Punjab-Haryana High Court
Jagdish Chand vs Ved Parkash Puri And Anr. on 4 June, 1990
Equivalent citations: (1990)98PLR359
JUDGMENT
J.V. Gupta, Acting C.J.
1. This is tenant's petition against whom the eviction order has been passed by both the Courts below.
2. The landlord Ved Parkash rented out the shop in dispute vide rent note Ex. A-2, in the year 1978 to Jagdish Chand tenant. The preheat ejectment application was filed on 25th November, 1986, inter alia on the ground that the tenant has sublet the demised premises to his brother Baldev Kumar and, therefore, was liable to ejectment.
3. In the written statement it was denied that the tenant had sublet the demised premises to Baldev Kumar. It is stated that he was employed in the Military service as Naib Subedar at Delhi ; he had applied for the pre nature retirement as he has served more than 20 years' service and at the time of execution of the rent note, he had in mind to retire from service and to do business jointly with his brothers Raj Kumar, Baldev Kumar etc. as they constitute joint Hindu Family. When he executed the rent note in favour of Ved Parkash this fact was known to Ved Parkash that he was in Military service. One shop adjacent to the shop in quest on is on rent with Raj Kumar, the brother of the tenant, where he runs Scooter, Motor-cycle repair workship Whereas in the shop in dispute the tenant wanted to do the business of spare parts of Scooter etc Later on his application for premature retirement was refused by the Military Authorities and from the very inception of the tenancy, his brother Baldev Kumar is doing his business on behalf of all hits brothers, being Joint Hindu Family. A plea was also taken that the wife of the tenant Jagdish Chand a so looks after his bus ness. After framing the issues and allowing the parties to lead their evidence the Rent Controller found that the onus shifts on the other s de to prove as to how the person who is alleged to be sub tenant is in possession. According to the Rent Controller, it is not proved satisfactorily that Baldev Kumar is not subtenant under Jagdish Chand tenant Rather the conclusion is that the tenant his parted with the possession and that now possession is with Baldev Kumar respondent No 2 exclusively, and that he is running his bus ness in the demised premises Consequently, eviction order was passed on January 23, 1989. In appeal, the learned Appellate Authority affirmed the said findings of the Rent Controller and thus maintained the eviction order.
4. Learned counsel for the tenant petitioner submitted that from the very inception of the tenancy Baldev Kumar is running his business on behalf of all the brothers of the tenant as Jagdish Chand tenant was in Miltary Services even prior to the execution of the rent note Ex. A-2 in the year 1978. Thus, argued the learned counsel, since Baldev Kumar was in occupation of the premises from the very inception of the tenancy, the ejectment application filed in the year 1986 was not maintainable and no eviction order could be passed on the ground of subletting. It was also contended that the question of subletting could not arise because at the time of execution of the rent note in the year 1978 the tenant was not in position to occupy the shop as be was in Military service and since he continued in Military service in spite of his resignation, the shop was being occupied by Baldev Kumar on behalf of his brothers. Thus, it was argued that the findings of the authorities below in this behalf was wrong and improper.
5. On the other hand, learned counsel for the landlord respondent submitted that both the authorities below have given the concurrent finding on the question of subletting and that being a finding of fact, could not be interfered with in revisional jurisdiction Reference was made to Sri Raja Lakshmi Dyeing Works v. Rangaswamy, A.I.R. 1980 S.C. 1253, Rajbir Kaur v. M/s S. Chokosiri and Co., A.I.R. 1988 S.C. 1845. and Sh. Mehar Elahi v. Sh. Verha Mal., 1982 (2) R.C.J. 471.
6. After hearing the leaned counsel for the parties, I find merit in this petition It is not disputed that from the very inception of the tenancy Jagdish Chand-tenant was never in occupation being in Military service. He got the shop in dispute on rent on the assumption that his resignation from the Military service would be accepted, but it was never a accepted and therefore, continued in the Military service. It is, therefore, evident that from the very inception of the tenancy, his brother Baldev Kumar is in occupation of the premises on his behalf. In these circumstances, the question of subletting the premises by the tenant to his brother could not arise. On the admitted facts, the approach of the authorities below was wholly wrong and illegal. The eviction application was filed in the year 1986, i. e. after more than 10 years when Bildev Kumar was running the business on the demised premises on behalf of his brother Jagdish Chand, who was in Military service prior to the execution of the rent note and continued thereafter uptil today. No finding could be given that the premises were sublet by the tenant in favour of his brother, Bildev Kumar.
7. Consequently, this petition succeeds; the impugned order is set aside and the application for ejectment is dismissed with no order as to costs.