10. Can in these circumstances, it be stated that the counsel who tendered the rent did not represent the petitioner? At the first blush the argument looked good but on closure scrutiny the difficulties were positively on the canvas. On the date when the tender of the rent was effected by the counsel who is stated to be not normally been engaged, the petitioner not even had been served. Once the petitioner had not been served on that dale, the question of tendering the rent will not arise. In fact ostensibly, the counsel was representing the petitioner. He conducted the case. He was not disowned during the trial. The statement of the petitioner, therefore, has to be appreciated in that light. It must be taken that he endorsed and accepted the said counsel to be representing him. In that backdrop looking at the matter at either angle it is clear that respondent No. 1 landlord cannot urge that these was no proper tender of rent on the first date of hearing namely 13.11.1980. As an off shoot thereto it must follow that ground of eviction was not available.
11. As a result of the reasons given above, the revision petition is allowed. The impugned judgments passed by the learned Rent Controller and the Appellate Authority are set aside instead the eviction application is dismissed.