Punjab-Haryana High Court
Smt. Swaran Lata vs Dev Kumar And Ors. on 3 April, 1992
Equivalent citations: (1992)102PLR184
JUDGMENT V.K. Jhanji, J.
1. This revision petition has been directed against the order of the Appellate Authority whereby the appeal of the tenant was allowed and the order of ejectment passed by the Rent Controller on the ground of sub-letting, was set aside.
2. The petitioner filed an ejectment petition against tenant-Dev Kumar (who died during the pendency of the revision and is now being represented by his legal representatives) on the ground of arrears of rent as well as on the ground that the tenant has sub-let the demised premises to respondents No. 2 to 4 namely Banarsi Dass Chaman Lal and Rajinder Arora, without the written consent of the landlady. The ejectment was also sought on the ground that the tenant has impaired the value and utility of the premises by making material alterations.
3. The Rent Controller after appreciating the entire evidence brought on record, found that the tenant has sub-let the demised premises to respondents No, 2 to 4 who have their full control over the. demised premises.
4. On appeal by the tenant; the order of the Rent Controller was set aside, and the ejectment petition of the landlady was dismissed. This order of the Appellate Authority is being challenged in the present revision petition.
5. Mr. M. L. Sarin Sr. Advocate, learned counsel for the petitioner contended that the petitioner has conclusively proved on record that respondents No. 2 to 4 are carrying on the cloth business in the demised premises under the name and style of M/s Ram Saran Rattan Chand. He also made a pointed reference to the report and statement of the Local Commissioner. He further submitted that R. W. 3-Dev Kumar (tenant) has admitted in his statement before the Court that, he is a Commission Agent of M/s Ram Saran Bhola Nath, but no such case was set up by him in his written statement, and therefore, the Appellate Authority was not justified in making out a new case for the tenant which was not pleaded by him.
6. On the other hand, Mr. R. K. Chhibar, Sr. Advocate, learned counsel for the tenant submitted that the tenant entered into an agreement with M/s Ram Saran Bhola Nath and is carrying on the business as Commission Agent of the said firm in the demised premises. He further submitted that the landlady has not appeared in the witness-box to support her case, and the statement given by her attorney cannot be relied upon, and therefore, an adverse inference has to be drawn that the case of the landlady is not truthful.
7. In order to appreciate the arguments of learned counsel for the parties, it is necessary to notice the pleadings of the parties. The landlady in para 2(ii) of her . petition, has categorically stated that respondent No. 1 has sub-let the demised primises to respondents No. 2, 3 and 4 without the written consent of the applicant. He has parted with the possession." In reply to this averment, only Dev Kumar filed written statement. In the said written statement, he denied having sub-let the premises to respondents No. 2 to 4; he rather stated that he continues to be in occupation of the demised premises since the commencement of tenant and has been carrying on the business in the shop. No written statement was filed by respondents No. 2 to 4. Though they were served in the petition, yet they chose cot to appear and thus, were proceeded ex-parte. In his written statement, the tenant has not explained, in any way, as to the nature of the business being carried on in the demised premises, or the particulars of his firm. There is no mention that he is carrying on the business of sole selling agent/commission agent of M/s. Ram Saran Bhola Nath. Before filing of the petition, notice dated 20th December, 1978, Exh. AW-8/1, was served upon the tenant, in which it was clearly stated that he is liable to be ejected as he has sub-let the premises to some other person. The tenant has not given any reason as to why the notice was not replied. According to the counsel for the tenant, there was no necessity to give any reply to the notice as it was vague. However, I find that the notice is not vague as contended by learned counsel for the respondent-tenant because a specific allegation was made in the notice with regard to sub-letting, but for the reasons best known to the tenant, he failed to reply to the notice. A reading of the statement of RW-3-tenant makes the things more clear. In his statement, he stated that before August 1978 he was carrying on the business under the name and style of M/s. Sita Ram and sons. He further stated that M/s. Sita Ram and sons was being assessed to income-tax, but w.e.f. 1977-78, he ceased to be an income! tax assessee. Therefore, from this part of the statement, it is evident that tile tenant stopped his business which he was carrying on under the name and style of M/s Sita Ram and Sons, we.f. the year 1978 This fact coincides with the notice dated 20-12-1978 Exh. AW 8/1 which was served upon him by the landlady whereby the tenant was told that he has sub-let the premises to some other person.
8. The tenant in his pleadings no where stated that in the demised premises, he is carrying on the business of sole selling agent of M/s. Ram Saran Bhola Nath. However, when he appeared as RW-3 he stated that he is the Commission Agent of M/s. Ram Saran Bhola Nath, and is charging a commission at the rate of 1.25 per cent on the total sales effected by M/s. Ram Saran Bhola Nath. He further stated that he had been working as a commission Agent of the said firm since the year 1978. He also disclosed that Banarsi Dass, Chaman Lal and Ram Saran are the partners of M/s. Ram Saran Bhola Nath No documentary evidence was produced by him to prove that he was ever appointed as a commission Agent of M/s. Ram Saran Bhola Nath or he was charging 1 25 per cent commission on the sales effected by the said firm. Though he admitted that a writing took place vide which he was appointed as an Agent of the said firm, yet no such writing was ever produced in the Court. Besides, the tenant never cared to examine any of the partners of M/s. Ram Saran Bhola Nath in order to prove, that he was ever appointed as an Agent, and the terms of his appointment One of the partners namely Banarsi Dass though was summoned by him, yet was not examined; therefore, an adverse inference can be drawn against the tenant for not examining Banarsi Dass, in support of his case. The tenant as well as the firm M/s Ram Saran Bhola Nath have not produced any account-books relating to this Agency or any details of the commission, if any paid to the tenant. The tenant has also not given any explanation as to why he did not carry on the Agency under the name and style of M/s Sita Ram and Sons, particularly when, he was carrying on the business of sale of cloth in the demised shop, under the name and style of M/s Sita Ram and Sons of which he was the sole proprietor. The very fact that he ceased to be an income-tax assessee after the year 1978 leads to only one conclusion that he ceased to carry on the business in the demised premises, and the same was sub-let to respondents No. 2 to 4.
9. During the course of trial before the Rent Controller, a Local Commissioner. Sh. H. S. Boparai, Advocate (A. W. 5), was appointed to visit the premises in order to find out if respondents No. 2 to 4 were carrying on the business in the demised premises He visited the premises on 24-5-1979 and found one of the respondents namely Rajmder Arora and, one Kamal Arora present in the demised shop Without disclosing his ideality, he purchased some cloth and bill, Exh. A. W. 5/1, to that effect was issued by Rajinder Arora On the said bill, the address of the firm was printed as "M/s Ram Saran Rattan Chand, Cloth Merchant Moti Bazar, Amritsar." Mr. Boparai after disclosing his identity, started recording the proceedings and on which, Rajinder Arora. who was present in the demised shop, refused to sign. It was told that only Dev Kumar (tenant) could sign the same. Some-body sent for Dev Kumar, who reached there within 15 minutes Mr. Boparai asked Dev Kumar to put his signatures on the commission proceedings but he agreed to do so after completion of the inspetion Mr. Boparai prepared a rough site plan of the demised shop. On his asking to produce the Bill-book from which bill, Exh. AW-5/1 was issued, he was told that Kamal Arora had taken the said Bill-book as he had gone to collect money from some customer. Kamal Arora came back after some time and produced the Bill-book different from the one from which the Bill, Exh. AW-5/1 was issued The Bill-book produced by Kamal Arora was having the name of M/s Ram Saran Bhola Nath. This Bill-book contained the rubber stamp for showing Dev Kumar as the sole selling agent of M/s Ram Saran Bhola Nath. Mr. Boparai after completion of the inspection, obtained the signatures of Dev Kumar on the report, which he submitted in the Court. No objections were preferred by the tenant to the report of the Local Commissioner. The Local Commissioner also appeared as a witness in order to prove the said report. The statement of Local Commissioner coupled with the statement of R. W. 3-tenant (Dev 'Kumar) makes it abundantly clear that the tenant has sub-let the premises to respondents No. 2 to 4, who are carrying on the business under the name and style of M/s Ram Sarari Rattan Chand. The Appellate Authority while holding that M/s Ram Saran Rattan Chand are carrying on the business only in Moti Bazar and not in the demised premises, took into consideration only the address given on the printed bills. However, this is not enough to conclude that M/s Ram Saran Rattan Chand are carrying on the business only in Moti Bazar and not in the demised premises. The address given on the bill is not material, but what is material is as to whether the said firm is carrying on the business in the demised premises. The report as well as the statement of the Local Commissioner is enough to hold that the said firm is carrying on the business in the demised premises, though in the bills, the address of the firm is shown to be that of Moti Bazar. Thus, from the evidence on record, I am of the considered view that respondents No. 2 to 4 are in exclusive possession of the demised premises, and the tenant has parted with the possession in their favour.
10. Learned counsel for the petitioner placed reliance upon decisions of the Supreme Court in Md. Salim v. Md. Ali, A. I. R. 1987 S. C. 2173 and in Jagdish Parshad v. Smt. Angoori Devi, 1984 (1) R. C. R. S. C. 524, to contend that if a tenant is carrying on the business under an agreement of Agency, there cannot be a sub-letting.
11. The judgments cited by the learned counsel for the petitioner are clearly distinguishable and have no bearing on the facts of the present case. In Md Salim's case (supra), the tenant had proved on record an agreement to carry on the business of an Agency which arrangement was to the knowledge and consent of the landlord and therefore, in those circumstances, it was held that there Was no sub-letting. In Jagdish Parshad's case (supra), it was found that the control over the premises was that of the tenant. However, this is not the position in the instant case. In this case, landlady has been able to establish that the tenant has parted with the possession of the premises and the business in the demised premises being carried on by respondents No. 2 to 4.
12. Mr. R. K. Chhibar, Sr. Advocate, learned counsel for the respondent, cited judgments of this Court in Kewal Chand Jain v. Jiwan Kumar Kaushal, (1989-2) 96 P. L. R. 410 and in Nanak Chand v. Sansar Chand, (1982) 84 P. L. R. 515, to contend that where the ground is of sub-letting and landlord himself does not appear in the witness-box and examines only his attorney, then no order of ejectment can be passed I am afraid to accept this contention. It cannot be laid down as a principle of law that attorney cannot appear on behalf of the petitioner. A person holding General Power of Attorney is not barred from deposing before a Tribunal or a Court It is a different matter whether his statement is to be believed or no;, in the aforesaid cited case, the statement of the attorney was not believed on the facts of those cases.
13. The tenant during the course of arguments of this revision petition, filed an application under Order 41, rule 27 Code of Civil Procedure, and prayed that the tenant be allowed to summon and examine the Partner/Manager of M/s. Ram Saran Bhola Nath, and Hira Lal, Deed-writer, to produce and prove the agreement dated 17th of October, 1978, alleged to have been executed between Dev Kumar and M/s. Ram Saran Bhola Nath, and also the account-books of the said firm for the years 1977-78, 1.978-79, and 1979-80 to prove that commission of Rs. 2500/-, Rs. 10975-25P and Rs. 17713-35P was paid to the tenant during those years In my view, the proposed evidence cannot be allowed to be produced at the revisional stage. The evidence now sought to be produced was well within the knowledge of the tenant and no reasons are forthcoming as to why the said evidence was not produced before the Rent Controller Moreover, it is not the case of the tenant that in the demised premises, he is carrying on the business of M/s. Ram Saran Bhola Nath. The evidence is also at variance with the pleadings of the tenant and for this reason, cannot be allowed.
14. Consequently, the revision petition is allowed, order of the Appellate Authority is set aside and that of the trial court is restored, with no order as to costs, However, the tenant is allowed three months' time to vacate the premises provided he pays/deposits the entire arrears of rent within one month from today, including that of three months. He shall also file an undertaking with the Court of the Rent Controller that he shall hand over the vacant possession of the demised premises on the expiry of the aforesaid period.