Punjab-Haryana High Court
Kharar Saw Mill Industry And Furniture ... vs Smt. Prem Kaur And Ors. on 7 August, 1995
Equivalent citations: (1995)111PLR345
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. Tenant-petitioners have filed this revision against concurrent findings of the lower Courts, whereby respondents' petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (in short, the Act) is allowed and ejectment order is passed against the petitioner.
2. Petitioner's contention is that Bachan Singh, Razara Singh and Mohinder. Singh respondents are real brothers of petitioner Bhajan Singh. Bachan Singh being the eldest brother is the Karta of their joint Hindu family. They were all running their joint Hindu family business in the demised premises. Kharar Saw Mill Industry and Furniture Production Industrial Cooperative Society Limited, Kharar (hereafter in short, the Society) was shown as a tenant only with a view to obtain loan from the concerned authorities.
3. The landlord, since deceased through LR respondent No. 1 and respondent No. 2 filed an ejectment petition against respondents No. 3, 4 and 5 and the petitioners alleging that land carrying Khasra No. 657 (O-12) within municipal limits of Kharar along with a room constructed thereon was leased out to petitioner No. 1 through respondent No. 3 Bachan Singh for 11 months at a rental of Rs. 200/- per annum for running Saw Mill. Rent note was executed on November 10, 1966. Later on petitioner No. 1 and respondent No. 3 agreed to pay rent at the rate of Rs. 375/-per annum and then the tenancy became six monthly. It was also agreed that in case of default in payment of arrears of rent, the landlord shall be entitled to evict the tenants. The landlord contended that the tenant has not paid rent from December 31, 1982, till date of filing of the rent application on August 31, 1984. It was also alleged that the landlord came to know that the Society is dissolved only a couple of weeks back. Rent was being regularly paid by the Society through Bachan Singh till December 31, 1982. After the dissolution of the Society, tenancy with the Society came to an end. Thereafter Bhajan Singh, Hazara Singh and Mohinder Singh have no right to continue in possession of the disputed premises. The Society through Bachan Singh sublet the premises to Bhajan Singh, Hazara Singh and Mohinder Singh. Bachan Singh has shifted to Chandigarh about two years back, were he has set up his own separate Mill. The disputed premises are in exclusive possession of Bhajan Singh, Hazara Singh and Mohinder Singh. In 1966 there was only one room on the disputed land. Thereafter these sub-tenants have constructed five big rooms on the disputed land. Bhajan Singh and Hazara Singh are running one Saw Mill and Mohinder Singh is running a separate Saw Mill on the disputed land. They have also stored fuel wood for sale in the disputed premises and thereby have changed its user. Thus, on the grounds of non-payment of rent, subletting and construction of rooms, which are likely to impair materially the value or utility of the land, eviction was sought.
4. In the reply the respondents (in the rent petition) stated that the demised premises were taken on rent by respondents 2 to 5 from Santa Singh, the deceased-landlord, in the year 1954 in the name of respondent Bachan Singh as Karta of the joint Hindu family and respondents 3 to 5 are his younger brothers and all the said respondents constituted a joint Hindu family and thus have been running the joint Hindu family business. The Society never came into existence. It was only a paper transaction with a motive to secure loan from the Cooperative Department. On June 1, 1979, respondent No. 2 agreed to pay rent at the rate of Rs. 375/- per annum in two instalments. A compromise was effected between the landlord and the tenant in the Court on June 7, 1969. The tenancy never expired and thus these respondents petitioner have a right to remain in possession of the demised premises as tenants. The grounds of subletting and material impairment were also denied. It is alleged that the said construction was made with the consent and knowledge of Santa Singh deceased. They incurred Rs. 25,000/- on the construction, which Santa Singh agreed to pay.
5. Issues were framed. On the first date of hearing Bhajan Singh tendered Rs. 750/- as rent from December 31, 1982, to December 31, 1984; Rs. 50/- as interest and Rs. 20/- as costs, which were accepted by the landlord's counsel under protest. Thereafter the parties adduced their evidence. The Rent Controller came to the conclusion that the demised premises were leased out to the Society through Bachan Singh for eleven months initially at the rate of Rs. 200/- per annum for running a Saw Mill and at that time a rent note was executed by them. It was also held that after the expiry of that tenancy, the respondents are liable to be ejected. The tender of rent was not held valid as it was not made by any tenant but was made by a third party. The grounds of subletting and material impairment were also held proved and thus the ejectment petition was allowed. The Society and Bhajan Singh preferred an appeal against that order of the Rent Controller, which was also dismissed on September 26, 1994, confirming all the findings of the Rent Controller.
6. Petitioners' learned counsel contended that during the pendency of the rent petition a fresh contract of tenancy was entered into by the parties on June 7, 1969, by executing an agreement, which is on record. Thus, the terms of original tenancy were altered. The tenancy became six monthly and the premises were taken on rent by Bachan Singh for running a joint Hindu family business along with his brothers Bhajan Singh, Hazara Singh and Mohinder Singh. The Society was never the tenant. Rent was always being paid by Bachan Singh. Hence, on the first date of hearing tender of rent made by Bhajan Singh was a valid tender. The Courts below have fallen into an error in holding that it was not a valid tender and since the tenant was in arrears of rent, the tenant was liable to be ejected.
7. His second contention is that subletting is not proved because the demised premises were taken on rent by all these brothers through their Karta Bachan Singh. It is further contended that there is no evidence on record to prove that this subletting was for some consideration and further that the original tenant parted with the possession of the demised premises in favour of the sub-tenants. Hence, petitioner's learned counsel contended that even this ground of subletting is not proved. To substantiate his argument he has relied on a plethora of case law.
8. Both the Courts below have held and rightly so that the tenancy was in the name of the Society. Bachan Singh signed the rent note on behalf of the Society as its office-bearer. The premises were never demised to any joint Hindu family to run its business and Bachan Singh never entered into the contract of tenancy as Karta of the joint Hindu family. It is also proved on record that till December 31, 1992, rent was being regularly paid by the Society which is recorded in the account books of the Society. Therefore, Bhajan Singh was not a tenant and hence both the Courts below have rightly held that the tender of rent made by him was not valid and thus on this ground of non-payment of rent the ejectment order was rightly passed.
9. So far as the ground of subletting is concerned, I have already held above that both the Courts below have rightly held that the premises were leased out to the Society and the rent note was executed by Bachan Singh as its office-bearer. The compromise dated June 7, 1969, is nothing but a document whereby Bachan Singh has bound himself to pay the rent regularly on behalf of the Society and on his own behalf. Therefore, even on the basis of this compromise, it cannot be said that he got these premises on rent as Karta of the joint Hindu family for himself as well as for his younger brothers. It is proved that Bachan Singh has now shifted to Chandigarh and is running his business there. It is also proved on record that in the demised premises one Saw Mill is being run by Bhajan Singh and Hazara Singh and another by Mohinder Singh. In between these two Saw Mills there is a wall. It is also an admitted fact that the Society has gone into liquidation. The Official Liquidator is also appointed, who was made a party at the stage when the case was remanded by this Court to the Rent Controller. Thus, it is apparent that the original tenant i.e. Society is no more in possession of the demised premises. The other two Saw Mills which are being run i.e. one by Mohinder Singh and the other by Bhajan Singh and Hazara Singh, are independent units. Hence, under these circumstances, subletting is duly proved by the landlord. This fact is always in the knowledge of the sub-tenants as tot in what capacity they are in possession of the demised premises. The burden lies on f them. The landlord can only prove that in place of the original tenant somebody else | is occupying the premises independently. Respondents petitioners plea that the premises were leased out to a joint Hindu family with Bachan Singh as a Karta and these brothers as members of the joint Hindu family for running their business on the said premises, was rightly negatived by both the Courts below. Hence, the inference is inevitable that the premises are sublet to Bhajan Singh, Hazara Singh and Mohinder Singh. In my considered view, the Courts below have not fallen into any error in deciding this issue in favour of the landlord.
10. Relying on various authorities, petitioners' learned counsel lastly contended that in the rent petition it was not pleaded that by constructing five rooms on the rented land the tenants have committed such acts as are likely to impair materially the value or utility of the rented land. Hence, no issue was framed on this point. He admits that in the absence of issue, if the parties are alive to the plea raised and have adduced evidence thereon, knowing fully well the facts, then simply non-framing of the issue cannot be made a ground to get the order set aside. He further contends that admittedly the demised premises were leased out for running a Saw Mill. Without making construction thereon, running of Saw Mill was not feasible. Only open land was rented out. If constructed room are demolished, the land will come back in its original position. Hence, there is no ground to hold that by constructing these rooms, they have not done any act which is not likely to impair materially the value or utility of the rented land.
11. No doubt, these words are not pleaded by the landlord that by constructing these rooms these persons have done acts which are likely to impair materially the value or utility of the demised land, but nevertheless the fact remains that when the premises were leased out, there was only one room constructed thereon. Now they have constructed five big rooms thereon. Even in the absence of pleading to that effect that this construction is likely to impair materially the value or utility of the rented land, it can safely be concluded that this construction is likely to impair materially the value or utility of the rented land. Hence, on this ground also the Courts below have rightly held so.
12. Respondents' learned counsel, relying on Shiv Lal v. Sat Parkash and Anr., 1993 H.R.R. 267 contended that under Section 15(5) of the Act, the High Court, while exercising revisional jurisdiction, cannot act as a regular third appellate Court. Petitioners' learned counsel contended that under Section 15(5) the High Court is empowered to call and examine the record relating to any order passed or proceedings taken under this Act for the purposes 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.
13. No doubt, it is true that the High Court cannot act as a third appellate authority, but nevertheless under section 15(5) the High Court is empowered to consider the legality or propriety of the orders passed by the Courts below. The High Court cannot reappraise the evidence to arrive at a different conclusion, but all the same the legality or propriety of the findings can be looked into by the High Court.
14. In my considered view, both the Courts below have rightly held all the grounds of ejectment proved in landlord's favour. Hence, no interference is called for. Revision, being meritless, is hereby dismissed with costs. Accepting the alternative prayer, three months' time from today is granted to the petitioners to vacate the demised premises.