Punjab-Haryana High Court
Brij Mohan vs Meera Devi And Ors. on 6 July, 1999
Equivalent citations: (1999)123PLR175
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Brij Mohan (hereinafter described as 'the petitioner') directed against the order passed by the learned Rent Controller, Sirsa dated 21.11.1995 and of the Appellate Authority, Sirsa dated 9.3.1998. The learned Rent Controller had passed an order of eviction against the petitioner and Anr.. The said order was upheld by the Appellate Authority.
2. The relevant facts are that respondents Meera Devi and Pushpa Devi had filed an eviction petition against Shakuntia Devi and Surinder Dass (respondents 3 and 4) besides the petitioner. It was alleged that Shakuntia Devi and Surinder Dass were partners of M/s Mahant Electric Company. They were tenants in the suit property. The ground of eviction which survives for consideration was that respondents 3 and 4 were stated to have sublet the premises to the petitioner. It was asserted that respondents 3 and 4 are the original tenants. The partnership had been dissolved and the possession has been handed over to the petitioner who is carrying on business as proprietor of M/s Mahant Ejectric Company.
3. Respondents 3 and 4 did not contest the petition for eviction and were proceeded ex parte. The eviction petition was contested by the petitioner. He admitted that respondents 1 and 2 are the owners of the demised premises. As per the petitioner he is a tenant in the premises in his own right. He was paying rent to respondents 1 and 2 which was accepted. Thus, it was denied that property had been sublet to him.
4. The learned Rent Controller framed the issues and recorded the evidence. The Rent Controller recorded that no rent agreement had been executed. It was held that rent had not been paid to respondents 1 and 2 and that even if the rent had been paid, it will not make the petitioner a tenant therein. It was concluded that property has been sublet to the petitioner and order of eviction was passed. An appeal was preferred with the Appellate Authority. The learned Appellate Authority approved the findings of the learned Rent Controller and the appeal was dismissed. Hence, the present revision petition.
5. On behalf of the respondents an objection was raised that there are clear findings of fact arrived at by the learned Rent Controller and the Appellate Authority and, therefore, this Court will not interfere in the said findings of fact. The attention of the Court was drawn to the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 in this regard.
Section 15(6) of the said Act reads:-
1"15(6) (The High Court,) as revisional authority, may, at any time, on its own motion or on the application of any aggrieved party, made within a period of ninety days, call for and examine the record relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as, to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. In computing the period of ninety days the time taken to obtain a certified copy of the order shall be excluded."
It is abundantly clear from aforesaid that this Court can only interfere in the order passed by the learned Rent Controller and the Appellate Authority, if the legality and propriety of the same is questionable. Ordinarily the findings of fact arrived at by the learned Rent Controller and the Appellate Authority will not be interfered with. This question had been considered by the Supreme Court more often than once in the case of M/s Bharat Sales Ltd. v. Life Insurance Corporation of India, 1998(1) Rent Law Reporter 137. The Supreme Court held that findings which had been arrived at by the authorities need not be disturbed. This Court in the case of Chaudhary Ram v. Liba Sood and Ors., 1998(2) Rent Law Reporter 260 also while construing Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 held:-
"There is another way of looking at the matter. Both the Courts namely the learned Rent Controller and the Appellate Authority have returned findings of the fact. They are based on evidence. The same cannot be described to be absurd and that there was misreading of evidence. Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act will not permit this Court to re-appraise the evidence. As already noted above the findings are correct and, therefore, there is no scope for interference."
6. It is abundantly clear from aforesaid that findings of fact arrived at requires no interference unless they are erroneous, absurd or there is misreading of the evidence.
7. However, learned counsel for the petitioner very eloquently pleaded that there is total misreading of the pleadings of the parties. According to him in the petition for eviction, respondents 1 and 2 pleaded that cause of action arose to them in the year 1984 when partnership between respondents 3 and 4 was dissolved and exclusive possession was given to the petitioner. While in the replication it was asserted that respondents 1 and 2 could not know of this fact immediately. To appreciate the said contention, reference can well be made to the pleadings in this regard in the petition for eviction. Respondents 1 and 2 pleaded :-
"That the cause of action arose to the applicants on non-payment of rent every month and also in the year 1984 when the partnership was dissolved between the respondent No. 1 and 2 and exclusive possession was handed over to respondent No.3 by them."
In the written statement filed the petitioner had asserted that he is a tenant since 1.4.1984 in the entire premises at an yearly rent of Rs.7,500/-. The rent was being received by respondents 1 and 2 in equal shares. He also stated that rent was paid namely for first six months to respondents 1 and 2 followed by the rent of subsequent six months. The replication was filed and it was pleaded by respondents 1 and 2-landlords:-
"f(ii). That regarding para No.
(f)(ii) of the written statement it is denied for want of knowledge that respondent No. 3 became the proprietor of M/s Mahant Electric Company since 1.4.1984. The petitioners never knew that the tenants i.e. respondents No.1 and 2 had dissolved the firm or that Brij Mohan respondent No. 3 had become proprietor of the firm w.e.f. 1.4.1984. Respondent No. 3 has got no concern with the tenancy rights. It stands admitted by respondent No. 3 that he at present is in exclusive possession of the premises in dispute and that respondents No. 1 and 2 have left the possession of the premises and have got no concern with the possession of the premises. It is wrong that the fact of subletting is only false and wrong or that it is a concocted story."
It is abundantly clear from aforesaid that in the petition the respondent-landlords have never alleged that they know from 1.4.1984 that partnership of respondents 3 and 4 has been dissolved. It had simply been asserted that property had been sublet from 1.4.1984. The pleadings have to be re-appraised as a whole. Reading of the same clearly shows that though the partnership of respondents 3 and 4 was dissolved on 1.4.1984, the petitioner claims that he came to know of this dissolution much later. The said contention, therefore, that there is an admission in this regard by respondents 1 and 2 in the pleadings must be rejected.
8. Confronted with that position it was alleged that respondents 1 and 2 admitted the payment of rent. As already mentioned above, the learned Rent Controller and the Appellate Authority believed the said version that rent was paid to respondents 1 and 2 by cheques. The said findings of fact cannot be disturbed. But still the learned counsel read the replication to assert that this fact would be admitted. The relevant part of the replication reads:-
"f(i). That para No. 2(f)(i) of the written statement is wrong and that of the petition is correct. It is wrong that respondent No. 3 Brij Mohan is a tenant over the premises in dispute since 1.4.1984. The rent of the premises had throughout been received from respondents No. 1 and 2 who according to the information of the petitioners were carrying on their business in the name and style of M/s Mahanat Electric Company, Sirsa. It was known to the petitioners that Brij Mohan Sabharwal was conducting the business as Manager on behalf of the said firm i.e., M/s Mahant Electric Company, Sirsa. The petitioners never came to know that the firm M/s Mahant Electric Company had been dissolved or that the same had become the proprietorship of Brij Mohan - respondent No. 3. The petitioners however had refused to receive two cheques from Brij Mohan-respondent No. 3 when they came to know that the firm had been dissolved and that respondent No. 3 was conducting the business in his individual capacity as proprietor of the firm. To the knowledge of the petitioners Account No.727 was not the account of Mahant Electric Company of which respondents No.1 and 2 were the partners. It is incorrect that rent for six months was paid vide two separate cheques (Rs. 1,875/-each) dated 25.10.1984.
Subsequent two cheques dated 1.6.1985 (Rs. 1,875/- each) as rent from 1.4.1985 were also not accepted by the petitioners because the cheques indicated that they had not been issued by the previous firm. The petitioners, therefore, had refused to encash the cheques dated 1.6.1985 and had received the payment in cash on behalf of respondents No. 1 and 2. Subsequent two cheques dated 13.12.1986 were also refused by the petitioners on the same ground and the petitioners on coming to know about the sub letting of the shop immediately came to the court and have filed the present petition for eviction.
It may be further added here that respondent No. 3 was also acting as Manager on behalf of respondents No. 1 and 2 and the petitioners had no reason to doubt that the old firm had been dissolved or that respondent No. 3 had started his own business in the shop.
The mere receipt of rent by the petitioners does not mean that the petitioners had accepted respondent No. 3 to be their tenant over the premises in dispute. It is also a settled law that mere payment of rent even by a sub tenant does not make him a tenant directly under the landlord."
In fact the file of the learned Rent Controller had been called to verify this fact. Reading of the same clearly shows that it had not been admitted that rent had been accepted from the petitioner directly. The findings arrived at, therefore, by the Rent Controller and the Appellate Authority indeed does not require any interference.
9. Learned counsel for the petitioner asserted that husbands of respondents No. 1 and 2 were carrying on business nearby and, therefore, if there was subletting he would have known earlier. The said plea must be stated to be rejected. It is in evidence that petitioner started carrying on business as proprietor by the same name in which the firm of respondents 3 and 4 was running. Therefore, chances of being mislead was obvious. The truth would come little later.
10. There is another way of looking at the matter. At best the petitioner claims that petitioner had paid rent for sometime to respondents 1 and 2. It transpired in evidence that even when respondents 3 and 4 were tenants, the petitioner could operate the accounts. A tenancy would only be created when there is an intention to create a demise in the property. Mere payment by itself will not make a person tenant in the suit premises. That intention is totally missing. Even if it is presumed that rent was paid by the petitioner while he was earlier also to give the cheques on behalf of the respondents, the necessary inference would be that it will not create a demise in the property.
11. As a result of the reasons given above, the findings of fact of the learned Rent Controller and the Appellate Authority that petitioner is not a direct tenant in the premises require no interference. Evidence recorded has been appreciated and it need not be re-appraised.
12. For these reasons, the revision petition being without merit must fail and is dismissed. The petitioner is granted three month's time to vacate the property.