Punjab-Haryana High Court
Amar Singh vs Gopal And Anr. on 15 October, 2003
Equivalent citations: (2004)136PLR321
Author: Swantanter Kumar
Bench: Swantanter Kumar
JUDGMENT Swantanter Kumar, J.
1. This revision is directed against the judgment and order passed by the Appellate Authority, Bhiwani dated December 10, 1987 vide which the appeal preferred by the landlord Amar Singh was dismissed and the findings recorded by the learned Rent Controller on all issues were affirmed by the Appellate Authority.
2. Learned counsel appearing for the petitioner while impugning the judgment of the Appellate Authority, inter alia contended that the learned Courts below have failed to appreciate the evidence and have fallen in error in not relying upon the correctness of Ex.P1 a document executed by Shishpal. The Courts ought to have taken into consideration Ex.P2, an affidavit sworn by Gopal respondent No. 1, but the same has not been correctly appreciated. On the basis of these two documents, according to the learned counsel appearing for" the petitioner, the eviction petition filed by the landlord should have been decreed.
3. In order to appreciate the contentions raised on behalf of the petitioner, it would be necessary to refer to the bare minimum facts giving rise to this petition:
4. Amar Singh landlord filed a petition under Section 13 of the Haryana Urban Control of (Rent and Eviction) Act, 1973 (hereinafter referred to as the 'Act) against the respondent Gopal on the grounds of non-payment of rent for the period 1.9.1981 to 31.3.1983 at the rate of Rs. 2160/- per annum inclusive of tax, respondent No. 1 alleged to have sub-let the premises to Shishpal, respondent No. 2 without the consent of the petitioner and lastly that the respondent has materially impaired the value and utility of the demised premises by closing the same without any reason or cause since 1.2.1983. Upon notice, the respondents filed the written statement denying the averments made in the petition and it was claimed that the premises in question was let out by the petitioner to respondents No. 1 and 2 alongwith one Shri Ashok Kumar son of Sat Pal on 15.4.1975 on a monthly rent of Rs. 180/- per mensum including all taxes and the rent note was executed. Ashok Kumar was deemed to have retired from partnership on 4.10.1979 and since the, respondents No. 1 and 2 were jointly tenants of the property in question. Allegations with regard to non payment of rent impairment of the value and utility of the property as well as sub-letting were specifically denied.
5. On the pleadings of the parties, the learned Rent Controller framed the following issues:-
1. Whether the respondent has not paid due arrears of rent, interest etc. to the petitioner? OPA
2. Whether respondent No. 1 has sub let the premises in question to respondent No. 2 as alleged? OPA
3. Whether the respondent has ceased to occupy the shop in dispute for a period of more than six months from 1.2.1984? OPA
4. Whether respondent No. 1 has impaired the value and the utility of the premises as alleged? OPA
5. Whether the petitioner is estopped from filing the present petition by his own acts and conduct, if so to what effect? OPR
6. Whether the petition has been filed just to harass the respondent, if so to what effect? OPR
7. Whether the respondent is entitled to special costs, if so, how much? OPR
8. Relief.
6. After having permitted the parties to lead evidence the learned Rent Controller vide his judgment dated 30.9.1987 dismissed the ejectment petition against which an appeal was filed by the landlord which as already noticed was also dismissed by the learned Appellate Authority.
7. In the light of the above circumstances, now I proceed to discuss the contentions raised on behalf of the petitioner.
8. Ex.R1 is an extract of the entry made in the register of the petition writer dated 15.4.1975 regarding the execution of a rent deed between respondents No. 1 and 2 and one Ashok Kumar in favour of the petitioner, while Ex.P2 is photo copy of a document alleged to be an affidavit sworn by Gopal respondent No. 1. It is stated in the said affidavit that he had taken on rent shop No. 27 at the rate of Rs. 2160/- per annum including local taxes. Ex.P1 is the other document, original of which is alleged to have been signed by Shishpal in relation to shop No. 249, which he claims to have taken at a rent of Rs. 180/-per month.
9. The ejectment petition was filed by the landlord in relation to shop No. 27. Ex.R1 is a copy of the entry made by the deed writer in his register on 15.4.1975 indicating execution of a rent note inter se the respondents. Ex.R1 indicates execution of a rent note between Ashok Kumar, Gopal Krishan and the petitioner. Ex.P2 could not be relied upon and has correctly been rejected by the learned Courts below. Ex.P2 is a copy of the affidavit alleged to have been sworn by respondent No. 1. The petitioner neither served a notice upon the respondents to produce the original thereof nor took any steps seeking the permission of the Court for leading secondary evidence as original of the document was not available or was not in their power or possession.
10. Learned counsel for the petitioner referred to the statement of PW3 Ranjit Singh, who was a Clerk from the Municipal Committee, Bhiwani. He had produced one affidavit without either disclosing the name of the person, who had sworn the affidavit or even producing the original before the Court and getting photo copy thereof exhibited. She also relies upon the statement of PW5. The statements of both these witnesses are of no help to the petitioner inasmuch as Ex.P2 has neither been properly proved in accordance with law nor it has been in any way proved to demolish the case established by the respondents. As far as Ex.P1 is concerned, this is a document executed by Shishpal but in relation to shop No. M/249 which in no way is connected with the property in dispute which relates to shop No. 27. Thus, Ex.P1 is not relevant for the purpose of determining the matter in controversy. Ex.PW1/A is the original of this document, but the same is inconsequential as it refers to shop No. M/249 and not to shop No. 27 which is stated to be the shop belonging to the petitioner in the eviction petition.
11. Be that at it may it was for the landlord to produce documents to establish the tenancy being in favour of respondent No. land then to prove that there was sub-letting without the consent of the landlord. Admittedly, no rent note has been produced on record. The petitioner cannot rely upon or take advantage of the lacuna in the defence of the tenant-respondent, but is under obligation to discharge his onus in regard to the issues framed. The petitioner ought to have taken more care to produce documents which are not of material consequence for his case.
12. Learned counsel appearing for the petitioner, while relying upon a Division Bench judgment of this Court in case titled Bhagwan Dass and Anr. v. Khem Chand and Ors. A.I.R. 1973 Punjab and Haryana 477, contended that once no objection was taken by the respondents to the exhibition and admissibility of the document during the course of the trial, then they are estopped from raising any objection in the revision before this Court.
13. The proposition of law can hardly be disputed. There appears to be some discrepancy in the record available before this Court inasmuch as original, Exhibit P2 is not there and even the municipal file which was produced before the Court as referred to in the judgment of the first Appellate Court, is also not available. Even for the sake of argument, benefit on this score is given to the petitioner before this Court, still the question that remains to be considered is as to what is the effect of Exhibits P1 and P2 on the merits of this petition.
14. I have already discussed that Exhibit P1, original of which is on the record, relates to Shop No. M/249 and thus is of no consequence in regard to the disputed premises, that is, Shop No. 27. Learned counsel argued that Exhibit P1 though refers to Shop No. M/249, yet it relates to M/s Arvind & Co., being the tenants. As such, the respondents case in relation to tenanted premises, can hardly be believed.
15. I am unable to appreciate this contention as well inasmuch as M/s Arvind & Co. may be having their business at Shop No. M/249 where two brothers, that is, Gopal and Shishpal claim general tenancy, who are otherwise brothers. Similarly, Exhibit P2 also does not support the case of the petitioner.
16. Learned Courts below have come to a concurrent finding of fact that the landlord-petitioner has failed to establish the ground of sub-letting. In fact, Exhibit P1 is the document which was obtained by the landlord himself for the purpose of getting deduction in the assessment of property tax payable to the municipality. The finding recorded by the Courts below that the ingredients of sub-letting have not been established, does not call for any interference inasmuch as jurisdiction of this Court in exercise of its re-visional powers is very limited. It should either be a case of no evidence or a case where the finding recorded suffers from palpable error apparent on the face of record. The present case does not fall in either of these categories.
Consequently, this civil revision is dismissed leaving the parties to bear their own costs.