Punjab-Haryana High Court
Arshad Ali vs Kailash And Ors. on 6 March, 1998
Equivalent citations: (1998)119PLR250
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. Against petitioner Arshad Ali and Saleem in the petition for eviction filed by the respondents, an order of eviction had been passed Under Section 13(2)(ii) of the East Punjab Urban Rent Restriction Act by the learned Rent Controller, Chandigarh, on 2.2.1994 on the ground that the property in question has been sub-let by Arshad petitioner to Saleem. The appeal preferred by the petitioner with the Appellate Authority, Chandigarh, was dismissed on 11.10.1995. Hence, the present revision petition.
2. Some of the relevant facts necessary for the disposal of the present petition for eviction can conveniently be relisted. The respondents alleging themselves as landlord of the shop in question had claimed eviction of the petitioners on the ground of non-payment of rent, change of user of the property which was stated to have been sublet without the consent of the respondents and that the petitioners have caused damage to the properly in question and impaired its value and utility. These grounds of eviction do not survive nor there was any controversy raised in this Court with respect to the findings of the learned Rent Controller and the Appellate Authority which were against the respondents. The sole surviving ground of eviction which is the subject matter of controversy is that the respondent's case was that the property had been let to petitioner Arshad Ali who sublet it to Saleem for valuable consideration after the commencement of the East Punjab Urban Rent Restriction Act, 1949, as applicable to Union Territory of Chandigarh(for short 'the Act').
3. The petition for eviction has been contested. In their joint written statement filed by both the petitioner and respondent No. 4 the said ground of eviction has been controverted, It was denied that the property has been sub-let or assigned to Saleem. The precise defence of the petitioner has been mentioned in paragraphs 3 and 4 of the written statement which reads as under:
That the contents of para 3 of the petition are wrong and hence denied. It is wrong that Arshad Ali has sub-let and portion to Saleem, respondent No. 2. The story set up is a lie of sheer concoction. In fact, Arshad Ali and Saleem are the real brothers: Saleem is the elder brother. Saleem has taken on rent the shop S.C.F. No. 43, Sector 22-C, Chandigarh, where the business under the name and style Saleem Hair Dressers and Beautician Saloon is being managed. In fact, even prior to Ist June, 1976, Mr. Saleem is carrying on the business of Hair Dressing in this very premises also. The respondent No. 1 and 2 are real brothers and the respondent No. 2 being the elder brother is managing the whole affairs. Right from 1976, the business of hair cutting is being carried out in the demised premises as Saleem Saloon Hair Cutting and Beautician Saloon. The story as set up is a tissue of lie and sheer concoction. No portion has ever been sub-let and, in fact, the question of sub-letting does not arise.
That the contents of para 4 of the petition are wrong and hence denied, it is wrong that premises were let out for some industrial purpose. As narrated supra, right from June, 1976, the premises are being used for Hair Dressers Saloon and right from that date the business is being run under the name and style "Saleem Hair Dressers". It is wrong that carrying on business of hair-cutting, making available artificial jewellery and pan, cigarette etc. amounts to change of user of the demised premises. In fact, right from the year 1976, these business are being carried on in these premises. It is important to slate here that Sakeel is also one of the brothers of the respondents and they afforded every available opportunity to make him settle in the life as he was little bit financially week. It is also wrong that any portion has been sub-let by respondent No. 1 to respondent No. 2.
4. Issues were framed by the learned Rent Controller and parties had led their respective evidence. The learned Rent Controller with respect to the surviving ground of eviction held that it was petitioner Arshad to whom the properly had been let. The rent note was being considered for collateral purpose, because it was not a registered document. It was further concluded that the business of M/s. Saleem Hair Dresser under the name of Arshad Ali is being run in the suit property. The learned Rent Controller recorded that Saleem has claimed that he has taken the property on rent and thus there was a total contradiction in the evidence and the picas which were being offered. It takes not of the fact that Saleem admits that he supervises the shop and its business and that in the earlier suit which was filed by Shakil against petitioner Arshad Ali, he had claimed that he was working in the property in his own right. Accordingly, holding that the said property had been sub-let the order of eviction was passed.
5. In appeal, the said findings of the learned Rent Controller found favour with the learned Appellate Authority. As mentioned earlier, the appeal was dismissed.
6. On behalf of the respondents, it was vehemently urged that there arc concurrent findings of fact that have been arrived at by the authorities under the Act and, therefore, in exercise of rcvisional jurisdiction Under Section 15 of the Act this Court cannot reappraise the evidence that has been produced. Sub-section (5) to Section 15 of the Act prescribes the power of the High Court to interfere in the orders passed by the authorities under the Act, but it has to see the legality and propriety of such orders. Sub-section (5) to Section 15 of the Act reads as under :-
"(5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety or such order or proceedings and may pass such order in relation thereto as it may deem fit."
7. The said question has been considered by the Supreme Court in the case of Smt. Rajbir Kaur and Anr. v. S. Chokosiri and Co., A.I.R. 1988 Supreme Court, 1845. The Supreme Court held that the revisional jurisdiction cannot be equated with a full-fledged appeal. Ordinarily, in its revisional jurisdiction the High Court will not re-appraise the evidence and dislodge the concurrent findings of the fact. In paragraph 16 of the judgment, the Supreme Court held as under :-
The scope of the revisional jurisdiction depends on the language of the statute conferring the revisional jurisdiction. Revisional jurisdiction is only a part of the appellate jurisdiction and cannot be equaled with that of a full-fledged appeal. Though the revisional power-depending upon the language of the provisions-might be wider than revisional power Under Section 151 (or 115?) of the Code of Civil Procedure, yet a revisional court is not a second or first appeal.
When the findings of fact recorded by the Courts below are supportable on the evidence on record the revisional Court must, indeed, be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted and supported the one reached by the Courts below. With respect to the High Court, we are afraid, the exercise made by it in its revisional jurisdiction incurs the criticism that the concurrent finding of fact of the Courts below could not be dealt and supplanted by a different finding arrived at on an independent reassessment of evidence as was done in this case. We think in the circumstances, we should agree with Sri Sanghi that the concurrent findings as to exclusive possession of M/s. Kwality Ice Cream was not amendable to reversal in revisional. Contentions (a) and (b) in our opinion are well taken and would require to be held in appellants favour.
8. The same question was considered by the Supreme Court in the case of Lachhman Dass v. Sanlokh Singh, (1995-3)111 P.L.R. 276 (S.C.). This was a decision flowing from the Haryana Urban (Control of Rent and Eviction) Act, 1973. The scope of the same is not much different and is, in fact, similarly worded as that of the Punjab Act. It was held once again that ordinarily in exercise of the revisional jurisdiction the evidence shall not be re-appraised. In paragraph 7 of the judgment, the Supreme court concluded as under:-
".....That being so the two jurisdictions-one under an appeal and the other under revision cannot be said to be one and the same but distinct and different in the ambit and scope. Precisely slated an appeal is a continuation of a suit or proceedings wherein the entire proceedings arc again left open for consideration by the appellate authorities which has the power to review the entire evidence subject, of course, to the prescribed statutory limitations. But in the case of revision whatever powers the revisional authority may have it has no power to reassess and re-appreciate the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision. In this view of the matter we are supported by a decision of this Court in State of Kerala v. KM. Charia Abdullah and Co.
9. Similarly, in the case of Dev Kumar (died) through LRs. v. Swarm Lata (Smt.), (1996-2)113 P.L.R. 391 (S.C.), the Supreme Court held as under :-
"......In our considered opinion having regard to the aforementioned decisions of this Court laying down the parameters of the High Court's jurisdiction Under Section 15(5} of the Act it is neither possible to accept the narrow construction put by the learned counsel appearing for the appellant nor the wide construction put by the learned counsel appearing for the respondents. The jurisdiction of the High Court under Sub-Section (5) of Section 15 of the Act, therefore, would entitle the court to examine the legality and propriety of a conclusion of the appellate authority and is thus much wider that the revisional jurisdiction Under Section 115 of the Code of Civil Procedure. But it has to be exercised subject to the well-known limitations inherent in all revisional jurisdictions and cannot be equated with an appellate jurisdiction. That being the position, unless there is a perversity in the matter of appreciation of evidence by the appellate authority or unless the appellate authority has arrived at a conclusion which on the materials, no reasonable man can come to, the High Court will not interfere with the same."
Lastly, in the case of Fatmia Bee (Smt.) v. Mahamood Siddiddi, (1996)9 Supreme Court Cases, 450. The Supreme Court while dealing with the provisions under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, held as under :-
".......these findings were confirmed by the appellate court again after appreciating the evidence. No part of the evidence was misread by the courts below. Therefore, there was no justification for the High Court to reverse the said findings of fact. It was stated by the witnesses examined on behalf of the landlady that their bangle business was carried on from three different shops. It was further stated by them that they intended to carry on the said business from the suit premises. It was not even put to these witnesses that a lesser area would be sufficient for the purpose of carrying on that business. It was, therefore, improper for the High Court to interfere with the findings of facts in this behalf on the ground that the landlady has not shown how much area she requires for carrying on her business."
10. From the above said conclusion, it is obvious that in normal circumstances in exercise of the revisional jurisdiction the High Court will not re-appraise the evidence. However, if there is misreading of evidence or findings are absurd or erroneous, the High Court can certainly look into the material on record and come to a different conclusion. It is true that revisional jurisdiction cannot be equated with the appellate jurisdiction but as noticed above, if the findings so arrived at are contrary of law, the correctness of the same can certainly be looked into. With this | backdrop, one his necessarily to see if the findings of the authorities, namely, the Rent Controller and that of the Appellate Authority are perverse or there is any absurdity in arriving at correct conclusion therein or not. Exhibit P-5 is the rent note that has been produced on the record and there is no controversy raised at either end that it was shown that it was the petitioner Arshad Ali who had taken the shop in dispute on Rent.
11. On behalf, of the respondent-landlord great stress was laid that in the earlier litigation between Mohd. Shakil and Arshad Ahmad (petitioner) it has been specifically alleged that Mohd. Shakil is a tenant in the property in question. This fact was highlighted as to pin point that petitioner Arshad has totally effaced himself from the property in question and has no control or legal possession of the same. Both the courts below, namely, the Rent Controller and the Appellate Authority have also relied on the said fact.
12. The said controversy is because of the Civil suit filed by Mohd. Shakil, brother of petitioner Arshad. Exhibit PX-1 is the copy of the plaint in the suit filed by Mohd. Shakil against the petitioner. He had claimed the relief of permanent injunction against petitioner Arshad to restrain him from interfering in his peaceful possession of the property in dispute. He had asserted that, "the plaintiff is a tenant in front portion of Bay shop No. 46, Sector 15, Chandigarh, in an area measuring 8 feet x 10 feel at the rental of Rs. 700/- per month and he is running the business of Pan, Bidi and Cigarette in the said shop as tenant and is in peaceful possession of the portion of the Bay Shop uptil date and is running his business in the present premises for the last 10 years. Earlier the plaintiff was paying Rs. 500/- per month. The defendant, who is the real brother of the plaintiff, wanted to forcibly dispossess him. Subsequently, Mohd. Shakil brother of petitioner Arshad had made a statement that he does not intend to proceed further with the suit and the same was dismissed as withdrawn. Copy of the judgment of the learned Sub Judge, Chandigarh, is Exhibit PX-5. Similarly, Exhibit PX-5, is the earlier suit filed by Mohd. Shakil in the year 1982 against present petitioner Arshad as well as Saleem. Once again Mohd. Shakil prayed for the relief of permanent injunction to restrain both Arshad and Saleem from interfering in his peaceful possession over the suit premises. Herein also, he has asserted that he is a tenant in a portion measuring 8 feet x 10 feet of the property at a monthly rent of Rs. 500/-per month and cannot be dispossessed except in due course of law. During the pendency of the said suit, he had prayed for an ad interim injunction and the copy of the petition is Exhibit PX-7. Mohd. Shakil had made a statement withdrawing the suit. It was dismissed as withdrawn. These facts referred to above certainly establish that Mohd. Shakil had filed a civil suit against petitioner Arshad and second one against petitioner Arshad and Saleem claiming that he is a tenant in a portion of the properly in dispute. But the question that immediately comes up for consideration is as to whether any such assertion made by Mohd. Shakil is binding on the petitioner or not. Section 18 of the Indian Evidence Act reads as under :-
"18. Admission-by party to proceeding or his agent-statement made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions By suitor in representative character :-
Statement made by parties to suits, suing or sued in a representative character are not admissions, unless they were made while the party making them held that character :
Statements made by:-
(1) By party interested in subject-matter - Persons who have any proprietory or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested; or (2) By person from whom interest derived -- Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.
13. A perusal of Section 15 of the Indian Evidence Act leaves no doubt that this was an admission made by Mohd. Shakil and could be read against him. It could not be read against the petitioner. Otherwise also, there was no trial that had proceeded and nor there was any finding arrived at by the concerned Civil Judge at Chandigarh so as to adjudicate and hold that Mohd. Shakil has sub-let the property in question or a part of it. The Courts below, therefore, were patently in error in relying upon the assertions made in these suits by Mohd. Shakil against the petitioner. In these conclusions, one is supported by the judgment of the Supreme Court in the case of Sri Chand Gupta v. Gulzar Singh and Anr., (1992)1 Supreme Court Cases, 143. The cited case was under the Delhi Rent Control Act, 1958. Section 14(1)(b) of the said Act permits the landlord to seek eviction if the property has been sub-let, assigned or parted with any portion without the consent of the landlord. In other words, the provisions of the Delhi Rent Control Act in this regard are by and large similar to the said ground of eviction with which we are presently concerned. Herein a petition for eviction has been filed for sub-letting to a person who was also the brother of the tenant. The said brother of the tenant had filed an affidavit before the Income-tax authorities claiming himself to be a tenant in exclusive possession of the property. The question before the Supreme Court was as to whether it would tantamount to admission binding the tenant and so as to hold that the said ground of eviction is established. The Supreme Court while referring to Section 18 of the Indian Evidence Act held as under :-
"........Section 18 postulates that statements made by a party to the proceeding, or by an agent to any such party. Whom the court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions. Equally statement made by a person who has any proprietary or pecuniary interest in the subject matter of the proceedings or by persons having derivative interest during the continuance of the interest also are admissions. In this case, admittedly, Gulzar Singh was not a party to the affidavit signed by Avtar Singh. Therefore, the admission made by Avtar Singh that he is the tenant in exclusive possession of the demised premises does not bind Gulzar Singh. In view of the plea and stand of the appellant, Avtar Singh cannot claim to have any pecuniary interest or any joint interest along with Gulzar Singh in the demised premises."
Subsequently, the conclusions were drawn that it would not amount to subletting because of admission made by Avtar Singh. It was held as under:-
"The High Court rightly held that the finding of subletting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence. Having found the finding vitiated, it was open to the High Court to re-examine and re-appreciate the evidence on record."
Keeping in view the same, the assertion made by Mohd. Shakil in the civil suit in which there was no adjudication, indeed, will not bind the petitioner.
14. It has already been noted above that the rent note has been executed by petitioner Arshad with respect to the property in question in the year 1979. Sadhu Ram appeared as PW1 and stated that Arshad Ali petitioner has sub-let the property to Mohd. Shakil about 8-10 years ago. He has further sublet the property to Mohd. Saleem and Mohd. Saleem has been doing the business in the premises in question. Arshad Ali, as per this witness, was doing the business in Sector 22 and he had not granted any permission to sublet the property. He was cross-examined. During cross-examination when asked, he answered that he does not know whether Mohd. Saleem is carrying on the business of hair cutting in part of the premises since June, 1976. However, he had the courage to state that he has been visiting the property for a very long time. He added that Saleem had been carrying for a very long time. He added that Saleem had been carrying on the business w.e.f. 1976. He was not present when the rent note was executed. He further stated that petitioner Arshad Ali is carrying on his business in Sector 22, Chandigarh. He parried the question whether the sign board of the demised premises has been printed as Saleem Hair Dresser w.e.f. 1976. On closure security of this witness, it is clear that though he wanted to avoid admitting the fact that Mohd. Saleem is carrying on the business in the suit premises since the year 1976 but he could not supress the said fact during cross-examination. He had to admit that Mohd. Saleem had been carrying on the business in the year 1976. He could not deny that the sign board of Mohd. Saleem as barber has been in place since 1976 outside the said place, namely, the shop in dispute. Once, that is so and coupled with the fact that he is no other person that the brother of petitioner Arshad. it is obvious that they were carrying on the ¦ business together. The respondent-landlords were aware of that fact. There is no surrender of tenancy rights by Saleem who has been arrayed as a respondent in the present revision petition. He is continuously functioning from the suit property. The same has to be read keeping in view the defence offered by the petitioner. It is in the statement of petitioner Arshad Ali that he is in legal possession of the same. If Saleem has also been working with him then it will not amount to subletting of the suit property. Reference in this connection can well be made to the decision of the Supreme Court in the case of Smt. Krishnawanti v. Hans Raj, 1975 All India Rent Control Journal 164. In the cited case, the petitioner was living as a wife of another person. He had taken the properly on rent. The third person was carrying on business therein. The Supreme Court approved the findings that it did not amount to sub-letting even if the marriage of Smt. Krishnawanti with that person was not established.
15. Even in the case of Dipak Banerjee v. Lilabati Chakraborty, (1987)4 Supreme Court Cases, 167, the Supreme Court while considering the case of sub-letting under the West Bengal Premises Tenancy Act, 1956, held that it the services are rendered by the sub-tenant in lieu of right of occupation of the premises, it is not sufficient to establish sub-letting of the property. In the present case in hand, the third person is the brother of the petitioner. If he has rendered certain services and has worked and has been working for years in the property, necessarily it does not imply that there is sub-letting. It is not uncommon that one brother has let his brother to take the property on rent and they carry on the business together. It is not established that any consideration is being passed by Saleem in favour of the petitioner.
16. Much was tried to be made out of the fact that in the written statement that has been filed plea taken up was that it is Saleem who is managing the affairs and further that even when Saleem appeared as a witness (RW1) he had stated that he had taken a portion on rent from Gurnam Singh. On the basis of the pleadings of the petitioner and Saleem (already reproduced above) and the above said statement it was urged that it shows that Saleem, in fact, is a sub-tenant in the property.
17. I am afraid the said contention cannot be accepted. Statement of Saleem that he took the property on rent, ex facie, has to be rejected because, as stated above, it is the petitioner Arshad Ali to whom the property was let vide rent note Exhibit P-5. Sub-letting would only be taken if having been made after the property was let and Saleem was inducted by any overt act of the tenant. That is not established. As referred to above and re-mentioned at the risk of repetition, Saleem has been carrying on the business in the suit property along with petitioner Arshad Ali since the year 1976. Even PW1 Sadhu Ram admitted that he was working in the property since the year 1976. The rent note had been executed subsequently by the petitioner as a tenant. There was no sub-letting after that date or any such fact which prompted the court to approve that after tenancy was created in favour of petitioner Arshad Ali, the said property was sub-let.
18. We know from the decision of this Court in the case of Jagan Nath v. Vasdev, (1993-1)102 PLR 371, that the onus of establishing sub-letting lies on the landlord. It is also a settled principle that the landlord is a stranger to any agreement between the tenant and a sub-tenant. If the possession of the third person is not explained, inference of sub-letting can be drawn.
19. What is the position herein. The pleadings of Arshad Ali petitioner and Saleem (respondent in the present revision petition) have not been drafted properly. But still in terms of Section 13 of the Act, it is the satisfaction of the Rent Controller which is to be recorded before any order of eviction is to be passed. This satisfaction can be arrived at on the basis of overall evidence and taking stock of all the facts and the circumstances.
20. When Saleem states that he took the property on rent but that, as already referred to above, cannot be believed as his statement is to be read as a whole. One line cannot be read in isolation. The witness explained that he only manages the business but control is that of the petitioner. The sign board of Saleem Hair Saloon is existing since long. Keeping in view the said factor, there is no escape particularly when they arc brothers. Inference of sub-letting would not be permissible. In this regard one is supported by, the decision of this Court in the case of Ram Dhan Sharma v- Bishan Samp Mitlal (1994-1)106 P.L.R. 492. Herein the tenant did not make any specific averment in the written statement that the alleged sub-tenant was his partner. The partnership. However, was established. It was held that a wrong defence so taken will not absolve the landlord from proving his case. In paragraph 6 of the judgment, this Court held as under :-
"I have heard the learned counsel for the parties at length. Taking the last argument of Mr. Mittal to be the first one that as the written statement does not refer to the creation of a partnership evidence to prove the same should not be looked into, is without merit. It is pertinent that in para 3(a) and (d) of the ejectment application, the positive stand of the respondent-landlord is that the petitioner had sub-let and transferred the rights of tenancy and changed the user in a part of the demised premises by starting the business of liquor vending along with Narain Datt Sharma. The averments made in para 3(a) and (d) have been substantially denied in the written statement with regard to the creation of a sub-tenancy but there is no specific denial with regard to the starting of the liquor vending business with N.D. Sharma. It will thus be seen that the creation of a partnership has, infact, been impliedly admitted by the respondent-landlord himself and merely because the petitioner in the written statement did not specifically mention the factum of partnership would not mean that in fact the plea was not raised. Moreover, as held in Dev Dutt Verma v. Ajit Singh and Ors., 1965 C.L.J. 341 that a wrong defence put up by the tenant in a case of subletting does not absolve the landlord from proving his case as the onus lies on him to do so. Even therefore assuming that there were some inaccuracies in the pleas raised by the petitioner in the written statement these questions of subletting would still have to be proved by the landlord himself."
Same is the position herein. The landlord in the peculiar facts of the case has failed to establish that there has been any consideration that passes from Saleem to petitioner Arshad Ali or that Saleem is in exclusive possession to the ouster of the petitioner.
21. Attention of the court was drawn to the decision of the Supreme Court in the ease of Nihal Chand Rameshwar Dass v. Vinod Rastogi, 1995(1) Rent Control Reporter 101, In the cited case, it was held that there was no evidence if tenant was charging rent from the third person in occupation. It was concluded that when ex-elusive possession of third person is establishment, it is permissible to draw inference that the property has been sub-let. It is not so in the present case. The exclusive possession of Saleem is not established and the ratio of the said decision will not come to the rescue of the respondents. The same view prevailed with the learned Single Judge of this Court in the case of Santosh Devi and Ors. v. Vir Chand, (1996-1)112 P.L.R. 459.
In the present case, it is explained that Saleem has only been working for and on behalf of the petitioner Arshad Ali and this has been continuing even before the actual date when tenancy was created in writing. Such inferences in these facts, cannot be drawn. These facts show that findings of the Rent Controller and the Appellate Authority were not based on correct appreciation of law and are erroneous on fact. Therefore, this Court in the present revision petition is interfering in the said findings.
22. For these reasons, the revision petition is allowed. The impugned order is set aside. The eviction petition is dismissed.