Punjab-Haryana High Court
Ram Dhan Sharma vs Shri Bishan Sarup Mittal And Anr. on 4 October, 1993
Equivalent citations: (1994)106PLR492
Author: Harjit Singh Bedi
Bench: Harjit Singh Bedi
JUDGMENT Harjit Singh Bedi, J.
1. This is a tenant's revision petition against the concurrent findings recorded by the Rent Controller as well as by the appellate authority allowing the ejectment application filed under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. The brief facts of the case are given hereunder:
The petitioner, Ram Dhan Sharma, was in occupation as a tenant of a demised shop from a period prior to 1947. The said shop was purchased by Sh. Bishan Sarup Mittal, respondent No. l, about four years earlier to the filing of the ejectment application in he year 1975. This application was filed pleading that the petitioner had sublet the premises in dispute to one Narain Datt Sharma after partitioning the shop into two portions; thereby also materially impairing its value and utility and also that the petitioner had changed the user of the premises by starting a business for liquor along with the sub-tenant Narain Datt Sharma. Certain other grounds for ejectment were raised but as they do not survive, no reference need be made to them.
2. In the written statement filed on behalf of the tenant petitioner in addition to certain formal objections taken against the maintainability of the ejectment application, the averments made on the question of sub-letting, change of user and material impairment of the premises were denied. The issues which arose for determination were accordingly framed by the Rent Controller who ordered the ejectment of the tenant on the grounds mentioned in para No. 3(a) (c) and (d) of the ejectment application. The matter was taken in appeal and the findings of the Rent Controller were affirmed and the appeal dismissed.
3. Mr. M.L. Sarin, Sr. Advocate and Mr. Hemant Sarin, learned counsel for the petitioner-tenant, have argued that the findings of the Counts below on the question of subletting, material impairment of the demised premises by the construction of a partition wall and the change of user from Panwari business to liquor vend are the only issues which are now required to be agitated here.
4. Mr. R.S. Mittal, learned counsel for respondent No. l, has however supported the findings of the courts below and has urged that this court would not sitting in revision reappraise the evidence and record findings of fact contrary to the ones recorded by the courts below. For this assertion, he has relied on a decision of the Supreme Court reported as Rukmini Amma Saradamma v. Kallyani Sulochana , 1993 (1) R.L.R. 1 (S.C). I have considered this argument of Mr. Mittal and find that reappraisal of the evidence should not invariably be made but this court can examine the propriety of the orders made, if circumstances warrant, but I am of the opinion that the findings of fact that have been recorded are in fact contrary to the evidence adduced by the parties and could not have been taken on that evidence. I, therefore, proceed to examine this case on merits.
5. The first matter that has been taken up by Mr.Sarin is with regard to the subletting of the demised premises. In this connection, he has pointed out that from the evidence adduced in the case it was clear that it was not a case of subletting in favour of Narain Datt Sharma, but, in fact, was the creation of a partnership between the petitioner, Smt. Roshni Devi and Narain Datt Sharma for the purpose of retail sale of liquor under the L-2 Liquor Licence, as evidenced by Exhibit RW1/1 which is a partnership deed dated 20th June 1975. He has pointed out that this partnership was accepted by the Income-tax Department as would be clear by the orders Exhibits RW1/3 to RW1/8 pertaining to the income Tax assessment of the partnership aforementioned arising out of the statement of accounts Ex.RWl/10,RWl/ll and RW1/12. It has been highlighted that the said accounts had also been accepted by the Assessing Authorities under the Sales Tax Act, a copy of the assessment order being Ex.RWl/14. Mr Mittal, learned counsel for respondent No. l, has, however, urged that the liquor licence had been granted at the time when the partnership had not come into existence and the licence being in the name of Narain Datt Sharma alone it was a case of subletting even if it was for a few days prior to the formal signing of the partnership deed, and the licence was not transferable, the purpose of the partnership being illegal, a creation of a sub-tenancy should be presumed, and accepted by the Court. For this proposition, he has relied on various judgments cited before the courts below. He has, in addition, urged that in the reply filed by the petitioner in the ejectment application, no reference to the creation of a partnership has been taken and, as such, when no plea had been raised, the evidence adduced to that effect should not be looked into.
6. 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 sublet 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, in fact, 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 , 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 lid's 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.
7. Mr. Sarin appears to be right that for the respondent landlord to prove subletting two ingredients were required to be proved i.e. that the tenant had parted with the exclusive possession of the property and that the same was for valuable consideration. For this proposition he has relied on' Dipak Bamrjee v. Lilabati Chakraborty , (1987) 4 S.C. 161 and Girdharbhai v. Saiyet Mohmad Mirasaheb Kadn , A.I.R. 1987 S.C. 1782. I have considered this argument and find merit in it. No evidence has been produced by the landlord to prove the two ingredients to which reference has been made above. Contrarily, the evidence to prove the partnership that has been adduced by the tenant petitioner, referred to above, is so over whelming that a finding of subletting cannot be recorded.
8. Mr. Sarin has next argued that his client has not constructed any partition wall and even if it be proved that he has, no material impairment has in fact been made. He has asserted that the evidence produced by the parties itself is conclusive of this matter. He has drawn my attention to the ejectment application as also to the site plan appended thereto. In the ejectment application the allegation is that the tenant has constructed a partition wall EF shown in the site plan Ex.RWl/13 in red colour. It has been pointed out that as per this allegation, the only wall that has been built is from E to F and in fact the wall from F downward does not exist. This has been countered by Mr. R.S. Mittal learned counsel for the respondent that in the site plan Ex.AW4 which had been filed by Narain Datt Sharma while making an application for the grant of licence in Form L-2, the existence of the wall downward to point F is also shown. Mr. Sarin has, however, placed greater reliance on the site plan Ex.RW9/l duly supported by the evidence of the expert who prepared the same. The contention of Mr. Sarin is that even assuming that there was a wall from point F downward, yet the unchallenged testimony of Sh. Ganga Ram who prepared the site plan Ex.RW9/l and appeared in the witness box as RW9 was that the wall was only 4 1/2 inch thick and 8 1/4 feet high and was lower than the roof by 4 feet and the construction had been made 15 years earlier. I have gone through the evidence of the said witness and find that the arguments of Mr. Sarin find support therefrom. There was no question asked from the said witness with regard to the report that the wall did not go up to the roof or to the approximate time as to when the wall had been built. It has been held in Om Parkash v. Amar Singh , A.I.R. 1987 SC 617 that there can be no material impairment of a building in case the so-called addition can be easily removed or is of an insignificant nature. In the cited case the facts were almost identical to the ones here. There too a partition wall had been made without digging a foundation nor did it touch the ceiling. The Supreme Court found that it could not be said that any substantial construction had been made so as to cause impairment in the value and utility of the demised premises. It will be seen from the site plan Ex.RW9/l and the evidence of RW9 that the wall was only 4 inch thick and did not touch the roof and, more significantly, it had been built about fifteen years prior to the date on which the site was inspected i.e. 15th September, 1979. It is, therefore, apparent that if the so called partition wall did exist, it was an insignificant construction and was made long before the present landlord became the owner of the property and was already in existence when he purchased it.
9. The last argument of Mr. Sarin is that the tenant had not changed the user from that of Panwa'ri to the sale of liquor. It is the admitted case of the parties that no rent note had been executed between them and, therefore, it must be presumed that the shop, as the very nomenclature suggests; was let out for being used as a shop. Moreover, with the passage of time and paucity of accommodation some wider meaning is required to be given to the use to which a shop can be put. The Supreme Court while dealing with a similar situation in Mohan Lal v. Jai Bhagwan , (1988-1) 93 P.L.R. 670 (S.C.) accepted the concept of departmental stores and held that where a shop had been let out for carrying on the business of sale of liquor was converted to a business of general merchandise, there was no change of user. The broad principle laid down in Mohan Lal's case (supra) must be kept in view and it cannot be said that it would amount to change of user.
10. For the reasons recorded above, the present petition is allowed, the order of the Rent Controller as also of the Appellate Authority are set aside and the ejectment application dismissed, but with no order as to costs.