Punjab-Haryana High Court
Jagan Nath vs Vasdev on 6 November, 1992
Equivalent citations: (1993)103PLR371
Author: H.S. Bedi
Bench: H.S. Bedi
ORDER H.S. Bedi, J.
1. The present revision petition has been directed against the order of the Appellate Authority, Chandigarh, dated May 29, 1985 whereby on appeal filed by the landlord-respondent, the ejectment of the tenant-petitoner Jagan Nath has been ordered.
2. The facts relevant to the case are that the petitioner was inducted as a tenant in the suit premises i.e. Booth No. 25, Sector 8-B, Chandigarh way back in the year 1978. It was the case of the respondent that with effect from September 2,1981, the petitioner had ceased to occupy the booth in question for a continuous period of four months; and that shortly prior to the filing of the eviction application on September 15, 1982, he had also received information that the petitioner had sublet the demised premises to one Smt. Bimla Rani. It is these two grounds that the eviction of the petitioner was sought.
3. The Rent Controller came to the conclusion that the premises in dispute had not remained closed for a period of four months as alleged by the respondent and there was no question of subletting either and such the petitioner was not liable to eviction. In the appeal filed by the respondent, the Appellate Authority concurred with the finding of the Rent Controller on the first point but on "he second, he held that the petitioner had sublet the demised premises to his mother Smt. Bimla Rani and was, therefore liable to suffer.
4. The learned counsel for the petitioner has urged on the bask of a judgment of the Supreme Court reported as Smt. Krishnawanti v. Hans Raj, 1975 R. C. J. 164 and followed by this Court in Smt. Parkash Wanti v. Rattan Lal Jain, (1976) 78 P. L. R. 13 (S. N.) that there were two ingredients that were required to be cumulatively proved by the landlord in case eviction was sought on the ground of subletting and they were (i) that the tenant had surrendered exclusive possession of the demised premises in favour of the sub-tenant and (ii) that this had been done after receiving valuable consideration. He has also urged that the finding of the Appellate Authority was based on a misreading of the evidence as from the facts put forth even by the landlord himself it was apparent that the business of Deepak Radio which was the exclusive proprietor Ship of Smt Bimla Rani, the alleged subtenant, was being, infact, run by petitioner be has urged that the business being run by her son for the benefit of his mother would not be called a case of sub-letting and for that purpose, he has relied on Krishan Chand and Bhagwan Dass v. Gobind Ram, 1985 H.R.R. 635 and Lajwanti v. Daulat Ram, (1920-2) 98 P L R 426.
5. On behalf of the respondent, it has been urged by Mr Jaswant Jain, learned counsel that the stand of the petitioner in the written statement was that the business was being run by him exclusively with the assistance of employees and it was only at the stage when he produced his evidence to show that Deepak Radio was infact the proprietorship concern of Bimla Rani that the petitioner took a volte face and concocted a new story that he was running the business for the benefit of this mother. He has also urged that the two judgments relied upon by the Appellate Authority i. e. Banta Singh v. Vishwa Nath Dogra, 1981) 83 P. L. R. 763 and Ram Kishan v. Harinder Singh, 1982 (1) Rent C.R. 74. were fully applicable to the facts of the case in hand whereas the one cited by the learned counsel for the petitioner were based on totally different set of facts.
6. After hearing the learned counsel for the parties, I find merit in this petition. At the very outset it is to be noted that the learned counsel for the parties did not raise any argument on the findings relating to the point as to whether the premises in dispute hart remained locked up for a period of four months which was one of the grounds for eviction at the initial stage and the arguments have been addressed exclusively on the question of subletting.
7. It is to be noted that the argument that the two tests are to be cumulatively proved in a case of sub-letting as held in Krishnawati and Smt. Parkash Wanti's cases (Supra) are not ever remotely satisfied in the present case. The petitioner himself who appeared as RW 1 and his mother Bimla Rani as RW-2 have in the course of their evidence, admitted that Deepak Radios was a sole proprietorship concern of Bimla Rani, who is admittedly the mother of the petitioner and it is also stated that said concern had two shops in Sector 17-Chandigarh, where the business of sale, purchase and repair of Radios etc, was being carried on. It has been admitted by the petitioner that the investment in the business was that of Bimla Rani, his mother, and it has been further stated that as she was an old lady he was carrying on the business on her behalf. In the statement of the landlord himself appearing as PW1, he has admitted the petitioner had been working under the name of M/s Deepak Radios and further that he bad come to know about the subletting in favour of Bimla Rani some times in the year 1981. In the course of cross examination, the respondent also admitted that the petitioner had four brothers and all of them were working in the concern under the name and style of Deepak Radios, Mr. Jain, has brought to my pointed notice the evidence of PW-4, Yogeshwar Sharma, a clerk in the Excise and Taxation Office, U.T., Chandigarh, to the effect that Bimla Rani was the proprietor of Deepak Radios as per the record in his office and as she had been recorded as such with effect from April 29, 1978. The argument of Mr Jain, seems to be that Smt. Bimla Rani should be deemed to be in exclusive possession of the demised premises in view of this official record. I am, however, of the view that as a matter of fact, the statement of Yogeshwar Sharma, is not required to be taken into consideration as the petitioner himself admitted that it was Smt. Bimla Rani, who was the sole proprietor of Deepak Radios and, infact, the entire investment in the business being run in the demised premises had been made by her, though for his benefit. It is also to be noted that RW-4 Amin Chand, who is a Wireless Licence Inspector Sector 14, Chandigarh, appeared as a wit-ness and stated that dealer's licence for Deepak Radios was in the name of the petitioner and it was he alone who was carrying on the business of sale; purchase and service therein. It may also be seen the it is not unsual that a business started in the name of the parent ultimately, by efflux of time, ends up in the hands of the children and it has come in evidence that Bimla Rani who was a widow bad handed over her entire business to her five sons. To hold in favour of the respondent in the facts of this case, would be to ignore the wear ant tear and change wrought by time. Krishan Chand's case (Supra) cite( by the petitioner's counsel is the one closest to the present one. It has been held therein that there could be no subletting if a tenant in a building carried on business which stood in the name of his son. It will be seen from the evidence that has been discussed above that there is no evidence to show that the petitioner had parted with the possession in favour of any body else and as such the mere fact that the business of Deepak Radios was being run in the demised premise: would not dislodge the case of the petitioner. Banta Singh's case (supra) relied upon by the learned, counsel for the respondent is no applicable to the facts of the present case. In that case, the stand of the tenant was that the joint Hindu Family business was being carried on in the demised premises and on the failure to prove to this fact, a presumption was raised against him. The facts of the case in hand are totally different. The stand of the petitioner-tenant from the very beginning was that he was in exclusive possession of the demised promises and was running the business through his servants and after receiving finances from his mother Smt. Bimla Rani.
8. Even assuming for a moment that there was some evidence to show that Bimla Rani bad come into exclusive possession of the premises in dispute, there is no evidence to show that it was for valuable consideration. It is to be noted that onus to prove a case of subletting lies on the landlord as has been held by this Court in Dev Datt Verma v. Ajit Singh, 1965 Curr. L. J. 341. This onus has not been even remotely discharged.
9. For the reasons recorded above, the present petition is allowed, the judgment of the Appellate Authority is set aside and that of the Rent Controller, restored.