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1981 DIGILAW 66 (HP)

DHARAM PAL v. DURGA DASS

1981-11-10

T.R.HANDA, V.P.GUPTA

body1981
JUDGMENT V. P. Gupta, J. The facts in this case are that Durga Dass (respondent) filed an application for eviction of Dharam Pal (petitioner) under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter called the Act of 1971). It is alleged by the respondent that the petitioner has sub-let the premises to one Phambi Ram without the written consent of the respondent and for this reason the petitioner is liable to eviction. The eviction petition was filed on 26th August, 1976, and the notice regarding termination of tenancy was served upon the petitioner on 28/29th July, 1976. It is admitted by the parties that Phambi Ram (alleged sub-tenant) vacated the premises on or about 9th August, 1976. 2. The petitioner contested the eviction petition and alleged that he is in possession from the year 1943 and that Phambi Ram was inducted as a sub-tenant in the year 1944, when there was no limitation or hinderance in sub-letting the premises. The petitioner also alleges that the respondent had knowledge about this sub-letting and it was with the implied consent of the respondent and his predecessors-in-interest. It is further alleged that Phambi Ram (alleged sub-tenant) has vacated the premises before the filing of the eviction petition, therefore, no eviction order can be passed on the ground of sub-letting. 3. On the pleadings of the parties the following issues were framed : "1. Whether the premises in dispute have been sub-let without the consent of the landlord by respondent 2? OPR. 2. Whether the sub-letting was effected previous to the enforcement of the H. P. Rent Control Act and Punjab Rent Restriction Act to the knowledge of the landlord ? OPR. 3. Whether there is no relationship of landlord and tenant between the parties ? OPR. 4. Whether the petition is bad for want of better particulars ? OPR. 5. Relief. 4. The Rent Controller after deciding all the issues in favour of the respondent, ordered the eviction of the petitioner vide order, dated 28th July, 1977. An appeal was filed but the same was also dismissed on 12th July, 1978. In these circumstances the present revision was filed by the petitioner. 5. OPR. 5. Relief. 4. The Rent Controller after deciding all the issues in favour of the respondent, ordered the eviction of the petitioner vide order, dated 28th July, 1977. An appeal was filed but the same was also dismissed on 12th July, 1978. In these circumstances the present revision was filed by the petitioner. 5. This matter came up for hearing before Single Bench (i. e. one of us sitting in Single Bench) where the petitioners counsel contended that sub-letting covered under the provisions of Section 14 (2) (ii)of the Act of 1971 is only that sub-letting which comes into being after the commencement of the Act. He referred me to the various provisions of the Punjab Rent Restriction Act, 1941, Punjab Urban Rent Restriction Act, 1947, and East Punjab Rent Restriction Act, 1949. The respondents counsel, on the other hand, contended that sub-letting which had taken place prior to the Act of 1971, is also covered under Section 14 (2) (ii) of the Act of 1971, because the respondent never gave his written consent to such sub-letting. The matter involved in the case was an important one and, therefore, it was referred for decision to this Division Bench. The order of reference is dated 3rd March, 1980. We have heard the learned counsel for the parties. The learned counsel for the petitioner relied upon Gurcharan Singh and others v. V. K. Kaushal [WR 1980 S. C. 1866] in support of his contention and argued that the matter in dispute is now fully covered by the aforesaid judgment in Gurcharan Singh and others case (supra) decided on 21st August, 1980. The learned counsel for the respondent had to concede in a lukewarm manner that Gurcharan Singh and others case (supra) sets the controversy at rest. He however, contended that in the present case sub-letting was effected after 5th November, 1971, and in support of his contention, he referred to the pleadings of the parties and the statements of the witnesses. 6. We have considered the contentions of the learned counsel for the parties and have also gone through the records of the case. 7. He however, contended that in the present case sub-letting was effected after 5th November, 1971, and in support of his contention, he referred to the pleadings of the parties and the statements of the witnesses. 6. We have considered the contentions of the learned counsel for the parties and have also gone through the records of the case. 7. In Gurcharan Singh and others9 case (supra) it has been held as follows : "In the present case, however, Section 13 (2) (ii) (a) of the Act confines its scope to sub-leases effected after the commencement of the Act, that is to say, transactions of sub-letting effected after the date when the Act came into force. For that reason, a sub-letting effected before the commencement of the Act cannot be brought within the mischief of Section 13 (2) (ii) (a) even though it continues to subsist on or after the commencement of the Act." It may be mentioned that the language of Section 13 (2) (ii) of the East Punjab Urban Rent Restriction Act, 1949, and Section 14 (2) (ii) of the Act of 1971 is the same. Hence, in view of the judgment in Gurcharan Singh and others9 case supra), the petitioner is only liable to eviction if it is proved that sub-tenancy in favour of Phambi Ram, came into existence after the commencement of the Act of 1971. 8. On merits, it is sufficient to mention that both the Rent Controller as well as the Appellate Authority have given concurrent findings that the premises came in possession of Phambi Ram in the year 1943-44. In view of the concurrent findings of fact of the two Tribunals below, there is hardly any scope for interference by this court. The learned counsel for the respondent contended that the findings of both the Tribunals below are improper and are based upon mis-reading of evidence and he referred to the statements of the parties and the pleadings P. W. 1 is the special attorney of the respondent (landlord). He has nowhere stated that the sub-tenancy was created in favour of Phambi Ram after the commencement of the Act of 1971 On the other hand, he has stated that he has no knowledge if Phambi Ram was in occupation of the premises in 1944 with the permission of the previous landlord. He has nowhere stated that the sub-tenancy was created in favour of Phambi Ram after the commencement of the Act of 1971 On the other hand, he has stated that he has no knowledge if Phambi Ram was in occupation of the premises in 1944 with the permission of the previous landlord. He has admitted that the present respondent was not the owner of the premises in 1943. There is no other evidence to prove that the sub-tenancy in favour of Phambi Ram was created after 1971. On the contrary, it is proved from the statements of the petitioners witnesses that sub-tenancy in favour of Phambi Ram was created in the year 1943-44. In the eviction petition also the respondent has nowhere stated that the sub-tenancy was created after the commencement of the Act of 1971. It is only stated that Phambi Ram, Barber, was a sub-tenant in the premises in dispute who vacated the same round about 9th August, 1976. In reply to this eviction petition, the petitioner has definitely stated that the sub-tenancy was created in the year 1944. In these circumstances, we are not inclined to interfere with the concurrent findings of fact of the two courts below on the issue that the sub-tenancy was created after the commencement of the Act of 1971, especially when there is no allegation of that type in the petition or the statement of the respondent. 9. In view of the above discussion, this revision petition is to be accepted and the orders of eviction passed against the petitioner on the ground of sub-letting have to be set aside. 10. As a result, the orders of the Rent Controller, Solan, dated 28th July, 1977, and the District Judge (as Appellate Authority under the Act), dated 12th July, 1978, are set aside and the present revision petition is accepted. The petition of the respondent seeking eviction of the petitioner is dismissed. 11. As legal points were involved in the case, therefore, the parties are left to bear their own costs throughout. Revision allowed.