Punjab-Haryana High Court
Hari Om Mehta And Another vs Sanatan Dharam Sati Gita Mandir ... on 7 October, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
C.R.No.1117 of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.1117 of 2002
Date of decision: October 07, 2013
Hari Om Mehta and another
Petitioners
Versus
Sanatan Dharam Sati Gita Mandir Committee
Respondent
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL
Present: Mr. Arvind Singh, Advocate for the petitioners.
Mr. O.P. Gupta, Advocate for the respondent.
Ajay Kumar Mittal,J.
1. This revision petition has been filed against the order dated 22.11.2001 passed by the lower appellate Court whereby the appeal filed by the petitioners against the order dated 10.2.1999 passed by the trial court has been dismissed.
2. A few facts relevant for the decision of the controversy involved, as narrated in the petition, may be noticed. The respondent society being the owner of the shop bearing No.11 situated within the municipal limits of Karnal filed eviction petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in short, "the Act") for ejectment of the petitioners on the ground that the said shop was let out to Petitioner No.1 on a monthly rent of Singh Gurbax `200/- for running a business of Kiryana shop who let out the same to 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 2 Petitioner No.2 and delivered the possession without the consent of the respondent-landlord. It was further alleged that petitioner No.2 was also using the adjoining shop No.10 as a godown for storing the merchandise. Petitioner No.1 sublet the shop to petitioner No.2. It was also alleged that the petitioners were in arrears of rent. The petition was contested by the petitioners by filing reply. It was, inter alia, pleaded that the shop in dispute was let out to M/s Mehta Kiryana store in the year 1983 by the Manager of the Mandir. Previously, no receipt was being issued but later on in the year 1987, the respondent started issuing the rent receipts. The receipt was issued in the name of Petitioner No.1 being the real brother-in-law of Petitioner No.2. Both the petitioners were running the shop as partners of M/s Mehta Kiryana store and were also sharing the profits equally. The petitioners also tendered the rent due in the court and, therefore, the question of sub letting did not arise. The learned Rent Controller after considering the evidence on record and hearing the parties allowed the petition vide order dated 10.2.1999. The appeal filed by the petitioners against the order dated 10.2.1999 was dismissed by the lower appellate court vide order dated 22.11.2001. Hence the present petition by the petitioners.
3. Learned counsel for the petitioners submitted that both the courts below relied upon the report of Local Commissioner and there is no other evidence to prove that petitioner No.1 had parted away possession and business to petitioner No.2. Relying upon the statement of PW2 Ramesh Chand Sachdeva who admitted that it was Singh Gurbax 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 3 Petitioner No.1 - Hari Om Mehta who was doing the business, it was argued that the findings recorded by the trial court and affirmed by the appellate court were erroneous regarding subletting by the tenant petitioner No.1 in favour of petitioner No.2.
4. Controverting the submissions made by learned counsel for the petitioners, learned counsel for the respondent submitted that Hari Om Mehta Petitioner No.1 tenant had not stepped into the witness box before the Rent Controller and, thus, adverse inference was to be drawn against him. No document showing alleged partnership had been produced. In such circumstances, petitioner No.2 was a sub tenant as the property was let out to petitioner No.1. It was also argued that Subhash Malhotra had appeared as RW1 who had admitted that the Local Commissioner had visited his premises and found him to be present there. It was for him to have explained how he was in possession. Further, the findings recorded by the Rent Controller and affirmed by the appellate court regarding sub letting were relied upon by learned counsel for the respondent.
5. I have heard learned counsel for the parties and perused the record.
6. The landlord has sought eviction on the ground of subletting and non-payment. The tenant having paid the rent within time, the only issue that survives for consideration in this revision petition is whether the tenant-petitioner - Hari Om Mehta had sublet the demised premises to Shri Subhash Malhotra.
7. Under Section 13(2) (ii) (a) of the Act, a landlord is Singh Gurbax 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 4 entitled to seek possession from the tenant where the tenant has transferred his right under the lease or sublet the entire building or rented land or any portion thereof etc. without written consent of the landlord. According to the aforesaid provision, in order to establish subletting, the landlord has to prove that:-
"(i) Sub-tenant is in exclusive possession of the whole or part of the tenanted premises.
(ii)That the tenant has parted with the legal possession of the premises.
(iii)Such parting with possession is for some consideration.
(iv)It has been done without the written consent of the landlord."
8. In order to establish subletting by the landlord, the initial onus is upon the landlord to establish that the premises were let out to a tenant who has delivered exclusive possession to the tenant without his written consent. Once that is proved, it would be presumed that the subletting is for consideration. However, the tenant would be entitled to rebut the material produced by the landlord.
9. It would be apposite to refer to the defence taken by the petitioner-tenant in the written statement before the Rent Controller. The case as set up by him was that the Shop No.11 which is in question was let out to the firm M/s Mehta Kiryana Store in the year 1983. Both the petitioners are carrying on business in partnership where they are sharing the profits and losses of the firm and, therefore, no question of subletting arises in this case. Singh Gurbax 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 5
10. The landlord-society had claimed that the demised shop was let out to Hari Om Mehta as an individual. In order to prove it, PW1 Sahib Ditta Mal and PW2 Ramesh Chand Sachdeva had been examined by the landlord who had specifically deposed that the demised shop was let out in favour of Hari Om Mehta who had sub let the same to Subhash Malhotra. It was not disputed by Subhash Malhotra (RW1) that the petitioner landlord society had been issuing rent receipts in the name of Hari Om Mehta and not in the name of the firm. The tenant had claimed that the partnership - M/s Mehta Kiryana Store was the tenant. The party who alleges a fact, the onus is upon it to establish the said fact. The tenant had not produced any statement of income tax, sales tax, profits and loss account, books of account or partnership deed to substantiate the stand. Even, Hari Om Mehta, the tenant in whose favour tenancy was created had failed to appear as a witness in the witness box. The Local Commissioner, Balwan Singh, Advocate (PW4) had corroborated the version of the landlord - society. No doubt, the report of the Local Commissioner by itself may not be sufficient to hold subletting but his report coupled with corroborative material has evidentiary value. Issue No.2 framed by the Rent Controller related to relationship of landlord and tenant between the society and Hari Om Mehta. The plea of partnership M/s Mehta Kiryana Store being tenant of the landlord- society was negated by the Rent Controller in the following terms:-
"Issue No.2.
9. It is the case of the petitioner that the shop in question Singh Gurbax was given to the respondent No.1 on rent for running 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 6 business of 'Kiryana'. On the other hand respondents have stated that infact the shop in question was let out to the firm M/s Mehta Kiryana Store in the year 1983, of which both respondents are partners. All the witnesses of petitioner have deposed that earlier the shop in question was run by respondent No.1 but from the last three years, he has delivered the possession to respondent No.2 who is now running his business. The respondent No.2 while appearing as his own witness as RW1 has also admitted that since December 1983, petitioner has been issuing receipts of rent in the name of respondent No.1, instead of in the name of firm. The tenancy of respondent No.l is also not denied by any of the witnesses of respondents. Thus there is no dispute regarding the tenancy in favour of respondent No.1 but question is whether the tenancy is only in favour of respondent No.1 or the same is in favour of firm 'Mehta Kiryana Store' to which both respondents are stated to be partners. Respondent No.2 while stepping into the witness box as RW1 has testified that earlier he was residing at Dhariwal in Punjab where he used to run the business of Kiryana, but due to militancy, he left the Punjab and started business with respondent No.1, who is his brother in law. He is partner in the above named firm and is managing the affairs of business run in the shop in question. His version has been supported by remaining RWs but no documentary evidence has been adduced.
10.Learned counsel for the petitioner has argued that respondents have failed to establish their stand of partnership because no partnership deed or any account book has been produced. Thus it cannot be said that the respondent No.2 is running the business Singh Gurbax in shop in question at the instance of respondent No.1 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 7 or being partner. In reply to the contentions learned counsel for the respondents has argued that though the petitioner society has been issuing receipts of rent in the name of respondent No.1 but in actual the shop in question was given to the firm 'Mehta Kiryana Store'. Hence there is no relationship of petitioner and respondent No.1 being landlord tenant.
11.However, I find no substance in the arguments of learned counsel for the respondents. There are sufficient evidence that earlier the shop in question was being run by respondent No.1 who was paying rent thereof regularly. The receipts of rent issued by petitioner in favour of him, are admitted by respondent No.2 while appearing as RW1. Even these facts have been admitted by the witnesses of respondents. Respondents have failed to prove the factum of partnership firm. No document relating to income tax, sale tax, loss and profits in business, account books and any partnership deed have been placed. Therefore, it cannot be said that the tenancy was created in favour of M/s Mehta Kiryana Store. When it is proved that earlier respondent No.1 was running business of Kiryana in the shop in question and receipts of rent are in his favour, there leaves no doubt, that only respondent No.1 was the tenant under petitioner.
12.Resultantly, relationship of landlord tenant between petitioner and respondent No.1 stands proved. Hence this issue is decided in favour of the petitioner and against the respondents."
11. In view of the findings recorded under Issue No.2, the Rent Controller while adjudicating Issue No.3 as to whether the premises had been sublet by Shri Hari Om Mehta to his brother-in- Singh Gurbax 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 8 law Shri Subhash Malhotra and who were liable for eviction on the ground of subletting, had decided issue No.3 in favour of the landlord-society as under:-
"Issue No.3.
13. As already discussed under Issue No.2, respondents have failed to establish the factum that shop in question was let out in favour of firm M/s Mehta Kiryana Store. It has been proved that in actual the shop in question was given to respondent No.1 on a monthly rent of ` 200/-. It is also admitted that at present respondent No.2 is running business of Kiryana on the shop in question. Even otherwise the running of the shop by respondent No.2 has been proved by the report Ex.P.9 of LC, which reveals on the lays of site inspection, respondent No.2 was selling 'goods' to customers. On enquiry by LC, he could not tell anything about respondent No.1. Learned counsel for the petitioner has argued that when respondents have failed to prove the factum of genuine partnership and it is admitted fact that respondent No.2 is running the business in the shop in question, it leaves no doubt that the shop in question, has been sublet by respondent No.1 in favour of respondent No.2. In this regard reference can be made to Smt.Darshna Devi vs. Des Raj 1997 HRR (Pb. & Hr) wherein it was held that:
'East Punjab Urban Rent Restriction Act, 1949 Section 13(2) (ii) (a) Sub letting Partnership tenant taking the defence of partnership no evidence was produced to show the contribution of partner to the capital of partnership business nor an account pertaining to income tax was produced. Partnership is Singh Gurbax only a make believe agreement which was never acted 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 9 upon by the partners - Case of sub letting established.'
14. I find no force in the arguments of learned counsel for the respondents who has contended that even if the factum of partnership is not proved yet petitioner has failed to prove that respondent No.1 has ever parted with exclusive possession of the shop in question, so mere putting the respondent No.2 in possession of the premises in dispute by the tenant being relative, does not mean that sub tenancy has been created in this regard he has placed reliance upon Victor Kumar v.
Shakuntla Devi and others, 1995(1) CCC (Pb.&Hr) page 567 wherein it has been held that: 'Rent and Eviction Sub Tenancy - One 'N' called to join business after the death of his brother 'S' to carry on the business on behalf of his minor nephew was put in possession of the premises in dispute exclusive. Does not mean that sub tenancy has been created (East Punjab Urban Rent Restriction Act, 1949, 13') However, this authority is also not helpful to the respondent because facts and circumstances of that case were totally different from the facts of the present case. In that case after the death of tenant, his brother was called to carry on the business on behalf of his minor nephew so it was held that sub tenancy was not created. But in the present case there is no such evidence that respondent No.1 is being carrying on the business in the shop in question at the instance or at behest of respondent No.1. On the other hand ratio of law laid down in authority Smt.Darshana Dev v. Des Raj cited by learned counsel for the petitioner is fully applicable in the facts and circumstances of the present case because when the partnership is not proved then presumption of sub letting can be drawn. Singh Gurbax
15. Resultantly, the sub letting of shop in question by 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 10 respondent No.1 in favour of respondent No.2 stands proved. Therefore, they are liable to be evicted from the shop in question. Thus, the issue is decided in favour of the petitioner."
12. The appellate authority had endorsed the aforesaid findings with the following observations:-
"18. The learned counsel for the appellants urged that the appellants are in near relation to each other and they are running the business of Kariyana shop jointly. Nowhere it is the case of the respondent that Hari Om Mehta has parted away the possession in favour of Subhash Malhotra. But the tenancy of appellant No.1 Hari Om Mehta has not been denied by any of his own witnesses. RW1 Subhash Malhotra himself has admitted in the cross examination that earlier he was residing at Dhariwal in Punjab where he used to run the business of Kiryana but due to militancy he has left the State of Punjab and has started the business with his brother in law. However, he has submitted that he is the partner in the business of Kiryana, but in support of these allegations no documentary evidence has been led. No partnership deed or any account book, sales tax number, income tax account etc. has been produced to show that Subhash Malhotra is running the business as a partner of the firm. PW1 Sahib Ditta Mal has categorically stated that the demised shop was let out in favour of Hari Om Mehta who has subletted the same to Subhash Malhotra. This is sufficient evidence that earlier the shop in question was being run by Hari Om Mehta who was paying the rent. The appellants have failed to prove the factum that the shop in question was ever rented out to M/s Mehta Kiryana Store rather the same has been rented to Singh Gurbax respondent No.1 Hari Om Mehta. In the instant case, the 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 11 learned court appointed the local commissioner to inspect the premises and to report about the existing condition at the spot. The local commissioner in the report Ex.P9 has categorically stated that Subhash Malhotra was present in the shop who was selling the Kiryana goods to various customers. On his enquiry he could not tell anything about Hari Om Mehta. The shop was found in exclusive possession of Subhash Malhotra. He also got the demised shop photographs in his presence. But the report of the local commissioner stands duly proved on the strength of the testimony of PW1 Balwan Singh, Advocate. Even no objections were filed against the report of local commissioner. The said Subhash Malhotra is alleged to have taken the adjoining shop which is being used as go down of kiryana goods. The learned counsel for the respondent argued that the subletting of the shop is a secret arrangement in between the tenant and landlord and it is not possible for landlord to prove sub tenancy by any direct evidence. In the instant case, the statement of the respondent stands fully corroborated by the report of the local commissioner and the appellants have failed to prove any documentary evidence with regard to their partnership in the business.
11. The learned counsel for the respondent argued that the tenant Hari Om Mehta has not appeared into the witness box to deny the charges levelled against him that he has sub-letted the premises in favour of Subhash Malhotra. The court can draw an inference against such person as he himself has failed to assert in the witness box that he is in occupation of the demised premises as a partner of the firm. As a matter of fact,he is proved to have parted away the possession of the demised premises in favour of the subtenant. The Hon'ble Punjab and Singh Gurbax Haryana High Court has held in 2000 HRR Vol.18 page 1 2013.11.29 15:01 14:58 I attest to the accuracy and integrity of this document High Court Chandigarh C.R.No.1117 of 2002 12 Punjab and Haryana High Court Smt.Raj Rani v. Kaushalaya Devi and others that the subletting can be proved only by circumstantial evidence. If the landlord proves that tenant has parted with exclusive possession of the demised premises in favour of sub tenant and has no control of the property in question inference can be drawn that a sub tenancy has been created even if amount of consideration money is not proved. In the instant case, the sub tenant Subhash Malhotra is having the exclusive control of the business in the demised shop as well as in the adjoining shop. A case of sub letting is well established entitling landlord respondent to seek eviction in this ground. The learned lower court has rightly discussed the evidence and the law. The findings given under all the issues are correct and the same stand affirmed."
13. The concurrent findings of both the authorities below were not shown to be erroneous or perverse in any manner.
14. In view of the above, I do not find any merit in the submissions made by learned counsel for the petitioners. Accordingly, finding no merit in the revision petition, the same is hereby dismissed.
October 07, 2013 (Ajay Kumar Mittal)
'gs' Judge
Singh Gurbax
2013.11.29 15:01
14:58
I attest to the accuracy and
integrity of this document
High Court Chandigarh